Ram Prasad Sharma Vs. The State of
Bihar  INSC 160 (30 July 1969)
30/07/1969 SIKRI, S.M.
CITATION: 1970 AIR 326 1970 SCR (1) 694 1969
SCC (2) 359
Evidence Act, s. 35-- Conditions of
admissibility under--Entries must made by public official in the discharge of
Evidence--Appreciation of--Name of murdered
man wrongly motioned 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.
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.  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
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.
695 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
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,
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
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 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
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 gunshot 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 gunshot 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
"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
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 gunshot 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
G.C. Appeal dismissed.