{"id":156382,"date":"1969-07-30T00:00:00","date_gmt":"1969-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-prasad-sharma-vs-the-state-of-bihar-on-30-july-1969"},"modified":"2017-02-27T13:58:12","modified_gmt":"2017-02-27T08:28:12","slug":"ram-prasad-sharma-vs-the-state-of-bihar-on-30-july-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-prasad-sharma-vs-the-state-of-bihar-on-30-july-1969","title":{"rendered":"Ram Prasad Sharma vs The State Of Bihar on 30 July, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Prasad Sharma vs The State Of Bihar on 30 July, 1969<\/div>\n
Equivalent citations: 1970 AIR 326, \t\t 1970 SCR (1) 694<\/div>\n
Author: S Sikri<\/div>\n
Bench: Sikri, S.M.<\/div>\n
           PETITIONER:\nRAM PRASAD SHARMA\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR\n\nDATE OF JUDGMENT:\n30\/07\/1969\n\nBENCH:\nSIKRI, S.M.\nBENCH:\nSIKRI, S.M.\nMITTER, G.K.\nHEGDE, K.S.\n\nCITATION:\n 1970 AIR  326\t\t  1970 SCR  (1) 694\n 1969 SCC  (2) 359\n\n\nACT:\n    Evidence  Act,  s.\t35--  Conditions  of   admissibility\nunder--Entries must made by public official in the discharge\nof his duties.\n    Evidence--Appreciation of--Name of murdered man  wrongly\nmetioned in F.I.R.--Does not lead to conclusion that he\t was\nnot  murdered when identity established by  other  evidence,\nand mistake in F.I.R. satisfactorily explained.\n\n\n\nHEADNOTE:\n    The\t appellant  was tried for an offence  under  s.\t 302\nI.P.C.\tas well as for other offences in connection with  an\nincident  in  which  two persons  were\tkilled\tand  several\ninjured.   The allegation against the appellant was that  he\ncaused the death of one K by shooting him with a gun in\t the\ncourse\tof  the alleged incident.  The\tAdditional  Sessions\nJudge  who  tried  the\tcase  convicted\t the  appellant\t for\noffences under ss. 326\/149. 324\/34, 201 'and 148 I.P.C.\t but\nacquitted him in respect of the murder of K. In so doing  he\nrelied\tupon  an attested copy filed by\t the  defence  which\npurported to be the copy of an entry in the Chaukidar's hath\nchitha\taccording  to  which K died three  days\t before\t the\nalleged incident.  He also relied on the fact that the\tname\nof 'K was not mentioned as a victim in the First Information\nReport of the incident.\t In appeal the High Court  convicted\nthe  appellant under s. 304 I.P.C. for causing the death  of\nK,  holding  that the alleged entry in the hath\t chitha\t had\nbeen  wrongly  admitted in evidence by the trial  judge\t and\nthat   the  deficiency\tin  the\t F.I.R.\t  was\tsufficiently\nexplained.   Appeal  against the High Court's  judgment\t was\nfiled by special leave.\n    HELD:  (i)\tThe attested copy of  the  Chaukidar's\thath\nchitha\twas not admissible in evidence because the entry  in\nquestion  was  not  proved to have been\t made  by  a  public\nservant in the discharge of his duties. [699 E]\n    Sanatan  Senanati v. Emperor. A.I.R. 1945 Pat.  489\t and\nBrij  Mohan\tSingh v. Priya Brat Natain Sinha.<\/a>  [1965]  3\nS.C.R. 861, relied on.\n    (ii)  K's  death at the time and place  alleged  by\t the\nprosecution  was established by sufficient evidence and\t the\nHigh  Court was right in acCepting the explanation  of\tthe.\nmaker  of  the F.I.R. for the absence of K's  name  therein.\n[699 F]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL  APPELLATE JURISDICTION:  Criminal\t Appeal\t No.
\n208 of 1966.\n<\/p>\n
    Appeal  by\tspecial leave from the\tjudgment  and  order
\ndated February 22, 1966 of the Patna High Court in  Criminal
\nAppeal No. 530 of 1962 and Government Appeal No. 44 of 1962.\n<\/p>\n
     A.\t S.R.  Chari, M.K. Ramamurthi,\tG.  Ramamurthy\t and
\nVineet Kumar, for the appellant.\n<\/p>\n
     B.P. Jha, for the respondent.\n<\/p>\n
     695<\/span><\/p>\n
The Judgment of the Court was ‘delivered by
\nSikri,\tJ.Fourteen persons were tried by the learned  Second
\nAdditional  Sessions Judge, Bhagalpur, on  various  charges.
\nOut  of these 14 persons Sheo Prasad Sharma and\t Ram  Prasad
\nSharma\twere  charged  under s. 302,  i.P.C.   Sheo   Prasad
\nSharma\t was charged under s. 302 for  having  intentionally
\ncaused\tthe death of Qudrat Mian by shooting him  down\twith
\nhis  gun  whereas Ram Prasad Sharma was charged\t under\tthis
\nsection\t for  having shot down with his gun Kaleshwar  Yadav
\nand thus having caused the murder of this person.
\n    The\t  Second  Additional  Sessions\t Judge,\t  Bhagalpur,
\nconvicted Sheo Prasad Sharma under ss. 304, 324\/34,  201 and
\n148  and sentenced him to seven years rigorous imprisonment.
\nThe  appellant,\t Ram Prasad Sharma was convicted  under\t ss.
\n326\/149,  324\/ 34, 201 and 148,\/.P.C. and sentenced to\tfour
\nyears rigorous imprisonment.  Seven other accused were\talso
\nconvicted  but it is not necessary to mention  the  sections
\nunder which they were convicted. Five of the accused persons
\nwere  acquitted\t by the learned Second\tAdditional  Sessions
\nJudge.\n<\/p>\n
    Two appeals were filed before the High Court, one by the
\nState and the other by the nine convicted persons, including
\nRam Prasad Sharma. Both the appeals were heard together. The
\nHigh  Court accepted the appeal of the State as far  as\t Ram
\nPrasad Sharma was concerned and convicted him under s.\t304,
\nI.P.C.,\t in  connection with the shooting  and\tcausing\t the
\ndeath\tof   Kaleshwar\t and  sentenced\t him   to   rigorous
\nimprisonment  for  seven years.\t The  convictions  of  seven
\nothers were altered from under ss. 326\/149 to one under\t ss.
\n304\/149 but the sentence of four years rigorous imprisonment
\nwas  maintained.   In other respects  the  convictions\twere
\nmaintained.    The   High  Court,   however,   quashed\t the
\nconvictions under s. 201, I.P.C.\n<\/p>\n
    The\t nine convicted persons filed petition\tfor  special
\nleave  to appeal.  This Court by its order dated October  4,
\n1966  rejected\tthe petition except as\tregards\t Ram  Prasad
\nSharma and his appeal is now before us.\n<\/p>\n
    The prosecution case as accepted by the High Court\twas,
\nin brief, as follows. On August 15, 1960, at about 1.30 or 2
\np.m.,  by  the\tside  of a Danr\t (water\t channel)  known  as
\nChaksafia Danr at village Bindi about five miles away  from.
\nPolice Station Banka, a serious occurrence took place.\t The
\nChaksafia  Danr runs between village Bindi which is  to\t its
\neast  and Banki which is to its west and then  goes  further
\nnorth  to  village Bhadrar  and\t other villages..  Lands  of
\nseveral\t  villages,   namely,  Bhadrar,\t  Nayadih,   Uprama,
\nBasuara,  Jitnagar,  Majhiara,\tBanki, etc.   are  irrigated
\nfrom  the water of this Danr and there are detailed  entries
\nregard-\n<\/p>\n
LI4Sup.C.I, 69–15
\n696<\/span>
\ning  the  respective rights of the different   villages\t  in
\nthe Fard Abnashi which was prepared at the time of the\tlast
\nsurvey.\t It appears that the villagers of different villages
\nwho enjoy the above rights go in in a body every year during
\nthe rainy season for ‘clearing tins Danr in order mat  there
\nmay not be any obstruction in the flow of water therein.  On
\nthe  date of occurrence, i.e. August 15, 1960, a  number  of
\npersons\t of  villages Bhadrar,\tNayadih,   Uprama,  Basuara,
\nJitnagar and Bhatkunki went along with spades to clear\tthis
\nDanr  in the .usual course and some of them had lathis\talso
\nwith  them.  The total number of persons were  estimated  to
\nvary  from  about 150 to ‘about 400. When they\treached\t the
\nbrick  kiln,  which  exists  in\t Malmala  Tikar\t they\twere
\nconfronted  by a mob of 40 to 50 persons including  all\t the
\nconvicted  persons.   Sheo  Prasad Sharing  and\t Ram  Prasad
\nSharma were armed with guns and Patel Thakur was armed\twith
\na   pharsa  and the  remaining\taccused\t except\t Dhanusdhari
\nMehta were armed with bhalas.\n<\/p>\n
    It may be mentioned that in the First Information Report
\nDhanusdhari  Mehta  was alleged to have been  armed  with  a
\npistol\tbut  this  allegation  was  subsequently  given\t up.
\nDhanusdhari Mehta was a retired inspector of police; his son
\nRam  Prasad Sharma was a practising lawyer at  Bhagalpur  at
\nthe time of the occurrence in question.\n<\/p>\n
    On\tseeing this crowd of villagers, Sheo  Prasad  Sharma
\ndirected them to return and threatened to shoot them if they
\nfailed\tto do so. There was some exchange of hot  words\t and
\nbrick-bats  were thrown by both sides.\tSheo  Prasad  Sharma
\nthereafter fired one shot towards the sky but the  villagers
\ndid not disperse.  Then Dhanusdhari ordered his two sons Ram
\nPrasad\tSharma\tand Sheo Prasad Sharma to open fire  on\t the
\nvillagers.   On this both Ram Prasad Sharma and Sheo  Prasad
\nSharma\topened fire with their guns on the  villagers.\t One
\nshot fired by Sheo  Prasad  Sharma hit\tone Qudrat Mian\t and
\nhe  fell down and died on the spot.  One other villager\t was
\nalleged\t to have been shot by Ram Prasad Sharma and he\tdied
\non  the\t spot.\tA number of  villagers\tsustained  gun\tshot
\ninjuries and as a result of the firing by Sheo Prasad Sharma
\nand Ram Prasad Sharma, who are estimated to have fired about
\n12  rounds, the villagers dispersed. Sobban Mandal,  one  of
\nthe  injured persons went to the Police Station\t with  three
\nother  injured persons, namely, Chotan Rai, P.W.  5,  Jagdeo
\nChoudhary,   P.W. 8  and Kishori Prasad Singh, P.W. 12,\t who
\nhad also sustained gun shot injuries.\n<\/p>\n
    The\t learned Additional Sessions Judge had rejected\t the
\nprosecution  story that Kaleshwar Yadav was shot and  killed
\nduring\tthe  occurrence.  He had  come\tto  the\t  conclusion
\nthat  Kaleshwar\t Yudav\thad  died  prior  to  the  date\t  of
\noccurrence.   The  High Court has accepted  the\t prosecution
\nversion and it is this finding which is
\n697<\/span>
\nbeing  seriously challenged by the learned counsel  for\t Ram
\nPrasad Sharma, appellant.\n<\/p>\n
    The\t learned Additional Sessions Judge had rejected\t the
\nversion\t of the prosecution regarding the shooting  down  of
\nKaleshwar  Yadav  mainly  on  the basis\t of  entries  in  an
\nattested  copy\tof   the Chaukidar’s hath  chitha  (Ext.  D)
\naccording  to  which the death of Kaleshwar  took  place  in
\nGopalpur  mauza\t on August  12, 1960, that  is,\t three\tdays
\nprior  to  the occurrence. The learned\tAdditional  Sessions
\nJudge  had  also relied on the First Information  Report  in
\nwhich the name of Kaleshwar Yadav does not find mention.
\n    Two\t points\t arise before us, first,  whether  the\thath
\nchitha\tis admissible in evidence, and secondly, whether  on
\nthe evidence on record it is otherwise proved that Kaleshwar
\nYadav was  shot down by the appellant Ram Prasad Sharma.
\n    According  to  the\tentries in this\t document,  Ext.  D,
\nKaleshwar  Yadav died on August 12, 1960, in Gopalpur  Mauza
\nand in the remarks column of this register he  is  described
\nas  “Bahanoi (brother-in-law) of Asarfi Yadav.” We looked at
\nthe  attested copy produced in Court and we were  unable  to
\nascertain  the\tdate  on which the attested  copy  had\tbeen
\nobtained  by  the  defence.  The only  dates  this  document
\nbears are the date of attestation (October’ 15, 1960) by the
\nDistrict  Statistical Officer, the date September 22,  1960,
\nnext to the signature of one Shukdeo Chowdhary, and the date
\nof  admission  by the Additional Sessions  Judge  (June\t 25,
\n1962)..As rightly pointed out by the High Court the  learned
\nSessions   Judge   took\t this  copy  on\t   record   in\t  an
\nextraordinary  manner.\tThe prosecution evidence  closed  on
\nJune  21, 1962 and on June 25, 1962, this attested copy\t was
\nadmitted  in evidence without any proof. On the same day  an
\norder was passed calling for the original. On the very\tnext
\nday the public prosecutor filed a petition objecting to\t the
\nadmission  of this document and alleged, that  the  document
\nwas bogus. The hearing of the argument thereafter  proceeded
\non  July  4,  1962. The Public\tProsecutor   again  filed  a
\npetition  that this document be not taken in evidence.\t The
\nlearned Additional Sessions Judge disposed of this  petition
\nwith the following order:\n<\/p>\n
\t\t “Let  the  petition  be  placed  with\t the
\n\t      record.\tThe  original has  once\t again\tbeen
\n\t      called  for.  The matter will be discussed  in
\n\t      the judgment.”\n<\/p><\/blockquote>\n
It is pointed out by the High Court that there is no further
\nreference  to  the document in the order  sheet.  After\t the
\narguments concluded on July 7, 1962, the case was  adjourned
\nfor  judgment.\tThe  judgment  of  the\tlearned\t  Additional
\nSessions   Judge  shows that the original  was\tsubsequently
\nreceived  by  him  with letter dated July 10, 1962,  and  he
\nobserved that he was satisfied about
\n698<\/span>
\nits  genuineness.  The High Court rightly pointed  out\tthat
\nthe  Additional\t Sessions Judge should have dealt  with\t the
\nquestion  of  the admissibility of the\tdocument.  The\tHigh
\nCourt,\t following Sanatan Senanati v. Emperor(1)  and\tBrij
\nMohan  Singh  v. Priya Brat Narain Sinha<\/a>(2), held  that\t the
\ndocument was inadmissible in evidence.\n<\/p>\n
    We\tagree  with the conclusion arrived at  by  the\tHigh
\nCourt. Section 35 of the Evidence Act provides:\n<\/p>\n
\t\t  “An entry in any public or other  official
\n\t      book,  register or record, stating a  fact  in
\n\t      issue or\trelevant fact, and made by a  public
\n\t      servant in the discharge of his official duty,
\n\t      or  by  any other person in performance  of  a
\n\t      duty  specially  enjoined by the\tlaw  of\t the
\n\t      country in which such book, register or record
\n\t      is kept, is itself a relevant fact.”\n<\/p><\/blockquote>\n
In  this  case\tit has not been proved\tthat  the  entry  in
\nquestion  was made by a public servant in the  discharge  of
\nhis official duties. As observed by this Court in Brij Mohan
\nSingh  v.  Priya Brat Narain Sinha,<\/a>(2), “the reason  why  an
\nentry made by a public servant in a public or other official
\nbook,  register,  or  record stating a fact in\tissue  or  a
\nrelevant  fact has been made relevant is that when a  public
\nservant\t makes it’ himself in the discharge of his  official
\nduty,  the  probability\t of its being  truly  and  correctly
\nrecorded is high.” No proof has been led in this case as  to
\nwho  made  the entry and whether the entry was made  in\t the
\ndischarge  of any official duty. In the result we must\thold
\nthat  Ex. D. the hath chitha, was rightly held by  the\tHigh
\nCourt to be inadmissible.\n<\/p>\n
    The High Court then dealt with the other evidence on the
\nrecord\tand  came  to  the  conclusion\tthat  Kaleshwar\t was
\nactually shot down by the appellant, Ram Prasad Sharma.\t The
\nlearned counsel for the appellant has tried to assail  these
\nfindings  but he has not been able to show in what  way\t the
\nHigh Court has gone ‘wrong in coming to the conclusion.\t The
\nHigh  Court states that ten witnesses have  named  Kaleshwar
\nbeing  the second person who was shot. Further,\t Kaleshwar’s
\nson  and widow, P.Ws 24 and 34, Chamak Lal Yadav  and  Karma
\nDevi,  deposed that on the day of occurrence  Kaleshwar\t had
\nleft  his house with a kudal and had gone to Chaksafia\tDanr
\nalongwith others.  They further deposed that on the next day
\nthey  learnt from Nandai Lal Singh, P.W. 17, that  Kaleshwar
\nhad. been killed. The High Court further accepted
\n    the explanation of P.W. 1, who had made the F.I.R., that
\nhe had named Gholtan as being the person shot and killed  by
\nRam’  Prasad because he had heard a hulla that\tGholtan\t had
\nbeen murdered. It seems to us that the High Court came to  a
\ncorrect
\n(1) A.I.R. 1945 Pat. 489.  (2) [19651 3 S.C.R. 861 ,864.\n<\/p>\n
699<\/span><\/p>\n
conclusion  and\t was right in accepting the  explanation  of
\nP.W. 1.\n<\/p>\n
    The\t learned  counsel  further  contends  that  it\t was
\ndoubtful that 12 rounds would have been fired. He points out
\nthe number of injuries received by the villagers. But  these
\ninjuries support the prosecution story. From the injuries on
\nthe various persons examined by Dwarka Nath Prasad, P.W. 41,
\napart  from the .persons who had died and whose\t bodies\t had
\nbeen held to’ have been cremated by unidentified persons, it
\nappears that 20 persons had received gun shot injuries;\t one
\nof them had as many  as’ 14 lacerated wounds and another had
\n10  lacerated wounds. Apart from that there is no reason  to
\ndoubt the oral evidence given in this case that a number  of
\nrounds were fired.\n<\/p>\n
In the result the appeal fails and is dismissed.\n<\/p>\n
G.C.\t\t\t\t\t Appeal dismissed.\n700<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Prasad Sharma vs The State Of Bihar on 30 July, 1969 Equivalent citations: 1970 AIR 326, 1970 SCR (1) 694 Author: S Sikri Bench: Sikri, S.M. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-156382","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Prasad Sharma vs The State Of Bihar on 30 July, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-prasad-sharma-vs-the-state-of-bihar-on-30-july-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Prasad Sharma vs The State Of Bihar on 30 July, 1969 - 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