# Pawan Mishra v. State Opp. Party

- **Citation:** (2022) 10 ILRA 884
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** Jail Appeal No. 3367 of 2010
- **Bench:** Siddhartha Varma, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-mishra-v-state-opp-party-47875
- **Pages:** 25

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 154- Ante-Timed FIR- As
per Tehrir Exhibit Ka-15, it was moved
before the S.H.O, Police Station New Agra
on 27.06.2005 and the same was also
entered in the G.D (Exhibit Ka-4) on the
very same day, at 6:30 p.m. at Rapat no.
62 and Chik No. 224/2005. Consequently
a Case U/s 364-A I.P.C was lodged- On the
back of the Chik F.I.R, the contents of
Tehrir had not been copied- It was the
10 All. Pawan Mishra Vs. State
885
duty of the concerned Constable Moharrir
to get the Tehrir copied on the back of
Chik F.I.R, if it is not so copied then it was
not the fault of the informant, and in fact
it was the mistake of Constable Moharrir.

Merely because the constable moharrir omitted
to copy the tehrir on the back of the Chik FIR,
the FIR cannot be said to be ante timed.

Code of Criminal Procedure, 1973- Inquest
report- It is not a substantive piece of
evidence- The whole purpose of preparing
the inquest report under Section 174
Cr.P.C. is to investigate into the cause of
death and also to draw up a report of the
apparent cause of it. The object of the
proceedings under Section 174 Cr.P.C is
only to ascertain whether a person had
died under suspicious circumstances or on
account of an unnatural death. The effort
is also to find out the apparent cause. The
question regarding details as to how the
deceased was assaulted or who assaulted
him or under what circumstances he was
assaulted, or who were the witnesses of
the assault is foreign to the ambit and
scope of such proceedings.

The purpose of an Inquest report is to only
ascertain the cause and manner of death with
description of the injuries on the body and is
therefore not a substantive piece of evidence.

The Indian Evidence Act , 1872- Section 6
- The conversation between the informant
Banwari Lal Sharma and the deceased
Jeevan alias Amar Sharma with regard to
their reaching Agra for employment and
with regard to the fact that the latter was
received by the accused Pawan Mishra,
and that both the deceased boys stayed in
hotel arranged by the accused and that
the
accused
demanded
of
ransom
everything is part of the same transaction.
The connected facts and evidence thereon
are relevant and admissible in evidence
under Section 6 of The Indian Evidence
Act.

The facts regarding the arrival of the deceased
at Agra, the accused having received them and
arranged for their accommodation would be
relevant facts as they form the part of the same
transaction resulting in the death of the
deceased.

The Indian Evidence Act , 1872- Section
32(1)- Conversation of the deceased
Jeevan alias Amar to the informant while
coming from Devghar and also from Agra
to the informant at Devghar is also
relevant and admissible in evidence under
Section 32 of the Indian Evidence Act-
Though
hear-say
evidence
is
not
admissible in evidence but in the event
the victim dies, his previous statements to
any living person become relevant and
admissible in evidence under Section 32
(1) of The Indian Evidence Act if it relates
to cause of his death. The statement
would be relevant in every case or
proceeding in which the cause of death of
that person is in issue. In Indian Law it is
not necessary that the person who made
any declaration was actually expecting an
assault which would kill him.

Although hear say evidence is not admissible in
evidence but any previous statement of the
deceased relating to his cause of death would
be relevant and the same will be treated as a
dying declaration.

The Indian Evidence Act, 1872- Section
106- Deceased persons were in company
of
all
the
three
accused
persons,
therefore, it is the burden of all the
accused-appellants
to
discharge
their
burden of proof under section 106 of The
Indian Evidence Act.

Settled law that once the prosecution discharges
its initial burden proving that the deceased was
in the company of the accused before he met a
homicidal death, then the onus shif

## Text

_Characters 0–39,957 of 84,012. This is a partial read: ask again with offset=39957 for what follows._

884 INDIAN LAW REPORTS ALLAHABAD SERIES
the incident in question. Apart from the
above P.W.-1 and P.W.-2 are interested
witnesses as P.W.-1 and P.W.-2 are brother
and cousin brother of the deceased
respectively and as such their statements
were
liable
to
have
been
minutely
examined when there is no independent
witness. The trial court has also not
carefully examined the site plan prepared
by the Investigating Officer qua the shifting
of place of occurrence.

40. In view of the above discussions,
we find that the trial court was not justified
in returning the finding of guilt against the
accused-appellants on the basis of evidence
led by the prosecution. Finding of the court
below that the guilt of the accused
appellant
has
been
proved
beyond
reasonable
doubt,
is
thus
rendered
unsustainable. We hold that the prosecution
has failed to prove the guilt of accusedappellants beyond reasonable doubt.

41. Consequently, in view of the
deliberation
held
above,
this
appeal
succeeds and is allowed. The judgment and
order of conviction of accused-appellants
dated 21.03.2007 passed in Session Trial
No. 830/06, by the Additional Session
Judge Court No. 6 Muzaffarnagar cannot
be legally sustained and is, hereby, set
aside. The accused-appellant no.1 Balister
is clearly entitled to benefit of doubt. As he
has already suffered incarceration of almost
15 years since the date of his conviction, he
is entitled to be released forthwith.

42. Accordingly, the present appeal
stands allowed.

43. The accused-appellant no.1
Balister shall be released on compliance of
Section 437-A Cr.P.C., unless he is wanted
in any other case forthwith.

46. We record our appreciation for the
able assistance rendered in the case by Mr.
Sheshadri Trivedi, learned Amicus Curiae,
who would be entitled to his fee from the
High Court Legal Service Authority,
quantified as Rs. 15,000/-

47. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Muzaffarnagar
henceforth,
who
shall
transmit the same to the concerned Jail
Superintendent for release of the accusedappellant no.1 Balister in terms of this
judgment.
----------
(2022) 10 ILRA 884
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Jail Appeal No. 3367 of 2010
connected with
Crl. Appeal No. 3490 of 2010

Pawan Mishra ...Appellant
Versus
State ...Opp. Party

Counsel for the Appellant:
From Jail, Sri V.P. Gupta, Sri Vindeshwari Prasad

Counsel for the Opp. Party:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 154- Ante-Timed FIR- As
per Tehrir Exhibit Ka-15, it was moved
before the S.H.O, Police Station New Agra
on 27.06.2005 and the same was also
entered in the G.D (Exhibit Ka-4) on the
very same day, at 6:30 p.m. at Rapat no.
62 and Chik No. 224/2005. Consequently
a Case U/s 364-A I.P.C was lodged- On the
back of the Chik F.I.R, the contents of
Tehrir had not been copied- It was the
10 All. Pawan Mishra Vs. State
885
duty of the concerned Constable Moharrir
to get the Tehrir copied on the back of
Chik F.I.R, if it is not so copied then it was
not the fault of the informant, and in fact
it was the mistake of Constable Moharrir.

Merely because the constable moharrir omitted
to copy the tehrir on the back of the Chik FIR,
the FIR cannot be said to be ante timed.

Code of Criminal Procedure, 1973- Inquest
report- It is not a substantive piece of
evidence- The whole purpose of preparing
the inquest report under Section 174
Cr.P.C. is to investigate into the cause of
death and also to draw up a report of the
apparent cause of it. The object of the
proceedings under Section 174 Cr.P.C is
only to ascertain whether a person had
died under suspicious circumstances or on
account of an unnatural death. The effort
is also to find out the apparent cause. The
question regarding details as to how the
deceased was assaulted or who assaulted
him or under what circumstances he was
assaulted, or who were the witnesses of
the assault is foreign to the ambit and
scope of such proceedings.

The purpose of an Inquest report is to only
ascertain the cause and manner of death with
description of the injuries on the body and is
therefore not a substantive piece of evidence.

The Indian Evidence Act , 1872- Section 6
- The conversation between the informant
Banwari Lal Sharma and the deceased
Jeevan alias Amar Sharma with regard to
their reaching Agra for employment and
with regard to the fact that the latter was
received by the accused Pawan Mishra,
and that both the deceased boys stayed in
hotel arranged by the accused and that
the
accused
demanded
of
ransom
everything is part of the same transaction.
The connected facts and evidence thereon
are relevant and admissible in evidence
under Section 6 of The Indian Evidence
Act.

The facts regarding the arrival of the deceased
at Agra, the accused having received them and
arranged for their accommodation would be
relevant facts as they form the part of the same
transaction resulting in the death of the
deceased.

The Indian Evidence Act , 1872- Section
32(1)- Conversation of the deceased
Jeevan alias Amar to the informant while
coming from Devghar and also from Agra
to the informant at Devghar is also
relevant and admissible in evidence under
Section 32 of the Indian Evidence Act-
Though
hear-say
evidence
is
not
admissible in evidence but in the event
the victim dies, his previous statements to
any living person become relevant and
admissible in evidence under Section 32
(1) of The Indian Evidence Act if it relates
to cause of his death. The statement
would be relevant in every case or
proceeding in which the cause of death of
that person is in issue. In Indian Law it is
not necessary that the person who made
any declaration was actually expecting an
assault which would kill him.

Although hear say evidence is not admissible in
evidence but any previous statement of the
deceased relating to his cause of death would
be relevant and the same will be treated as a
dying declaration.

The Indian Evidence Act, 1872- Section
106- Deceased persons were in company
of
all
the
three
accused
persons,
therefore, it is the burden of all the
accused-appellants
to
discharge
their
burden of proof under section 106 of The
Indian Evidence Act.

Settled law that once the prosecution discharges
its initial burden proving that the deceased was
in the company of the accused before he met a
homicidal death, then the onus shifts upon the
accused to discharge the said burden by
explaining the circumstances behind the death
of the deceased. (Para 16, 28, 52, 53, 55)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-

1. Brahm Swaroop Vs St. of U.P., A.I.R 2011 S.C.
280
886 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Nagaraj Vs St. Rep. (2015) 4 SCC 739

3. Babu Vs St. of Ker. (2010) 9 SCC 189

4. G. Parshwanath Vs St. of Kar. A.I.R 2010 S.C
2914

5. Sadik Vs St. of Guj. (2016) 10 SCC 663

6. Dasin Bai Vs St. of Chhattis. (2015) 89 ACC
337 SC

7. Sanjeev Vs St. of Har. (2015) 4 SCC 387

8. Mahavir Singh Vs St. of Har. (2014) 6 SCC
Page 716

9. Harendra Vs St. of Assam AIR. 2008 SC 2467

10. Himanchal Prashasan Vs Om Prakash AIR.
1972 SC 975

11. Ramanand Vs St. of H.P, AIR 1981 SC 3617

12. St. of U.P. Vs Ramveen Singh & anr. 2007
(6) SC 164

13. Nathiya Vs St. (2016) 10 SCC 298

14. Bhim Singh Vs St. of U.K., (2015) 4 SCC 281

15. Sharad Birdhichand Sarda Vs St. of Maha.,
(1984) 4 SCC 116

16. St. of W.B Vs Dipak Halder, (2009) 7 SCC

17. St. of Goa Vs Pandurang Mohite, AIR 2009
SC 1066

18. St. of U.P. Vs Satish, 2005 (3) SCC 114

19. Rohtash Kumar Vs St. of Har., 2013 (82)
ACC 401 (SC)

20. Prithipal Singh Vs St. of Punj., (2012) 1 SCC
10

21. Ashok Vs St. of Maha., (2015) 4 SCC 393

22. Bhagirath Vs St. of Har., (1977) 1 SCC 481

23. Pakla Narayan Swami Vs Emperor AIR 1939
PC 47
24. Sucha Singh Vs St. of Punj., AIR 2001 SC
1436

25. Sunder Vs St. AIR 2013 SC 777

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

(1) Heard learned counsel for the
appellant, Sri Vindeshwari Prasad and the
learned A.G.A for the State in Jail Appeal
No. 3367 of 2010 and Sri Phoolbadan
Yadav along with Sri Vishnu Shanker
Gupta (Amicus Curiae) for the appellants
and learned A.G.A. for the State in
Criminal Appeal No. 3490 of 2010 and
perused the material available on record.

(2) The instant appeal has been
preferred against the judgement and order
dated 13.04.2010 passed by Special Judge
(D.A.A), Agra in S.T No. 121 of 2005 (State
Vs. Pawan Mishra & Ors), arising out of
Case Crime No. 356 of 2005, under Section
364A, 302/201 I.P.C, Police Station New
Agra, District Agra whereby the accusedappellants have been convicted under Section
302 I.P.C sentencing them to undergo
rigorous imprisonment for life. They were to
pay Rs. 10,000/- each as fine. It was further
provided that on default of payment of fine
the appellants were to further undergo two
years of additional simple imprisonment.

(3) The court further convicted the
appellants under section 364-A I.P.C. and
sentenced the appellants to undergo rigorous
imprisonment for life and imposed fine of Rs.
5000/- on each of the appellants. Here again
it was provided that in default of payment of
fine the appellants would undergo one year
additional simple imprisonment.

(4) The trial court has further
convicted the appellants under section 201
I.P.C. sentencing the appellants to undergo
10 All. Pawan Mishra Vs. State
887
5 years of rigorous imprisonment and also
imposed fine of Rs. 5,000/- and further
provided that in default of payment of fine
the appellants would undergo one years
additional simple imprisonment. All the
sentences were to run concurrently.

(5) Brief facts of the case are that
informant
Banwari
Lal
Sharma,
s/o
Rameshwar Lal Sharma resident of Gali
Devghar P.S.- Devghar, District-Devghar,
Jharkhand lodged an F.I.R. (Exhibit-Ka-15)
on 27.06.2005 with the allegation that his
nephew Pawan Mishra, s/o Vashudev
Mishra,
resident
of
Mausoli
Bazar,
Raniganj,
P.S.-
Raniganj,
District-
Bardhaman, West Bengal presently residing
in the house of Natholi Ram Godala,
Bizapur Road, District- Agra left Raniganj
and came to Agra after killing his cousin
there. It was stated in the F.I.R. that
occasionally he used to come to the house
of the first informant and also used to talk
to the informant by his mobile no.
09219799101. In this conversation he also
promised to provide job to the informant's
nephew Amar @ Jivan Sharma, s/o
Puranmal Sharma. Owing to this promise
of Pawan Mishra on 11.06.2005, the
informant's nephew Amar Sharma and a
friend of his Victor @ Potan, s/o Vishnu
Dev
Varnwal,
resident
of
Kanutola,
District- Devghar, Jharkhand reached Agra
and on 12.06.2006, Amar @ Jivan
informed the first informant that he along
with his friend had reached Agra and also
informed the first informant about their
meeting with Pawan Mishra. After 2-3 days
had passed, Jeevan rang up the first
informant and told him that there was no
arrangement of any job. In response the
first informant told him to come back. On
15.06.2005, Pawan Mishra informed the
appellant that he was sending both the boys
back
via
Purva
Express.
When
on
16.06.2005, the boys did not reach home at
the given time then the first informant tried
to talk to Pawan Mishra to inform him that
the boys had not reached home. Pawan
threatened the first informant that they
would reach only when he would send
them and informed that he had abducted
both of them. On 17.06.2005, Pawan again
informed via telephone that the boys will
be released only after the ransom money
was
paid.
On
18.06.2005,
the
first
informant
informed
the
Deputy
Superintendent
of
Police,
Devghar
regarding the incident who in his turn wrote
a letter to the Superintendent of Police,
Agra, U.P. In the evening of 18.06.2005,
Pawan Mishra demanded Rs. 7,00,000/-
ransom via telephone and threatened that
he would cut the boys into several pieces if
the amount of ransom was not provided to
him. On 20.06.2005, Pawan again asked
via telephone and asked the first informant
to reach Gwalior with the money. He also
told him as to who was to be given the
money would also be informed. Thereafter,
the first informant without giving second
thoughts came to Agra and contacted the
District Magistrate, Agra who sent him to
the Superintendent of Police, Agra. Since
then the informant was searching for the
boys but they could not be traced out. He
requested the police to lodge an F.I.R. The
first information report was lodged and also
chik F.I.R. was prepared.

(6) Upon receiving the Tehrir (written
information), a case bring Crime No.
356/05 under Sections 364 I.P.C was
registered in Police Station- New Agra,
District Agra, and Chik F.I.R Exhibit-Ka-3
was prepared and entry of the said F.I.R
was made in G.D in Ex. Ka-4.

(7) After recovery of the dead bodies
of the abducted deceased persons namely
888 INDIAN LAW REPORTS ALLAHABAD SERIES
Victor @ Potan and Amar @ Jeewan
Sharma, Sections 302 and 201 I.P.C were
also added. The Investigating Officer
prepared the recovery memo of the dead
bodies and proved the same as Exhibit Ka16. He also prepared Ex. Ka-17 when the
two farm Shovels/Hoes and plain soil were
recovered. He also proved the map
prepared by him as Ext. K-18.

(8) After completing the investigating
he had submitted the charge sheets against
all the three accused appellants and had
proved them as Ext. Ka-19.

(9) Cognizance was taken on the chargesheets and trial commenced in the Court of
Sessions.
From
there
the
case
was
transferred for trial to the Court of Special
Judge (Dacoity Affected Area), presided
over by Sri Dileep Singh, who recorded
oral evidence. After the closure of the
prosecution evidence, the statements of the
accused persons were recorded under
Section 313 Cr.P.C, in which the accused
persons denied the charges. The accused
did not come up with any oral or
documentary evidence in their defence.
After conclusion of the trial and hearing of
the arguments, the lower court below found
the accused guilty for the commission of
offences of under Sections 364A, 302 and
201 I.P.C and convicted and sentenced the
accused persons.

(10)

Prosecution
has
produced
witnesses to prove the case. In brief
evidence of witnesses is reproduced as
under:

1. P.W.1 Dr. Amitabh, District Jail,
Agra deposed on oath that on 28.6.2005 he
was posted in Emergency Department of
District Hospital, Agra. That day at 4 p.m.
he had done autopsy of the dead-bodies of
deceased Amar Sharma alias Jeevan son of
Pooran. The dead body of one of the
deceased, namely, Amar Sharma alias
Jeevan alias was recognized by CP 345
Vijender and C.P. 982 Ram Rautang,P.S.
New Agra, The deceased was about 22
years old who had died two weeks ago.

On external examination following
facts were found. The body was rotten. The
teeth were loose and the brain was in a
fluid state. The tissues of the body were
soft and loose (cracked) and in semi liquid
state and had turned black in colour. There
was mud all around the bodies. The neck
muscles were partially in a fluid state. The
hyoid bone of the neck was found to be
broken. The stomach of the deceased was
stored. One kidney, the whole spleen, liver
and some parts of the intestines were also
stored.

Decay was present in the skin of the
deceased.

In the internal examination, it was
found that the brain and membranes were
in liquid state, Chest and pleura were in
liquid state, both lungs and heart were in
liquid
state,
abdominal
muscles
and
membrane were in a liquid state. Red stops
were found in the stomach, gas was present
in the chest and large intestine. It was soft
and loose. Spleen and kidney had become
soft. As the cause of death was not fixed
the viscera was pserved. According to this
witness P.W.1 the deceased had died in
between 12.6.2005 and 15.6.2005. This
witness recognized his signature and
writing on Ext. A-1 and A-2, in both the
Post mortem reports. During the course of
cross-examination this witness admitted
that he could not say as to how these two
dead persons had died because their dead
bodies were rotten and it was not possible
to identify the ante mortem injuries. He
admitted that he had mentioned the time of
10 All. Pawan Mishra Vs. State
889
death about two weeks prior to the post
mortem in which there may be possibility
of three days variations. He admitted that
the condition of the dead bodies were such
that they were not easily identifiable. He
had not mentioned any identification mark
on the body of the dead bodies. Further he
deposed
in
cross
examination
that
temperature in the month of June remains
45 degree Celsius and decomposition starts
after 24 to 36 hours after death. According
to him the bone and flesh were not
separated.

On the same day he did post-mortem
of the dead-body of deceased Victor alias
Potan. According to him the deceased was
about 23 years old and had died about two
weeks ago.

External Examination:-

There was decomposition in the body.
The teeth in the socket were loose. The
brain had changed to a fluid state. The
tissues of the body had become soft and
loose and had turned into a semi liquid
state. The stomach and intestine were
coming out of the stomach. There was soil
on the body. The muscles of the neck were
partially liquid. The neck (hyoid bone) was
broken (from left side). Viscera was
preserved. In Jar-'A' the stomach, in Jar-'B'
the kidney, the whole spleen and the piece
of intestine were kept in Jar-'C'. Salt
solution was also kept. The genital skin had
rotten.

Internal Examination:-

The brain and membranes were in
liquid state, Chest wall was in a liquid
state, both lungs and heart were partially in
liquid state. The abdominal muscle and
membranes were in a liquid state, red
coloured spot were found in the stomach,
gas was present in the chest and large
intestine, liver was soft and loose. As the
cause of death could not be ascertained,
therefore, the viscera was preserved.

This Court is of the opinion that from
the oral evidence it is established that after
administering sleeping pills in lassi to the
deceased persons when they became
unconscious, they were strangulated and
thereafter were buried one by one. Thus it
is obvious that the cause of death of the
deceased persons was the breaking of their
hyoid bones. Thereafter they were buried
under the earth. In Ka-24 FSL Report Agra
no poison has been found in the viscera and
other parts of the body of the deceased
persons. It is also noteworthy that no
suggestion has been given to this witness
that dead bodies were not of the alleged
persons but of some other persons.

P.W.2 S.I. Satya Veer Singh has
deposed that on 27.6.2005 he was posted as
constable clerk in P.S. New Agra. He
further deposed that on the basis of tahrir of
the informant Banwari Lal Sharma written
by Amit
Kumar
a
case
as
Crime
No356/2005 under Section 364-A IPC State
Vs. Pawan Mishra was registered and a
chick no.224 was prepared. This witness
has proved this chick FIR as Ex.Ka-3.
Further he deposed that at 6.30 p.m. he had
also prepared GD No.62. He also proved it
by comparing it with the original GD as
Ex.Ka-4. In cross-examination this witness
deposed that he had given statement to the
IO on 27.06.2005.

P.W.3 Anupam Sharma, SI deposed
that on 27/28.6.2005 he was posted as SI at
P.S. New Agra and had prepared inquest of
deceased Amar Sharma @ Jivan and Victor
@ Potan. This witness has proved inquest
Ex.Ka-5 and related papers such as challan
nash, photonash letter to RI and CMO as
890 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex.Ka-6 to Ex.Ka-9 and Ex.Ka-11 to
Ex.Ka-14. In the cross-examination this
witness admitted that skin and flesh of both
the dead bodies were rotten. Bones were
visible. There was no identification mark
on the corpse. The flesh of nose, ear were
also rotten.

It is noteworthy that no suggestion has
been given to this witness that dead bodies
were not of the alleged persons.

P.W.4 Banwari Lal Sharma son of
Rameshwar Lal Sharma aged about 50
years resident of Vaijnath, P.S. Devghar,
Jharkhand has deposed on oath that
deceased Amar Sharma @ Jivan Sharma
was his real nephew. Another deceased
Potan @ Victor Barnwal was friend of his
nephew. Accused Pawan Mishra who was
present in the Court is his nephew (sister's
son) who after committing murder of his
cousin (brother) in Raniganj Bardwan,
West Bengal had come to Agra. He used to
visit the informant's house regularly. Pawan
Mishra called the first informant's nephew
Amar Sharma to Agra on the pretext of
getting him a job. On 12.06.2005 Amar
Sharma reached Agra with his friend Victor
@ Potan. His nephew thereafter phoned up
the first informant and told him that he and
his friend had reached Agra and were with
Pawan Bhaiya. When till 15.06.2005 the
nephew could not get any job then P.W. 4
told his nephew to come back to Devghar
on 15.06.2005. Pawan Mishra told P.W.4
on the phone that both the boys had been
sent back by the Purva Express. When on
16.06.2005 they did not reach home on the
scheduled time, the P.W.4 was informed by
Pawan Mishra that the children had not
reached home yet. Then Pawan Mishra told
the first informant that the children would
reach only when he would send them.
Further he told the first informant that he
had kidnapped both the boys and after
saying so the accused Pawan Mishra hung
up. On 17.06.2005 Pawan Mishra called
him up again and said that only if money
was given to him would he release the
children. On 18.06.2005 he informed DSP,
Devghar about the incident who in his turn
gave him a departmental letter in the name
of the DSP, Agra. On 18.06.2005 in the
evening Pawan Mishra again made a call
that only if Rs. 7 lac were given would he
release the children else he could cut them
into pieces. Pawan Mishra used to talk
through his mobile phone till the 15th June,
2005 and after 15.06.2005 he called from a
P&T booth (STD). Pawan Mishra had
again made a call on 20.06.2005 and had
said that the money could be delivered in
Gwalior. He had said that he would,
ofcourse, tell later as to where and when
the money would be given. Further this
witness deposed that on 22.06.2005 he had
left Devghar for Agra and had reached Agra
and met the DM Agra and had given the
application regarding the incident. The
D.M. in his turn sent him to the SP, Agra.
Thereafter he, with his companion, Munna
Kumar, elder brother of the deceased Victor
and others met the S.S.P., Agra and also
gave him the departmental letter. Further,
he deposed that he with other persons
remained busy with the searching of the
children. The S.S.P. asked him to report the
matter at the PS New Agra. Resultantly on
27.06.2005 he presented a tahrir written by
one Sri Amit Kumar on his direction on
which a report was lodged in PS New Agra.
This witness admitted that Amit Kumar had
written what he had told him. This witness
has admitted his signature on the tahrir
which is exhibited as Ex.Ka-15. According
to him IO had recorded his statement. On
27.06.2005 when he and his friends were
searching his nephew and his friend with
SHO PS New Agra on a government
vehicle and were going from Deevani
Cross Road to Khandari via Bhagwan
10 All. Pawan Mishra Vs. State
891
Talkies, he found Pawan Mishra who was
coming from the side of the RBS College.
On the pointing of the P.W.4 the Inspector
saw Pawan Mishra for the first time. Seeing
the police Pawan Mishra started running
and the police chased him and ultimately
caught him and told him that a case was
registered against him and brought him to
the police station and interrogated him. He
admitted his guilt and also confessed that
he with his friends Kripal Kumar Sahu and
Dinesh Kumar Sahu had administered
sleeping pills in lassi and thereafter has
strangulated the two boys and had buried
them in the temporary hut of Dinesh Sahu
near Friends Apartment at Mau Road.
When the present witness with the police
and Pawan Mishra reached the house of
Kripal Sahu and Dinesh Kumar Sahu they
were
found
there.
Pawan
Mishra
recognized them and confessed that he
along with them had committed the murder.
On the pointing of the accused persons they
went to the hut of accused Dinesh Sahu
where two shovels/hoes used for digging
the earth were also recovered. For hiding
the dead bodies, the floor was cemented.
When the floor was dug the dead body of
Victor appeared first and after some more
digging the dead body of Amar Sharma @
Jivan Sharma was also found. Both the
dead bodies were taken out and recognized.
Police prepared inquest report and made
him witness of the inquest. The police had
made the recovery memo by taking two
shovels and plain soil from the spot. IO had
recorded his statement on 28.06.2005.

The witness has been cross-examined
by the accused persons Dinesh and Kripal.
In the cross-examination this witness
admitted that the tahrir was written by Amit
Kumar while sitting in the hotel President.
On 27.06.2005 he knew that accused
Pawan Mishra lives in the house of Natholi
Ram at Bichpuri Road. He deposed that
Pawan Mishra himself had taken the
deceased from the railway station. He had
deposed that he had faith in Pawan and had
thought bonafidely that he would help the
boys in getting the jobs and, therefore, he
had sent the two boys. This witness
admitted that he had come to Agra on
23.06.2005 and had searched for the
accused and the deceased at his own level
while staying at Hotel President. Further he
deposed that he was not knowing the
accused Dinesh and Kripal prior to the
recovery of the dead bodies. He admitted
that he had visited the place of occurrence
twice, once at the time of recovery and
again when IO was preparing the site plan.
He admits that at the time of recovery he
saw that there was under garment on the
body of deceased Victor @ Potan but the
dead body of deceased Amar @ Jivan was
naked. According to him Pawan Mishra had
informed that the hut was of Dinesh.
Dinesh and Kripal had admitted before him
and the police that they had killed both the
boys. Accused Pawan Mishra had not
cross-examined the witness in spite of
many opportunities being given by the
court.

P.W.5 Sawar Mishra has deposed that
on 27.06.2005 he had come to Agra after
receiving the information of the informant
Banwari Lal Sharma. He has deposed that
informant Banwari Lal Sharma narranted to
him the story that Pawan Mishra had called
the deceased Amar @ Jivan and his friend
Victor for providing them employment in
Agra. When after 2-3 days they had
informed that they had not found any job
then Banwari Lal Sharma had asked them
to come back. When they did not reach
then Banwari Lal Sharma had contacted
Pawan Mishra who informed that he had
sent them by Purva Express. When still
both the boys did not reach at the scheduled
time, Banwari Lal Sharma again had
892 INDIAN LAW REPORTS ALLAHABAD SERIES
contacted Pawan Mishra who had informed
that the boys had been kidnapped by him.
On this information he also came to Agra
and had met the District Magistrate who
had sent them to SSP, Agra who had
assured help and thereafter on 27.06.2005
Banwari Lal went to P.S. New Agra and
had given the written tahrir. Thereafter
police with their assistence had arrested the
accused Pawan Mishra who was present in
the court at the time of deposition of this
witness. This witness further deposed that
Pawan Mishra confessed before him and
the police that he with the help of Dinesh
and Kripal had killed both the boys.
Thereafter when they reached the place of
occurrence with him, Dinesh and Kripal
were also found. All the three accused
persons also confessed that after killing
Jeevan Sharma and Victor they had buried
them under the earth and had cemented the
floor after keeping bricks below the
cement. There were two Shovels inside the
hut. On asking by police all three dug the
the floor and the earth. First the dead body
of Victor was found and there after the dead
body of Jeevan was recovered. The legs of
deceased Amar and Jeevan were tightened
with ropes. They recognized the dead
bodies. Recovery memo was prepared on
the spot. This witness recognized his
signature on the recovery memo. This
witness has been cross examined by
Accused Dinesh and Kripal where he
admitted in the cross examination that he
was
brother-in-law
of
Banwari
Lal.
According to him all the accused persons
had pointed out the place of burial of the
dead bodies. He admitted that it is not in
his memory as to whether the recovery
memo was read over or not. He admits that
he signed the recovery memo without
reading. He admitted that the dead bodies
were rotten but they could be recognized.
According to him the last ritual of dead
bodies were conducted by him, Banwari
Lal and Munna on the cremation ghat at
Agra. Accused Pawan Mishra did not crossexamine this witness.

P.W. 6 Tejbeer Singh, Inspector, I.O.
of the case has deposed that on 27.6.2005
he was posted as SHO New Agra where, in
his presence at 6.30 p.m., informant
Banwari Lal Sharma had lodged the FIR.
He started investigation, copied FIR, G.D.,
wrote the statements of constable Moharir,
Satya Veer Singh and informant Banwari
Lal Sharma. According to him informant
had told him that Pawan Mishra had
demanded ransom money from him. When
he, the S.P., Sri R.K. Tiwari with the
informant and his companions reached
Bhagwan Talkies, the SOG team met there.
When he, along with the first informant and
his
companion,
was
going
towards
Khandari Chauraha, Banwari Lal and his
friends informed that the person who was
coming from the side of the RBS College
was Pawan Mishra. Thereafter the vehicle
was stopped and after chasing and after
using the usual force, arrested him at 7.45
p.m. Accused Pawan Mishra was lodged in
the lockup of New Agra P.S. as per G.D.
No. 65 at 8.15 p.m. When Pawan Mishra
was interrogated before the informant
Banwari Lal and Sawar Mishra, he had
informed that due to family enmity he had
killed his cousin Shiv Mishra aged about 11/2 years. After being released from jail he
had gone to Agra for labour work. During
the course of construction in Pushpanjali
Mariya, Katra he came in contact of Dinesh
Sahu and Beldar Kripal Sahu and started
labour work together. His house at
Raniganj was occupied and sold by his
uncle. He therefore wanted to repurchase it
and for that he needed money. For this
purpose he thought that his maternal Uncle
Puran Lal Sharma and Banwari Lal Sharma
could be used. He used to talk with Jeevan.
10 All. Pawan Mishra Vs. State
893
On 11.6.2005 Jeevan informed that he was
coming to Agra with his friend Victor by
express train. They had stayed with him for
two to three days in the Shalimar Hotel. On
14.6.2005 he with the two boys had gone to
the room of Dinesh Sahu at Mau Road
where Dinesh and Kripal met him. They
had already made up a plan. After reaching
there he procured Lassi and diluted
Sleeping Pills therein. After drinking the
same they became unconscious. There after
a problem arose that where they would be
kept. As no proper place was available for
hiding them and there was fear of exposure
of the plan, they strangulated both the
deceased persons in the hut of Dinesh and
after digging the earth buried them. After
keeping some bricks on the dead bodies
they cemented the floor. Clothes and shoes
of the deceased were burnt in the vacant
plot of land. After the confession of the
accused Pawan Mishra, he was taken from
the lock up to the house of Dinesh Sahu,
where on Pawan Mishra's pointing two
persons namely Dinesh Sahu and Kripal
Sahu were found who also informed that
they had killed the Deceased Jeevan
Sharma and Victor. The other two accused
persons were also arrested. They were
apologetic for their act and informed that
owing to their greed for money they had
killed the deceased persons and had buried
them after digging a pit in the hut of Dinesh
Sahu. They also pointed out the two
shovels and told that with those two
shovels they had dug the pit and had buried
the dead bodies. This witness proved both
the shovels as material Ext.-1 and 2. All the
three accused persons after removing the
bricks from the cemented floor had dug
further for three feet and took out the
corpse of the deceased Victor which was
recognized by his brother Munna and
informant Banwari Lal. After digging a
further one and half feet soil another dead
body which was of Jeevan was taken out by
the accused persons which was recognized
by Banwari Lal Sharma and his friends.
After recognizing both the corpses he
prepared fard of shovels and plain soil in
the hand writing of R.K. Tiwari which was
signed by the accused persons also. The
witness proved this recovery memo as Ext.
Ka-17. Recovery of dead body was also
prepared in the hand writing of R.K. Tiwari
which has been signed by the witnesses.
This witness has proved the recovery
memo as Ka-16. The box of plain soil was
marked as material Ext.-3 and Soil as
material Ext.-4. According to this witness
in the night after making arrangement of
light, inquest and map of the place was
prepared there in his hand writing and
signature. Map is exhibited as Ext.-Ka-18.
He recorded the statements of Accused
Dinesh and Kripal on the spot and also
recorded the statements of Munna Kumar
elder brother of the deceased Victor and
informant Banwari Lal Sharma, Amit
Kumar and Sawar Mishra. He copied the
inquest on 29.6.2005 and recorded the
statements of the witnesses of the inquest.
He recorded the statements of SI, Anupam
Sharma and Ram Ratan on 3th July, 2005.
He again recorded the statements of
accused Pawan Mishra on 13.8.2005 with
the permission of the Court and on
30.8.2005 he submitted charge-sheet Ext-
Ka-19 against the accused Pawan Mishra,
Dinesh Sahu and Kripal Sahu.

Only accused Dinesh and Kripal crossexamined the witness. Accused Pawan
Mishra was provided ample opportunity but
he did not cross-examine this witness also.
In cross-examination he has admitted that
the copy of the chick FIR was provided to
the informant. He admitted that he had
taken photographs of the deceased persons
but they were not on record. He admitted
that in the map which was Ext. Ka-18 date
894 INDIAN LAW REPORTS ALLAHABAD SERIES
of preparation had been left but denied the
suggestion that it was made prior to the
lodging of the FIR. According to this
witness there were 10-12 huts in the shape
of rooms where labourers used to live. He
admitted that except the informant and his
companions no other person had been made
a witness. He admitted that he had not
written the length and width of shovels and
its sticks. He admitted that a part of one of
the shovels was broken but it is not written
in recovery memo. He admitted that no
chemical poison was found in the viscera.
The rope by which the legs of the deceased
were tied was not before him in the Court.
He
admitted
that
mobile
number
9219799101 was in the name of Ajanta
Agarwal and not in the name of accused
Pawan Mishra. He denied the suggestion
that both the deceased are alive and they
had not died. He denied that accused
Dinesh and Kripal were caught from the
place of thekedar Om Prakash and they
were not living at the place of occurrence.

Documentary evidence

(a) Ext. Ka-1 and Ka-2 Postmortem report of Jeevan Sharma and
Victor respectively

Ext. Ka-3 Chik FIR

Ext. Ka-4 kayami GD regarding
lodging FIR on 27.6.2005

Ext. Ka-5 Inquest report regarding
deceased Amar Sharma alias Jeevan

Ext. Ka-6 Police form-13

Ext. Ka-7 letter to RI

Ext. Ka-8 letter to CMO

Ext. Ka-9 photo nas deceased Amar
Sharma alias Jeevan

Ext. Ka-10 Inquest report regarding
deceased Victor alias Potan

Ext.
Ka-11
Police
form-13
regarding deceased Victor alias Potan

Ext. Ka-12 Letter to RI about
deceased Victor

Ext. Ka-13 Letter to CMO about
P.M. of deceased Victor

Ext.
Ka-14
Photo
Nas
about
deceased Victor

Ext. Ka-15 Tahrir

Ext.
Ka-16
Recovery
memo
regarding dead bodies of the deceased
persons

Ext.
Ka-17
Recovery
memo
regarding two shovels and plain soil

Ext. Ka-18 map

Ext. Ka-19 Charge-sheet

The FSL report is on record as
Paper No. Ka-24 which has not been
exhibited but it is liable to exhibited
being admissible in evidence under
Section 293 Cr.P.C.

Material Exhibits

1- M Ext. 1 and 2- Shovels

2. M Ext. 3 box of the plain soil

3. M Ext. 4 plain soil

Accused Pawan Mishra has denied all
the allegations in his statement under
Section 313 Cr.P.C. and though he had
stated that he was filing papers in his
defence but had not filed any documentary
evidence in defence. He said nothing about
the incident.

Accused Dinesh has also denied all the
questions asked under Section 313 Cr.P.C.
and has said that he was living in Bichpuri
and used to work with Thekar Om Prakash
wherefrom the Police had caught him.

Accused Kripal Kumar Sahu has also
denied all the questions asked under
Section 313 Cr.P.C. and had stated that he
had come for doing labour work from
Bilaspur and was living with Om Prakash
and used to do labour work.
10 All. Pawan Mishra Vs. State
895

During the course of trial accused
Pawan Mishra did not properly participate.
He neither arranged for any private counsel
nor took the help of any amicus curiae.
Lastly, an advocate was arranged by him
but he did not permit him to argue the case.
On several dates he had not signed the
order sheet. He moved several complaints
against the investigating officer and the
Presiding
Officer
due
to
which
investigation was also transferred many
times. Several times he did not crossexamine the witnesses, therefore, the trial
took long to conclude. The trial however
had ended in conviction.

(11) Being aggrieved, the present
appeals have been preferred.

(12) The appellants in Criminal
Appeal No. 3490 of 2010 have taken
following grounds:

(i) That the conviction and sentence is
against the weight of evidence on record,
contrary to law and very severe. No
independent witness has been examined by
prosecution during the trial. The impugned
judgment and order is wholly illegal,
arbitrary and not sustainable in the eye of
law and is liable to be quashed as it has
been passed without considering the facts
and evidence used by prosecution. The
impugned judgment and order is against the
principles of law and cannot be sustained in
the eyes of law, therefore, the appeal be
allowed and the impugned judgment and
order dated 13.4.2010 be set aside.

(ii) In Jail Appeal No. 3367 of 2010
appellant Pawan Mishra has simply
forwarded an application from the jail
treating the same to be memo of appeal.

It is noteworthy that the appellant
Pawan Mishra has not cooperated during
the course of trial. He did not engage any
private counsel and when he was asked to
take the help of amicus curiae he had
refused to take the help of any legal
professional as amicus curiae and even he
himself did not cross examine any of the
witnesses.

Though he had denied the charges as
levelled against him and had sought trial
but when the lower court provided
opportunities for cross examining the
witnesses, he refused to do so and lastly the
trial court had closed the cross examination
on his behalf.

(13) This appeal is being decided as
under :-

The Tehrir Ex. Ka -1 5 to lodge F.I.R
was lodged before the S.H.O, P.S New
Agra, District Agra, by the first informant
Banwari Lal Sharma. It was reduced into
writing by one Sri Amit Kumar. Thereafter
Chik F.I.R was prepared as Exhibit Ka-3, in
which it was mentioned that there was
delay in lodging the F.I.R.