REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1283 OF 2010

Sajjan Sharma             … Appellant

Versus

State of Bihar      … Respondent

J U D G M E N T

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

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

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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  

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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  

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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.

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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.  

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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.

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