Previous Statement Of Deceased Admissible U/S 32 (1) Evidence Act If It Relates To Cause Of Death; Expectation Of Death Not Necessary: Allahabad HC

The bench of Justice Siddhartha Varma and Justice Umesh Chandra Sharma further clarified that under Indian Law, it is not necessary that the person who made any declaration was actually expecting an assault that would kill him

With this, the bench upheld the sentence of life imprisonment awarded to 3 accused who kidnapped and murdered 2 boys, who were called by them to Agra on the pretext of providing them jobs.

From a perusal of the facts and the evidence brought in the case, the Court held that it was established by the prosecution that the accused had mens-rea to kidnap and abduct the deceased persons for obtaining a ransom, and for this purpose, first of all, they prepared a plan and in furtherance of the plan, the accused Pawan Mishra called the boys for employment purposes and when they came to Agra they were killed and thereafter buried.

The case in brief

Accused Pawan Mishra asked the First Informant (his uncle) to send his nephew/deceased (Amar @ Jeevan Sharma) to Agra where he would be provided with a Job. The deceased went to Agra with his friend (Victor) on June 12, 2005. After 2-3 days, Amar informed the informant on the phone that no arrangement for a job/service was there. Upon knowing this, the first informant had asked him to return.

Now, on June 15, 2005, Pawan Mishra (accused) informed the informant that the boys had been sent back by train, however, when the boys did not reach on June 16, 2005, then the informant contacted Mishra (Accused) on his mobile phone and that is when he told him that he had abducted the boys and that they would be only returned once the ransom is paid.

Pursuant to the registration of the FIR, the accused was arrested and he confessed that since he was in the need of money for repurchasing his paternal house, which was sold away earlier by his uncle, he hatched a plan to ask for ransom from the first informant after kidnapping Amar and his friend Victor.

On his pointing, two other accused persons Dinesh Sahu and Kripal Sahu were also arrested and the three accused, thereafter, took the police to the place of occurrence where the dead bodies of the deceased persons were recovered along with the Shovels/Hoes, which were used in digging and burying the two dead bodies; Jeevan and Victor.

Following the trial, the accused were sentenced to life imprisonment after they were found guilty of committing the offence under sections 302, 364A, and 201 IPC. Challenging the judgment, all three accused moved to the High Court.

Court's observations

At the outset, the Court rejected the argument of the counsel for the defence that the dead bodies were not identified. Essentially, the defence counsel argued that since the dead bodies were in such a state that no person could have recognized them and it was not proved beyond reasonable doubt that these two dead bodies were of Amar @ Jeewan Sharma and Victor @ Potan

The Court observed that the dead bodies were recovered upon the pointing of accused persons, especially on the pointing of the accused Pawan Mishra, who had called the deceased to Agra for giving them employment.

The Court also noted that during the cross-examination, no question was raised with regard to the identity of the dead bodies, therefore, this argument can't be raised in the appeal.

Further, the Court observed that the conversation between the informant 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 the hotel arranged by the accused and that the accused demanded of ransom everything is part of the same transaction and thus, the same would be relevant and admissible in evidence under Section 6 of The Indian Evidence Act.

The Court further opined that the 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.

In this regard, the Court was of the view that the information given by the deceased persons before their death to the informant was admissible in evidence against the accused persons under Section 32 (1) of the Indian Evidence Act as the same would be termed as their dying declaration and it was immaterial that they were not under an expectation of death when they made such statements to the informant.

The Court further noted that since it was established that deceased persons were in the company of all the three accused persons, therefore, it was the burden of all of them to discharge their burden of proof under section 106 of The Indian Evidence Act, however, they failed to give any explanation of the death of the deceased persons.

Taking into account all the relevant circumstances of the case and perusing the evidence on record, the Court did not find any illegality with the Court's order as it remarked thus:

"The course of this case began on 11.6.2005 when the deceased commenced their journey and reached Agra on 12.6.2005. Thereafter they ended in the hands of accused persons. In between the chain of all the facts and evidence have been fully connected and established by the prosecution. The chain of circumstantial evidence is intact and established without breaking. Therefore, this Court is of the opinion that by proving motive, Mens-rea, demand of ransom and lastly recovery of the dead bodies from the person who had demanded ransom, the prosecution has successfully proved the case beyond all reasonable doubt against the accused persons. It is established that except the accused persons none else would have committed the murder and have buried both the deceased persons under the earth at the place of occurrence. Therefore, we find no infirmity in the appreciation of evidence in connection with conclusion drawn by the trial court."

Case title - Pawan Mishra v. State of U.P. along with the connected appeal

Case Citation: 2022 LiveLaw (AB) 450

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