Sah Vs. State of Bihar & Ors  INSC 579 (4 April 2008)
S.B. SINHA & P.P. NAOLEKAR
NON-REPORTABLE CRIMINAL APPEAL NO 604 OF 2008 [arising out of Special Leave
Petition (Crl.) No.480 of 2007] P.P. NAOLEKAR,J.
1. Leave granted.
2. On 12.12.2005, an FIR was registered at Turkaulia P.S., District East
Champaran, Bihar on the basis of a complaint lodged by the appellant Md. Azhar
Sah, alleging that on that date he along with other villagers were ploughing
the field at around 1.30 in the afternoon, which is the subject matter of
litigation. Soon thereafter, the Sharma brothers including Sudhanshu Kumar
Sharma came to the field holding guns in their hands. There were several other
persons who came along with the Sharma brothers who were also armed with guns,
country-made pistols and rifles. Soon after arriving at the spot, they used
filthy language on the complainant. Loknath Sharma and Binda Rai ordered their
men to shoot at the complainant party.
Following this, Subodh Sharma fired at Ujair Sah and as a result of the
injuries sustained he fell down. Further, Loknath Sharma fired at the
complainant and Sudhanshu Kumar Sharma, respondent No. 4, herein fired at Aseem
Sah. Other Sharma brothers fired at different persons. At the end of the fight,
the complainant saw the dead bodies of four persons of the complainant party
and Ujair Sah was lying badly injured. He was later on taken to the hospital
where he died.
Five people were brutally killed.
3. Sudhanshu Kumar Sharma moved a bail application before the High Court
which was granted by the High Court on the reasoning that although the other
accused persons have been refused bail the case of respondent No. 4 herein is
different than that of persons who have been refused bail.
4. As per the High Court, several persons from both sides had received
injuries. It appeared to the High Court, a case of free- fight wherein other
persons from the Sharmas received injuries whereas respondent No. 4 did not
sustain any injury. It is also the case of respondent No. 4 that he is a Bank
Manager posted at Gopalganj and was not present at the spot when the incident
Submission of the counsel for the respondent was in a way accepted on the
basis of the orders of the Court indicating the accused persons to be in
possession of the land at the relevant time and that the informant and his
other family members were aggressors. There is also the version of the
eye-witnesses that the attack was made on Aseem Sah (since deceased) by
different persons. On the cumulative assessment of these facts, the High Court
was of the view that the case was made out by respondent No. 4 for grant of
bail and he was accordingly granted bail by the High Court. Aggrieved by the
said order, the appellant-complainant is before this Court by way of this
appeal by special leave.
5. As per the version of respondent No. 4 from his counter affidavit, the
property (agricultural land) where the incident took place was purchased by the
Sharma family by registered sale deeds dated 7.8.1962, 6.8.1962, 4.10.1962 and
8.2.1963 whereby they were put in possession of the property and since then
they have continuously been enjoying the property in their possession. There
was a long-lasting litigation between the two groups regarding the possession
and ownership of the property where the incident took place. It was the
complainant and his family members who wanted to trespass over the property and
take forcible possession over it. That is how the incident occurred. Several
persons had assembled at the place of the incident and there was connective
cross-firing and attack, as a result of which several persons sustained
injuries from the side of Sharmas and Ajay Sharma, nephew of respondent No. 4,
was murdered and seven other persons received grievous injuries. In the statements
recorded by the police of the eye-witnesses, one Mohd. Seraz said that it was
Subodh Sharma who was assailant of Aseem Sah, whereas the witnesses Abdul Khair
and Abdul Wahab gave names of other accused persons, namely, Shri Ram Shrama
and Kashi Rai as the assailants.
6. From the facts alleged by the appellant as well as respondent No. 4, it
appears that several persons from both sides received injuries and several
persons are responsible for causing injuries to each other side. Under the
circumstances, if different persons have been alleged to have caused injuries
to the deceased Aseem Sah, then on the face of it, it cannot be said with
certainty at this stage that it was respondent No. 4 who caused injuries to the
deceased or was the only person who was responsible for causing injuries
resulting in death of Aseem Sah.
7. In overall view of the matter, we do not find any good or sufficient
reason to take a different view in the case. The appeal is, accordingly,