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CASE NO.: Appeal (crl.)  604 of 2008

PETITIONER: Azhar Sah

RESPONDENT: State of Bihar & Ors

DATE OF JUDGMENT: 04/04/2008

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T 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 occurred.   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

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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, dismissed.