PETITIONER:
RAM PRASAD SHARMA
Vs.
RESPONDENT:
THE STATE OF BIHAR
DATE OF JUDGMENT:
30/07/1969
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1970 AIR 326 1970 SCR (1) 694
1969 SCC (2) 359
ACT:
Evidence Act, s. 35-- Conditions of admissibility
under--Entries must made by public official in the discharge
of his duties.
Evidence--Appreciation of--Name of murdered man wrongly
metioned in F.I.R.--Does not lead to conclusion that he was
not murdered when identity established by other evidence,
and mistake in F.I.R. satisfactorily explained.
HEADNOTE:
The appellant was tried for an offence under s. 302
I.P.C. as well as for other offences in connection with an
incident in which two persons were killed and several
injured. The allegation against the appellant was that he
caused the death of one K by shooting him with a gun in the
course of the alleged incident. The Additional Sessions
Judge who tried the case convicted the appellant for
offences under ss. 326/149. 324/34, 201 'and 148 I.P.C. but
acquitted him in respect of the murder of K. In so doing he
relied upon an attested copy filed by the defence which
purported to be the copy of an entry in the Chaukidar's hath
chitha according to which K died three days before the
alleged incident. He also relied on the fact that the name
of 'K was not mentioned as a victim in the First Information
Report of the incident. In appeal the High Court convicted
the appellant under s. 304 I.P.C. for causing the death of
K, holding that the alleged entry in the hath chitha had
been wrongly admitted in evidence by the trial judge and
that the deficiency in the F.I.R. was sufficiently
explained. Appeal against the High Court's judgment was
filed by special leave.
HELD: (i) The attested copy of the Chaukidar's hath
chitha was not admissible in evidence because the entry in
question was not proved to have been made by a public
servant in the discharge of his duties. [699 E]
Sanatan Senanati v. Emperor. A.I.R. 1945 Pat. 489 and
Brij Mohan Singh v. Priya Brat Natain Sinha. [1965] 3
S.C.R. 861, relied on.
(ii) K's death at the time and place alleged by the
prosecution was established by sufficient evidence and the
High Court was right in acCepting the explanation of the.
maker of the F.I.R. for the absence of K's name therein.
[699 F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
208 of 1966.
Appeal by special leave from the judgment and order
dated February 22, 1966 of the Patna High Court in Criminal
Appeal No. 530 of 1962 and Government Appeal No. 44 of 1962.
A. S.R. Chari, M.K. Ramamurthi, G. Ramamurthy and
Vineet Kumar, for the appellant.
B.P. Jha, for the respondent.
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The Judgment of the Court was ‘delivered by
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 the death of Qudrat Mian by shooting him down with
his gun whereas Ram Prasad Sharma 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 imprisonment.
The appellant, Ram Prasad Sharma was convicted under ss.
326/149, 324/ 34, 201 and 148,/.P.C. and sentenced to four
years rigorous imprisonment. 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
Judge.
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 and causing the
death of Kaleshwar and sentenced him to rigorous
imprisonment for seven years. The convictions of seven
others were altered from under ss. 326/149 to one under ss.
304/149 but the sentence of four years rigorous imprisonment
was maintained. In other respects the convictions were
maintained. The High Court, however, quashed the
convictions under s. 201, I.P.C.
The 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.
The 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 Danr at village Bindi about five miles away from.
Police Station Banka, a serious occurrence took place. The
Chaksafia Danr runs between 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 of
several villages, namely, Bhadrar, Nayadih, Uprama,
Basuara, Jitnagar, Majhiara, Banki, etc. are irrigated
from the water of this Danr and there are detailed entries
regard-
LI4Sup.C.I, 69–15
696
ing the respective rights of the different villages in
the Fard Abnashi which was prepared at the time of the last
survey. It appears that the villagers of different villages
who enjoy the above rights go in in a body every year during
the rainy season for ‘clearing tins Danr in order mat there
may not be any obstruction in the flow of water therein. On
the date of occurrence, i.e. August 15, 1960, a number of
persons of villages Bhadrar, Nayadih, Uprama, Basuara,
Jitnagar and Bhatkunki went along with spades to clear this
Danr in the .usual course and some of them had lathis also
with them. The total number of persons were estimated to
vary from about 150 to ‘about 400. When they reached the
brick kiln, which exists in Malmala Tikar they were
confronted by a mob of 40 to 50 persons including all the
convicted persons. Sheo Prasad Sharing 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 bhalas.
It may be mentioned that in the First Information Report
Dhanusdhari Mehta was alleged to have been armed with a
pistol but this allegation was subsequently given up.
Dhanusdhari Mehta was a retired inspector of police; his son
Ram Prasad Sharma 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 was some exchange of hot words and
brick-bats were thrown by both sides. Sheo Prasad Sharma
thereafter fired one shot towards the sky but the villagers
did not disperse. Then Dhanusdhari ordered his two sons Ram
Prasad Sharma and Sheo Prasad Sharma to open fire on the
villagers. On this both Ram Prasad Sharma and Sheo Prasad
Sharma opened fire with their guns on the villagers. One
shot fired by Sheo Prasad Sharma hit one Qudrat Mian and
he fell down and died on the spot. One other villager was
alleged to have been shot by Ram Prasad Sharma and he died
on the spot. A number of villagers sustained gun shot
injuries 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. Sobban Mandal, 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, who
had also sustained gun shot injuries.
The learned Additional Sessions Judge had rejected the
prosecution story that Kaleshwar Yadav was shot and killed
during the occurrence. He had come to the conclusion
that Kaleshwar Yudav had died prior to the date of
occurrence. The High Court has accepted the prosecution
version and it is this finding which is
697
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 Sessions
Judge had also 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
Yadav was shot down by the appellant Ram Prasad Sharma.
According to the entries in this document, Ext. D,
Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza
and in the remarks column of this register he is described
as “Bahanoi (brother-in-law) of 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 document
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 prosecution 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 bogus. The hearing of the argument thereafter 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.”
It is pointed out by the High Court that there is no further
reference to the document in the order sheet. After the
arguments concluded on July 7, 1962, the case was adjourned
for judgment. The judgment of the learned Additional
Sessions Judge shows that the original was subsequently
received by him with letter dated July 10, 1962, and he
observed that he was satisfied about
698
its genuineness. The High Court rightly pointed out that
the Additional Sessions Judge should have dealt with the
question of the admissibility of the document. The High
Court, following Sanatan Senanati v. Emperor(1) and Brij
Mohan Singh v. Priya Brat Narain Sinha(2), 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 in any public or other official
book, register or record, stating a fact in
issue or relevant 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 a relevant fact.”
In this case it has not 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 Sinha,(2), “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 or 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 shot 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 gone ‘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 house 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. 1, 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 hulla that Gholtan had
been murdered. It seems to us that the High Court came to a
correct
(1) A.I.R. 1945 Pat. 489. (2) [19651 3 S.C.R. 861 ,864.
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 Dwarka Nath Prasad, P.W. 41,
apart from the .persons who had died and whose bodies had
been held to’ have been cremated by unidentified persons, it
appears that 20 persons had received gun shot injuries; one
of them had as many as’ 14 lacerated wounds and another 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.
700