Sajjan Sharma Vs State
AFTAB ALAM, J.
appellant Sajjan Sharma stands convicted under section 302 of the Penal Code
and sentenced to rigorous imprisonment for life.
prosecution case that led to the conviction and sentence of the appellant is
based on the Fard-e-beyan (Ext. 3) of one Mukesh Kumar(PW4) recorded by the
officer-in-charge of Bihpur Police Station on November 24, 1994, at 4.00 p.m.
at David Door Bahiar of village Marba (in local dialect `bahiar' is the word
for the agricultural lands at a distance from the dwelling part of the
village). In his statement before the police officer, Mukesh Kumar stated that
on that day at about 10.00 a.m., he along with his uncles Narain Kunwar and
Bauku Kunwar had gone to the corn fields in David Door Bahiar carrying a
licensed .315 rifle and some rounds. There, they supervised the scattering of fertilizer
over the land by the farmla bourers. The work was over by 2.30 p.m. and then
the labourers left. In the meanwhile, one Gunanand Sharma/Sanghai, (PW3) s/o
Ram Avtar Sharma of Amarpur Village came there to meet Narain Kunwar. He (the
informant)and his uncle Bauku Kunwar were chatting, sitting at the other corner
of the field. At that time the accused, Bodhan Rai @ Prabhu Narain Rai s/o Basu
Rai came there carrying a rifle which is called a semi-rifle. He was wearing around
his neck a belt full of cartridges. Accompanying him were Satto Sharma s/o
Lalho Sharma who was carrying a .315 rifle, Shambhu Sharmas/o Satto Sharma
carrying a .315 rifle, Sukesh Kunwar s/o Naney Kunwar holding a `3 nought'
rifle, Paro Kunwar s/o Naney Kunwar holding a `3nought' rifle and three unknown
persons who were also carrying rifles. All the named accused were from the same
village as the informant.
the accused went up to his uncle, who on seeing them asked Gunanand to call the
informant and his other uncle Bauku. As Gunanand came towards them, Bodhan Rai
snatched the rifle from the hands of his uncle and pushed him towards south.
Watching this, the informant, Bauku Kunwar and Gunanand started shouting as to
where they were taking his uncle. Suddenly, Bodhan Rai fired a shot from his
rifle in the air and warned them to go back, whereupon they got frightened and
slowly fell back. Then, he took his uncle to the field of Laxmi Mishra that was
vacant. All the while they were shouting and raising alarm to save their uncle.
Then, Bodhan Rai, calling his uncle as "the bastard" exclaimed that
he should be killed there only, lest others would come on alarm. Uttering those
words, Bodhan Raifired a shot hitting his uncle in the abdomen. His uncle fell
down twisting onthe ground. Then, Bodhan Rai again said that they would torture
the bastard to death. On this, Shambhu Sharma and Sukesh Sharma also fired
shots at him. His uncle was writhing in pain when Bodhan Rai put the barrel of their
fle near the ears of his uncle and fired another shot and said to his fellow accused
that they should go as he was finished.
informant further said that they were watching from a little distance when
Bodhan Rai turned towards them and said that if they gave evidence, they would
also meet the same fate. The informant also said thathis uncle was killed due
to enmity from before, and earlier also Bodhan Raihad tried to kill his uncle.
The informant further said that after the accused persons had left, he went
near his uncle and saw that his uncle was lying dead with the face downward on
the ground. On the report of the gun shots and their shouting, several persons
from the vicinity gathered there. Bodhan Rai also carried away the licensed
rifle of his uncle. He did not remember the number of his rifle.
informant concluded by saying that his uncle was killed by Bodhan Rai @ Prabhu
Narain Rai s/o Basu Rai, Satto Sharma s/o Lalho Rai,Shambhu Sharma s/o Satto
Sharma, Sukesh Kunwar s/o Naney Kunwar,Paro Kunwar s/o Naney Kunwar, and other
unknown persons, colluding together, due to old enmity, who also snatched away
his licensed rifleno.AB0202.
finally said that what was recorded by the police officer was his statement; he
had read and understood it and finding it true put his signature in the
presence of witnesses. The Fard-e-beyan was signed besides the informant Mukesh
Kumar, by Bauku Kunwar and Gunanand Sanghai aswitnesses.
Fard-e-beyan was incorporated in the formal FIR (Ext. 5), instituted at 9.00
p.m. on the same date, giving rise to Bihpur P.S. caseno.224/94 dated November
24, 1994 under sections 302, 379, 34 of the Penal Code and under section 27 of
the Arms Act.
first thing that needs to be noted in connection with the Fard-e-beyan is that
the appellant Sajjan Sharma is not named there as one of the accused. The
Fard-e-beyan was recorded soon after the occurrence when there was hardly any
time for deliberation and for false implication of anyone who was actually not
among the accused. It gave the names of five accused, apart from the three
persons who were unknown. All the five named accused were from the same village
as the informant and his uncle Bauku Kunwar. Among the five accused the
Fard-e-beyan gave the names of Satto Sharma, the father of the appellant and
his brother Shambhu Sharma, the other son of Satto Sharma. More importantly,
Bauku Kunwar, who later named the appellant in his deposition before the court
was not only present at the time of recording of the Fard-e-beyan but had
actually signed it as one of two witnesses.
police after investigation submitted charge sheet against seven accused persons
of whom five were named in the Fard-e-beyan/FIR and two namely, Sajjan Sharma
(the appellant) and Mantu Chaudhri were not named in the Fard-e-beyan/FIR. In
the charge-sheet three accused namely, Sukesh Kumar, Paro Kunwar and Mantu
Chaudhri were shown as absconders and the rest were in custody. Later Paro
Kunwar was apprehended and he was also put on trial along with the accused who
were in custody. The AC JM, Naugachia separated the case of the two accused who
remained absconding by order dated August 16, 1996, and the other five accused
were put on trial. Later on Satto Sharma, the father of the appellant and the
accused Shambhu Sharma died and in so far as he was concerned, the proceedings
abated. The trial continued in respect of the four accused, including the
the basis of the evidences adduced before it, the trial court (First Additional
District and Sessions Judge, Naugachia) found and held that the prosecution was
able to fully establish the guilt of the accused and by judgment and order
dated August 2, 2001, convicted all the four accused under section 302 of the
Penal Code and section 27 of the Arms Act and sentenced them to rigorous
imprisonment for life under section 302 of the Penal Code and rigorous
imprisonment for 1 year under section 27 of the Arms Act. Bodhan Rai was also
convicted under section 379 of the Penal Code and sentenced to rigorous
imprisonment for 3 years. All the sentences of the accused were directed to run
Rai died after the judgment of the trial court. The rest of the three accused,
including the appellant preferred separate appeals before the Patna High Court
(being Criminal Appeal Nos. 391, 394 and 427 of 2001).All the three appeals
were consolidated and heard together and were dismissed by judgment and order
dated September 10, 2007. Against the judgment of the High Court, the two brothers
Shambhu Sharma and Sajjan Sharma (the present appellant) jointly filed the SLP.
(It is reported the third accused Paro Kunwar did not file any appeal against
the judgment of the High Court). The SLP insofar as Shambhu Sharma is concerned
was dismissed but the appellant was granted leave to appeal. That is how the appellant
alone stands in appeal before this Court from amongst the several accused who
were charge-sheeted and who later faced trial on the charge of killing Narain
adverting to the merits of the appellant's case, we need to take a look at the
charge framed against the accused. Curiously, the trial court charged all the
five accused (before Satto Sharma had died) only under section 302 of the Penal
Code, without the aid of either section 149 orsection 34 of the Penal Code.
Equally inexplicably, the trial court did not charge the accused under section
148 of the Penal Code. Apart from section302 of the Penal Code all the accused
were charged under section 27 of the Arms Act; accused Bodhan Rai was
additionally charged under section 379of the Penal Code for taking away the
rifle of the deceased.
advantage of the highly flawed charge framed by the trial court, Mr. Nagendra
Rai, Senior Advocate, appearing for the appellant submitted that the
appellant's conviction cannot be legally sustained under section 302 of the
Penal Code alone. Mr. Rai further submitted that both PWs 4 and 6, the two
prosecution witnesses who in their deposition before the court mentioned the
name of the appellant did not attribute to him any overt act at all but simply
named him among the accused. Hence, even if the prosecution evidence were to be
accepted without any question the appellant could not be held guilty of
committing murder without imputing to him a shared object or intention to
commit the offence with the other accused.
we may also take a look at the examination of the appellant by the court under
section 313 of the Code of Criminal Procedure. This examination too is highly
unsatisfactory and sketchy. The first question by the court to the appellant
(and for that matter to all the accused) was: "There is evidence against
you that on 24.11.94 at Davidor Bahiyar in concert with the other accused (you)
by firing shot at him."The appellant replied: "It is wrong (to say
that)"Whereupon the court put the second and the last question: "In
defence you wish to say anything?"The appellant replied: "I am
are constrained to say that this is not an isolated case but it is almost a
stereotype. It is our experience that in criminal trials in Bihar no proper
attention is paid to the framing of charges and the examination of the accused
under section 313 of the Code of Criminal Procedure, the two very
stages in a criminal trial. The framing of the charge and the examination of
the accused are mostly done in the most unmindful and mechanical manner. We
wish that the Patna High Court should take note of the neglectful way in which
some of the Courts in the State appear to be conducting trials of serious
offences and take appropriate corrective steps.
regard to the charge that was framed against the appellant and his examination
by the court under section 313 of the Code of Criminal Procedure the point raised
by Mr. Rai cannot be said to be entirely without substance but we see no reason
to go into that technical aspect of the matter since we find that the appellant
has a good case on merit as well.
prosecution examined eight witnesses in support of its case. PWs1 and 2 (Bihari
Mandal and Sadanand Kumar) stated that they did not know anything about the
occurrence and they had not given any statement before the police. They were
declared hostile. PW3 (Gunanand Sharma) who was the brother-in-law of the
deceased, Narain Kunwar and who was not only present at the time of recording
of the Fard-e-beyan but had also signed it as a witness along with Bauku Kunwar
also turned hostile and said that he did not know who killed Narain Kunwar. In
cross-examination he also said that his brother-in-law had enmity with a large
number of people. PW4, Mukesh Kumar, the informant and PW6, Bauku Kunwar are
the two eye witnesses.PW5, Binodanand Kumar did not claim to have witnessed the
actual occurrence but said that on the date of occurrence, at about 2:30 in the
afternoon he heard the report of the gun shots and saw some of the accused fleeing
away with .315 rifles. PW7 is the doctor who conducted post mortem on the body
of Narain Kunwar. PW8, Ranjit Kumar Mishra is the investigating officer of the
view of the evidences of PWs 4, 6 and 5 coupled with the medical evidence there
is no room for doubt that Narain Kunwar was killed in the manner as stated by
the prosecution. But the question is whether or not the appellant was one of
the accused taking part in the commission of theoffence.
Mukesh Kumar in his deposition before the court stated what he had said in the
Fard-e-beyan. He did not name the appellant as one of the accused. The name of
the appellant figures in the deposition of PW6, Bauku Kunwar. PW6 named the
appellant and Mantu Chaudhri (absconding) and Munna Sharma (not
charge-sheeted), in addition to the five accused named in the FIR. He did not
assign them any particular weapon but said that they were carrying different
arms and weapons. He then stated that all the accused surrounded Nara in but
beyond this he did not assign any role to the appellant. PW5, Binodanand Kumar
stated that on the date of the occurrence he was scattering fertilizer in his
banana field when all of a sudden on hearing the sound of firing and noise, he
looked around and saw the accused persons, including the appellant coming from
the Gohal. He saw a rifle in the hands of Shambhu Sharma and 2 rifles in the
hands of Bodhan Rai who passed him close by. The rest of the accused were
carrying some small and big `3 noughts'. In cross examination he stated that he
had told Mukesh(PW4) that he had seen the accused persons running away. But he
had not said the names of all the accused persons to Mukesh. He further stated
that the Inspector recorded his statement about 10-20 days after the occurrence.
is noted above that the appellant was not named in the FIR. The appellant lived
in the same village as the informant and PW6, Bauku Kunwar. The appellant's
father and brother were seen as members of the unlawful assembly and were duly named
in the Fard-e-beyan/FIR. The weapons being carried by them (.315 rifle) were
also identified and expressly mentioned in the Fard-e-beyan. In regard to
Shambhu Sharma, it was stated that after the first shot fired by Bodhan Rai, he
and Sukesh Sharma also fired at the victim. In those circumstances, had the
appellant been actually present at the place of occurrence, there is no reason
why his name along with his father and brother, should not have figured in the
FIR.In case the informant missed him, PW6 Bauku Sharma would have given his name
who was undeniably present at the time of recording of the Fard-e-beyan and who
had signed it as one of the witnesses.
in his deposition before the court made a statement suggesting that his
statement was recorded by the police on the date of the occurrence itself after
recording the statement of Mukesh but Mr. Nagendra Rai submitted that from the
records it appeared that his statement was taken by the police on the day
following the date of occurrence.
this country, even while correctly naming the accused in cases of serious
offences, it is endemic that some other innocent persons or even such of the
members of the family of the accused who might not be present at the time of
commission of offence are also roped in and falsely implicated. Satto Sharma,
named as accused no.5 in the FIR, had two sons- Shambhu Sharmaand Sajjan
Sharma, the present appellant. Satto Sharma himself and Sambhu Sharma were duly
named as the accused. Had the appellant been identified at the time of
commission of the offence, his name would have surely figured in the FIR. It
appears that though he was not identified as one of the accused at the time of
the commission of the offence, it was later realized that one of the sons of
Satto Sharma was left out and he too was later name damong the accused.
the reasons as discussed above, we are unable to accept the evidence of PW6
insofar as he names the appellant also as one of the members of the unlawful
leaves PW5 only who claims to have seen the appellant among the accused while
they were going away after the commission of the offence. But his statement was
admittedly recorded by the police after ten or twenty days of the occurrence
and till then he had not disclosed the name of the appellant as one of the
accused to Mukesh or to any one else. In the facts and circumstances as discussed
above, it becomes difficult even to accept the testimony of PW5, Binodanand
Kumar insofar as the appellant is concerned.
this state of evidence, it will not be wholly safe to maintain the conviction
of the appellant under section 302 of the Penal Code and applying the rule of
caution, he must be given the benefit of doubt. We, accordingly, allow the
appeal and set aside the conviction of the appellant and the sentence given to
him. The appellant is directed to be released forthwith unless he is wanted in
some other criminal case.
a copy of this order be placed before the Hon'ble Judge of the Patna High
Court, in-charge of the State's Judicial Academy.