Case: Ram Prasad Sharma Vs. State Of Bihar

Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention.10. 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.11. 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 defense. 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 Session 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 Prosecution again filed a petition that this document be not taken in evidence. The learned Additional Session 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 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 Senapati v. Emperor, AIR 1945 Pat 489 and Brij Mohan Sinha v. Priya Brat Narain Sinha, 1968-3 SCR 861 = (AIR 1965 SC 282 ) held that the document was inadmissible in evidence.12. 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 1965-3 SCR 861 at p. 864 = (AIR 1965 SC 282 at p. 286)"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 be inadmissible.13. 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 Kaleshwars 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 along with 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 Choltan as being the person shot and killed by Ram Prasad because he had heard a hulla that Choltan had been murdered. It seems to us that the High Court came to a correct conclusion and was right in accepting the explanation of P. W.1.14. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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 Senapati v. Emperor, AIR 1945 Pat 489  and Brij Mohan Sinha v. Priya Brat Narain Sinha, 1968-3 SCR 861  = (AIR 1965 SC 282 ) held that the document was inadmissible in evidence.12. We agree with the conclusion arrived at by the Highthis 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 1965-3 SCR 861  at p. 864 = (AIR 1965 SC 282  at p. 286)"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 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 Kaleshwars 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 along with 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 Choltan as being the person shot and killed by Ram Prasad because he had heard a hulla that Choltan had been murdered. It seems to us that the High Court came to a correct conclusion and was right in accepting the explanation of P.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.