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 SR Chari MK Ramamurthi G Ramamurthy and Vineet Kumar for the appellant
BP 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 section 302 i
PC Sheo Prasad Sharma was charged under section 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 sections 304 32434 201 and 148 and sentenced him to seven years rigorous imprisonment
The appellant Ram Prasad Sharma was convicted under sections 326149 324 34 201 and 148PC 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 section 304 IPC 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 sections 326149 to one under sections 304149 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 section 201 IPC 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 130 or 2 pm 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
CI 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 ie 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 PW 5 Jagdeo Choudhary PW 8 and Kishori Prasad Singh PW 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 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 vs Emperor1 and Brij Mohan Singh vs Priya Brat Narain Sinha2 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 vs Priya Brat Narain Sinha2 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 exhibit 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 PWs 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 PW 17 that Kaleshwar had been killed
The High Court further accepted the explanation of PW 1 who had made the FIR 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 AIR 1945 Pat 489
2 19651 3 SCR 861 864
699 conclusion and was right in accepting the explanation of PW 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 PW 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
GC Appeal dismissed


Summary:
The appellant was tried for an offence under section 302 IPC 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 sections 326149
32434 201 and 148 IPC 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 section 304 IPC 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 FIR 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 vs Emperor
AIR 1945 Pat
489 and Brij Mohan Singh vs Priya Brat Natain Sinha
  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 FIR for the absence of K s name therein
699 F