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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.

CITATION:  1970 AIR  326            1970 SCR  (1) 694  1969 SCC  (2) 359

ACT:     Evidence  Act,  s.  35--  Conditions  of   admissibility under--Entries must made by public official in the discharge of his duties.     Evidence--Appreciation of--Name of murdered man  wrongly metioned 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. satisfactorily explained.

HEADNOTE:     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.  [1965]  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

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High  Court was right in acCepting the explanation  of  the. maker  of  the F.I.R. for the absence of K’s  name  therein. [699 F]

JUDGMENT:     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  ss. 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, I.P.C.     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 us.     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-

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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 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 with bhalas.     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  gun  shot 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 gun shot 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

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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 following order:                  "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

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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 be inadmissible.     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 gun shot 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 dismissed. G.C.                                     Appeal dismissed. 700