Ram Prasad Sharma v. the State of Bihar

Sikri, J. Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges. Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under s. 302, I.P .C. Sheo Prasad Sharma was charged under s. 302 for having intentionally caused tlu: death of Qudrat Mian by shooting him down with his gun whereas Ram Prasad Shanna was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person. ; · ' The Second Additional Sessions· Judge, Bhagalpur, convicted Sheo Prasad Sharma under ss. 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisomnent. The appel­ lant, Ram Prasad Sharma was convicted under ss. 326/ 149, 324/ 34, 201 and 148, I.P.C. and sentenced to four years rigorous im­ prisonment. Seven other accused were also convicted but it is not necessary to mention the sections under which they were convicted. Five of the accused persons were acquitted by the learned Second Additional Sessions J ~dge .. Two appeals were filed before the High Court, one by the State and the other by the nine convicted persons, including Ram Prasad Sharma. Both the appeals· were heard together. The High Court accepted the appeal of the State as far as Ram Prasad Sharma was concerned and convicted him under s. 304, I.P.C., in connection with the shooting an4 causing the death of Kaleshwar and sen­ tenced him to rigorous imprisonment for seven years. The con­ victions of seven others were altered from under ss. 326/149 to one under ss. 304/ 149 but the sentence of four years rigorous im­ prisonment was maintained. In other respects the convictions were maintained. The High Court, however, quashed the convic­ tions under s. 201, I.P.C. Th.e nine convicted persons filed petition for special leave to appeal. This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is now before us. · fhe prosecution' case as accepted by the High Court was, in brief, as follows. On August 15, 1960, at about 1.30 or 2 p.m., by the side of a Danr (water channel) known as Chaksafia Dam at viHage Bindi about five miles away from Police Station Banka, a senous occurrence took place. The Chaksafia Danr runs bet­ ween village Bindi which is to its east and Banki which is to its west and then goes, further north to village Bhadrar and other villages. Lands ot several villages, namely, Bhadrar, Nayadih .. Uprama. Basuara, Jitnagar, Majhiara, Banki, etc. are irrigated from the water o~ this Danr and there are detailed entries rcgard­ Ll+Sup.C. l 69-15 696 SUPREME COURT REPORTS LlnOJ 1 s.c.a. ing the respective rights of the different villages in the Fard Ao11ashi wruch was prepared at the time of the last survey. It appears that the villagers of diJierent villages who enjoy the above ngnts go m 1n a bOdy every year during the rainy season for clearing tnis Da11r in order tnat there may not be any obstructiOJI in the fiow ol water therein. On the date of occurrence, i.e. August 15, 1960, a number of pers~ns of villages Bhadrar, Nayaaih, Uprama, .dasuara, Jitnagar and Bhatkunki went along witn spades to clear this Danr m the usual course a.lid some or them had lathis also with tnem. The total number of persons were estimated to vary from about 150 to about 400. When they reached the brick kiln, which exu•ts in Ma!mala Tikar they were confronted by a mob of 40 to 50 persons including all the convicted persons. Sheo Prasad Sharma and Ram Prasad Sharma were armed with guns and Patel Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhaJas. It may be mentioned that in the First Information Report Dhanusdhari Mehta was aileged to have been armed with a pistol Jl but this allegation was subsequently given up. Dhanusdhari Mehta D was a retired inspector of police; his son Ram Prasad Shanna was a practising lawyer at Bhagalpur at the time of the occurrence in question. On seeing this crowd of villagers, Sheo Prasad Sharma directed them to return and threatened to shoot them if they failed to do so. There wa~ some exchange of hot words and brick-bats were thrown by both sides. Sheo Prasad Sharma thereafter fired one shot to­ wards the sky but the villagers did not disperse. Then Dhanus­ dhari ordered his two sons Ram Prasad Sharma and Sheo Prasad Sharma to open fire on the villagers. On this both Ram Prasad Sharma and Shea Prasad Sharma opened fire with their guns on the villagers. One shot fired by Sheo Prasad Sharma bit one Qudrat Mian and he fell down and died on the spot. One other villager was alleged to have been shot by Ram Prasad Shanna and he died on the spot. A number of vill~gers sustained gun shot in­ juries and as a result of the firing by Sheo Prasad Sharma and Ram Prasad Sharma, who are estimated to have fired about 12 rounds, the villagers dispersed. Sobhan Manda!, one of the injured persons went to the Police Station with three other injured persons, namely, Chotan Rai, P.W. 5, Jagdeo Choudhary, P.W. 8 and Kishori Prasad Singh. P.W. 12, whc had also sustained gun shot injuries The learned Additional Sessions Judge had rejected the prose­ cution story that K<tleshwar Yadav was shot and killed during the occurrence. He hau come to the conclusion tnat Kaleshwar Yadav had died prior to the date of occurrence. The High Court has accepted the prosecution version and it is this finding which is II ~--' r( " R. P, SHARMA v. BIHAR (Sikri, J.) 697 A being seriously challenged by the learned counsel for Ram Prasad Sharma, appellant. The learned Additional Sessions Judge had rejected the version of the prosecution regarding the shooting down of Kaleshwar Yadav mainly on the basis of entries in an attested copy of the Chaukidar's hath chitha (Ext. D) according to which the death of Kaleshwar took place in Gopalpur mauza on August 12, 1960, that is, three days prior to the occurrence. The learned Additional Sessiobs Judge had. alsci relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention. Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Y adav was shot down by the appellant Ram Prasad Sharm.a. According to the e,ntries in ihis document, Ext. D, Kaleshwar Yadav died on August 112, 1960, in Gopalpur Mauza and in the remarks column. of' this register· he is described as "Bahanoi (brother-in-lawfof Asarfi Yadav." We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy; had been obtained by the defence. The only dates this doc1.\ffieilt bears are the date of attestation (October 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission .by the Additional Sessions Judge (June 25, 1962). As rightly pointed out by the High Court the learned Sessions Judge took this copy on record in an extraordinary manner. The prosecutiqn evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof. On the same day an order was passed calling for the original. On 'the very next day the public prosecutor filed a petition objecting to the admission of this document and alleged that the document was l:Jogus. The hearing of the argnment there­ after proceeded on July 4, 1962. The Public Prosecutor again filed a petition that this document be not taken in evidence. The learned Additional Sessions Judge disposed of this petition with the following order : "Let the petition be placed with the record. The original has once again been called for. The matter will be discussed in the judgment." 11t is pointed out brthe High Court that there is no further refe rence to the document in the order .sheet. After the argument~ concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions fudge shows that the original w .. ; subs~quently received by him with Jetter dated July 10, 1962, and he observed that he was satisfied about 698 St;PREME COURT REPORTS (1970] I S.C.R. its genuineness. The High Court rightly pointed out that the Additional Sessions fodge should have dealt with the question of the admissibility of the document. The High Court, following Sanatan Senanari v. Emperor(') and Brij Mohan Singh v. Priya Brar Narain Sinha('), held that the document was inadmissible in evidence. We agree with the conclusion arrived at by the High Court. Section 35 of the Evidence Act provides : "An entry m any public or other official book, register or record, stating a fact in issue or r.:llevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself l relevant fact." In this case it has net been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in Brij Mohan Singh v. Priya Brat Narain Sin/ta,(') "the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue 01 a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high." No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible. The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually ~hot down by the appellant, Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these. findings but he has not been able to show in what way the High Court has gon~ wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further, Kaleshwar's son and widow, P.Ws 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his hause with a kudal and had gone to Chaksafia Danr alongwith others. They further deposed that on the next day they learnt from Nandai Lal Singh, P.W. 17, that Kaleshwar had been killed. The High Court further accepted the explanation of P.W. I, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram Prasad because he had heard a hul/a that Gholtan had been murdered. It seems to us that the Higu Court came to a correct (!) A.l.R. 1945 Pat. 41!9. (2) (1965] 3 S.C.R. 861, 864. R. P. SHARMA v. BIHAR (Sikri, /.) 699 conclusion and was right in accepting the explanation of P.W. 1. The learned counsel further contends that it was doubtful that 12 rounds would have been fired. He points out the number of injuries received by the villagers. But these injuries support the prosecution story. .From the injuries on the various persons examined by Dwl)l"ka'.Nath Prasad, P.W. 41, apart from the 1JCrsons who had died I.and whose bodies had been held to have been cremated by unidentified persons, if appears that 20 persons had received gun shot h1juries; one of them had as many as 14 lacerated wounds and ;mother had 10 lacerated wounds.· Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired. In the result the appeal fails and is dismissed. G.C. Appeal dismissed.