ABSENCE OF IDENTIFICATION - NO CONVICTION

                                              REPORTABLE
                  IN THE SUPREME COURT OF INDIA
                 CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.1283 OF 2010



Sajjan Sharma                                                  ... Appellant

                                    Versus

State of Bihar                                                 ... Respondent



                              JUDGMENT

AFTAB ALAM, J.


1.    The appellant Sajjan Sharma stands convicted under section 302 of

the Penal Code and sentenced to rigorous imprisonment for life.

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.

5.    The informant concluded by saying that his uncle was killed by

Bodhan Rai @ Prabhu Narain Rai s/o Basu Rai, Satto Sharma s/o Lalho Rai,

Shambhu Sharma s/o Satto Sharma, Sukesh Kunwar s/o Naney Kunwar,

Paro Kunwar s/o Naney Kunwar, and other unknown persons, colluding

together, due to old enmity, who also snatched away his licensed rifle

no.AB0202.

6.    He finally said that what was recorded by the police officer was his

statement; he had read and understood it and finding it true put his signature

in the presence of witnesses. The Fard-e-beyan was signed besides the

informant Mukesh Kumar, by Bauku Kunwar and Gunanand Sanghai as

witnesses.

7.    The Fard-e-beyan was incorporated in the formal FIR (Ext. 5),

instituted at 9.00 p.m. on the same date, giving rise to Bihpur P.S. case

no.224/94 dated November 24, 1994 under sections 302, 379, 34 of the

Penal Code and under section 27 of the Arms Act.

8.    The first thing that needs to be noted in connection with the Fard-e-

beyan is that the appellant Sajjan Sharma is not named there as one of the

accused. The Fard-e-beyan was recorded soon after the occurrence when
                                     5


there was hardly any time for deliberation and for false implication of

anyone who was actually not among the accused. It gave the names of five

accused, apart from the three persons who were unknown. All the five

named accused were from the same village as the informant and his uncle

Bauku Kunwar. Among the five accused the Fard-e-beyan gave the names of

Satto Sharma, the father of the appellant and his brother Shambhu Sharma,

the other son of Satto Sharma. More importantly, Bauku Kunwar, who later

named the appellant in his deposition before the court was not only present

at the time of recording of the Fard-e-beyan but had actually signed it as one

of two witnesses.

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.

12.   Before adverting to the merits of the appellant's case, we need to take

a look at the charge framed against the accused. Curiously, the trial court

charged all the five accused (before Satto Sharma had died) only under

section 302 of the Penal Code, without the aid of either section 149 or

section 34 of the Penal Code. Equally inexplicably, the trial court did not

charge the accused under section 148 of the Penal Code. Apart from section

302 of the Penal Code all the accused were charged under section 27 of the

Arms Act; accused Bodhan Rai was additionally charged under section 379

of the Penal Code for taking away the rifle of the deceased.

13.   Taking advantage of the highly flawed charge framed by the trial

court, Mr. Nagendra Rai, Senior Advocate, appearing for the appellant

submitted that the appellant's conviction cannot be legally sustained under

section 302 of the Penal Code alone. Mr. Rai further submitted that both

PWs 4 and 6, the two prosecution witnesses who in their deposition before

the court mentioned the name of the appellant did not attribute to him any
                                      8


overt act at all but simply named him among the accused. Hence, even if the

prosecution evidence were to be accepted without any question the appellant

could not be held guilty of committing murder without imputing to him a

shared object or intention to commit the offence with the other accused.

14.   Here we may also take a look at the examination of the appellant by

the court under section 313 of the Code of Criminal Procedure. This

examination too is highly unsatisfactory and sketchy. The first question by

the court to the appellant (and for that matter to all the accused) was:

      "There is evidence against you that on 24.11.94 at Davidor
      Bahiyar in concert with the other accused (you) killed Narain
      Kunwar by firing shot at him."

The appellant replied:

      "It is wrong (to say that)"

Whereupon the court put the second and the last question:

      "In defence you wish to say anything?"

The appellant replied:

      "I am innocent."

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.

16.   Having regard to the charge that was framed against the appellant and

his examination by the court under section 313 of the Code of Criminal

Procedure the point raised by Mr. Rai cannot be said to be entirely without

substance but we see no reason to go into that technical aspect of the matter

since we find that the appellant has a good case on merit as well.

17.   The prosecution examined eight witnesses in support of its case. PWs

1 and 2 (Bihari Mandal and Sadanand Kumar) stated that they did not know

anything about the occurrence and they had not given any statement before

the police. They were declared hostile. PW3 (Gunanand Sharma) who was

the brother-in-law of the deceased, Narain Kunwar and who was not only

present at the time of recording of the Fard-e-beyan but had also signed it as

a witness along with Bauku Kunwar also turned hostile and said that he did

not know who killed Narain Kunwar. In cross-examination he also said that

his brother-in-law had enmity with a large number of people. PW4, Mukesh

Kumar, the informant and PW6, Bauku Kunwar are the two eye witnesses.
                                    10


PW5, Binodanand Kumar did not claim to have witnessed the actual

occurrence but said that on the date of occurrence, at about 2:30 in the

afternoon he heard the report of the gun shots and saw some of the accused

fleeing away with .315 rifles. PW7 is the doctor who conducted post mortem

on the body of Narain Kunwar. PW8, Ranjit Kumar Mishra is the

investigating officer of the case.

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.

19.   PW4, Mukesh Kumar in his deposition before the court stated what he

had said in the Fard-e-beyan. He did not name the appellant as one of the

accused. The name of the appellant figures in the deposition of PW6, Bauku

Kunwar. PW6 named the appellant and Mantu Chaudhri (absconding) and

Munna Sharma (not charge-sheeted), in addition to the five accused named

in the FIR. He did not assign them any particular weapon but said that they

were carrying different arms and weapons. He then stated that all the

accused surrounded Narain but beyond this he did not assign any role to the

appellant. PW5, Binodanand Kumar stated that on the date of the occurrence
                                    11


he was scattering fertilizer in his banana field when all of a sudden on

hearing the sound of firing and noise, he looked around and saw the accused

persons, including the appellant coming from the Gohal. He saw a rifle in

the hands of Shambhu Sharma and 2 rifles in the hands of Bodhan Rai who

passed him close by. The rest of the accused were carrying some small and

big `3 noughts'. In cross examination he stated that he had told Mukesh

(PW4) that he had seen the accused persons running away. But he had not

said the names of all the accused persons to Mukesh. He further stated that

the Inspector recorded his statement about 10-20 days after the occurrence.

20.   It is noted above that the appellant was not named in the FIR. The

appellant lived in the same village as the informant and PW6, Bauku

Kunwar. The appellant's father and brother were seen as members of the

unlawful assembly and were duly named in the Fard-e-beyan/FIR. The

weapons being carried by them (.315 rifle) were also identified and

expressly mentioned in the Fard-e-beyan. In regard to Shambhu Sharma, it

was stated that after the first shot fired by Bodhan Rai, he and Sukesh

Sharma also fired at the victim. In those circumstances, had the appellant

been actually present at the place of occurrence, there is no reason why his

name along with his father and brother, should not have figured in the FIR.

In case the informant missed him, PW6 Bauku Sharma would have given his
                                    12


name who was undeniably present at the time of recording of the Fard-e-

beyan and who had signed it as one of the witnesses.

21.   PW6 in his deposition before the court made a statement suggesting

that his statement was recorded by the police on the date of the occurrence

itself after recording the statement of Mukesh but Mr. Nagendra Rai

submitted that from the records it appeared that his statement was taken by

the police on the day following the date of occurrence.

22.   In this country, even while correctly naming the accused in cases of

serious offences, it is endemic that some other innocent persons or even such

of the members of the family of the accused who might not be present at the

time of commission of offence are also roped in and falsely implicated. Satto

Sharma, named as accused no.5 in the FIR, had two sons- Shambhu Sharma

and Sajjan Sharma, the present appellant. Satto Sharma himself and Sambhu

Sharma were duly named as the accused. Had the appellant been identified

at the time of commission of the offence, his name would have surely

figured in the FIR. It appears that though he was not identified as one of the

accused at the time of the commission of the offence, it was later realized

that one of the sons of Satto Sharma was left out and he too was later named

among the accused.
                                    13


23.   For the reasons as discussed above, we are unable to accept the

evidence of PW6 insofar as he names the appellant also as one of the

members of the unlawful assembly.



24.   This leaves PW5 only who claims to have seen the appellant among

the accused while they were going away after the commission of the offence.

But his statement was admittedly recorded by the police after ten or twenty

days of the occurrence and till then he had not disclosed the name of the

appellant as one of the accused to Mukesh or to any one else. In the facts and

circumstances as discussed above, it becomes difficult even to accept the

testimony of PW5, Binodanand Kumar insofar as the appellant is concerned.



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




26.   Let a copy of this order be placed before the Hon'ble Judge of the

Patna High Court, in-charge of the State's Judicial Academy.




                                                ....................................J.
                                              (AFTAB ALAM)



                                                 ....................................J.
                                               (R.M. LODHA)


New Delhi
January 7, 2011.