Sajjan Sharma vs State Of Bihar

2. The 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 2 David Door Bahiar carrying a licensed .315 rifle and some rounds. There, they supervised the scattering of fertilizer over the land by the farm labourers. 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 Sharma s/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 `3 nought' rifle and three unknown persons who were also carrying rifles. All the named accused were from the same village as the informant.

3. All 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 3 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 Rai fired a shot hitting his uncle in the abdomen. His uncle fell down twisting on the 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 the rifle near the ears of his uncle and fired another shot and said to his fellow accused that they should go as he was finished.

4. The 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 that his uncle was killed due to enmity from before, and earlier also Bodhan Rai had 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 4 Rai also carried away the licensed rifle of his uncle. He did not remember the number of his rifle.

9. The police after investigation submitted chargesheet 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 ACJM, 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 6 Sharma died and in so far as he was concerned, the proceedings abated. The trial continued in respect of the four accused, including the appellant.

10. On 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 concurrently.

11. Bodhan 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 7 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 Kunwar.

15. We 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 9 important 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.

18. In 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 the offence.

25. In 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. 14