Supreme Court of India
SAJJAN SHARMAversusSTATE OF BIHAR
- Citation
- 2011 INSC 24
- Decided
- 7 January 2011
- Disposal
- Appeal(s) allowed
- Bench
- AFTAB ALAM
Holding
The conviction of the appellant under Section 302 IPC is set aside due to insufficient evidence and the benefit of doubt.
Summary
The appellant, Sajjan Sharma, was convicted under Section 302 IPC for the murder of Narain Kunwar in an alleged unlawful assembly that fired weapons. The FIR and the original Fard‑e‑beyan named five accused, including the appellant's father and brother, but did not name the appellant himself. He was later added in the charge‑sheet, but the prosecution’s evidence—primarily the testimonies of PW4, PW6 and PW5—failed to positively identify him as taking part in the shooting. The trial court’s charge was also flawed, being framed only under Section 302 without invoking Sections 149, 148 or 34 of the IPC, and the appellant’s examination under Section 313 CrPC was deemed unsatisfactory. Applying the rule of caution and the benefit of doubt, the Supreme Court held that the evidence was insufficient to sustain the conviction and set it aside, ordering the appellant’s release.
Issues considered
- Whether the appellant was a participant in the unlawful assembly and thus liable under Section 302 IPC.
- Whether the conviction can be sustained when the appellant was not named in the FIR and identification evidence is weak.
- Whether framing the charge solely under Section 302 IPC without Sections 149, 148 or 34 is legally valid.
- Whether the examination of the accused under Section 313 CrPC was adequate.
- Application of the rule of caution/benefit of doubt in criminal convictions.
Legislation cited
- Arms Act, 1959s. 27
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 34, s. 379
Subjects
murderunlawful assemblybenefit of doubtframing of chargessection 313 examinationconviction set asiderule of cautioncriminal trial
Judgment
[2011) 1 S.C.R. 629
SAJJAN SHARMA A
v.
STATE OF BIHAR
.(Criminal Appeal No. 1283 of 2010)
JANUARY 7, 2011
B
[AFTAB ALAM AND R.M. LODHA, JJ.]
Penal Code, 1860- s.302- Murder- Unlawful assembly
carrying fire-arms caused the death of informant's uncle -
Appellant's father and brother were seen as members of the C
unlawful assembly and were duly named in the Fard-e-beyanl
FIR - Weapons carried by them were also identified and
expressly mentioned in the Fard-e-beyan - Thol/Jgh appellant
was not identified as one of the accused at the time ·of the
commission of the offence, he was later named, among the o
accused - Conviction of accused-appellant - Challenge to -
Dispute as to whether appellant was one of the accused taking
part in the commission of the offence - Held: The informant
did not name the appellant as one of the accused - The
appellant was not named in the FIR - Had the appellant been E
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 the circumstances, it will not be
wholly safe to maintain the conviction of the appellant under
s.302 IPC and applying the rule of_caution, he must.be given F
the benefit of doubt - Conviction of appellant set aside. ..
Criminal Trial - Framing of charges and examination of
accused under s.313 CrPC in the State of Bihar- Patna High
Court asked to take note of the neglectful way in which some
of the Courts in the State appear to be conducting trials of G
serious offences and take appropriate corrective steps - Code
of Criminal Procedure, 1973 - s.313.
According to the prosecution, In view of old enmity,
an unlawful assembly carrying fire-arms caused the H
629
630 SUPREME COURT REPORTS [2011] 1 S.C.R.
A death of PW4's uncle. The prosecution case Is based on
the Fard-e-beyan of PW4.·
The police subml1tted chargesheet against seven
accused persons of whom five (Including the appellant's
father and brother) were named In the Fard-e-beyan/FIR
B
whlle the other two accused (Including the appellant)
were not so named In the Fard·e·beyan/FIR. In the
charge-sheet three accused were shown as absconders ·~
and the rest were in custody. Later one more accused
was apprehended and he was also put on trial along with
·c the accused who were In custody. The case of the two
accused . who remained absconding was separated and
. the other five accused were put on trlal. Later on, the
. appellant's father died and in so far as he was concerned,
the proceedings abated. The trlal continued In respect of
D the four accused, including the appellant. The trial court y
finally convicted all the four accused under section 302
IPC and section 27 of the Arms Act and sentenced them ·
to rigorous imprisonment for life under section 302 IPC
and rigorous imprisonment for 1 year under section 27
E of the 'Arms Act. One accused died after the judgment of
the t.rlal court. The rest three accused, Including the
appeftant and his brother preferred appeals before the
High Court. The appeals were dismissed.
Against the judgment of the High Court, the appellant
F and his brother jointly filed SLP before this Court. Tl1e
third convict did not flle any further appeal against t~e
judgment of the High Court. The SLP Insofar as the
appellant's brother was dismissed while the appellant was
granted leave to appeal. · {
G )'-'
Allowing. the appea1, the Court
liELD: 1. Curiously, the trlaJ court ~harged all the five
.accused (before the appellant's father died) only under
aect,lon 302 IPC, without the aid of either section 149 or
..... .aectl~n ~4 of IPC. Equa,lly Inexplicably, the trial court did
H
· SAJJAN SHARMA v. STATE OF BIHAR 631
not charge the accused under section 148 IPC. Apart from A
-,! --"" section 302 IPC all the accused were charged under
section 27 of the Arms Act; one accused was addltlonally
charged under section 379 of the Penal Code for taking
away the rlfle of the deceased. [Para 12] [638-F-G]
B
2.1. The charge framed by the· trial court was. hlghly
flawed. The appellant was examined by the court under
section 313 of CrPC. This examination too Is highly
-~
unsatisfactory and sketchy. [Paras 13, 14] [638-H; 639-C-
D]
c
2.2. This is not an Isolated case but it is almost a
stereotype. 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 important stages in a criminal D
trial. The framing of the charge and the examination of the
accused are mostly done in the most unmindfu1 and
mechanical manner. 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
E
offences and take appropriate corrective steps. [Para 15]
[63.9-G-H; 640-A·B]
3.1. ·In any event, In the Instant case, there is no
reason to go Into that technical aspect of the matter since
the appellant has a good case on merit as well. [Para 16] F
[640-C]
3.2. The prosecution· examined eight witnesses in
·· support of Its case. PWs 1 and 2 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 who was the brother-In-law of the deceased
and who was not only present at t.he time of recording
G
of the Fard-e-beyan but had also signed It as a witness
also turned hostile. In cross-examination he also said that
H
632 ·SUPREME COURT REPORTS [2011) 1 S.C.R.
A his brother-In-law had enmity with a large number. of
people. PW4 and PW6 are the two eye witnesses. PW5 )._ ~
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
B some of the accused fleeing away with .315 rifles; In v!ew
of the evidences of PWs 4, 6 and 5 coupled with the
medical evidence there is no room for doubt that the
deceased was killed in the manner as stated by the +
prosecution. But the question is whether or not ..the
c appellant was one of the accused taking part in the
commission of the offence. [Paras 17, 18] [640-D-H; 641·
A]
3.3. PW4 In his deposition before the court stated
what he had. said In the Fard-e-beyan. He did not name
D the appellant as one of the accused. The name of the
appellant figures In the deposition of PW6. PW6 named
the appellant and two other accused (one absconding
and one not charge-sheeted), In addition to the five
accused named In the FIR. He did not assign them any
E particular weapc:>n but said that they were carrying
different arms and weapons. He then stated that all the
accused surrounded the deceased but beyond this he
did not assign any role to the appellant. PW5 stated that,
on the date of the o<:currence he was scattering fertlllzer\
F In his banana fleld 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. He
saw a rifle In the hands of the appellant's brother and 2
rifles In the hands of one accused who passed him close
G by. The rest of the accused were carrying some small )>--
...
anct big '3 noughts'. In cross examl.natlon he stated that.
he had told PW4 that he had seen the accused persons
running away. eu·t he had not said the names of all the
accused persons to PW4. He further stated that the
Inspector recorded his statement about 10-20 days after
H
SAJJAN SHARMA v. STATE OF BIHAR 633
the occurrence. [Para 19] (641-B-E] A
_,.,
3.4. The appellant was not named in the FIR. The
appellant lived in the same village as the informant and
PW6. 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 8
them (.315 rifle) were also identified and expressly
mentioned in the Fard-e-beyan. In the 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. c
In case the Informant missed him, PW6 would have given
his 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. [Para 20] [641-F-H; 642-A]
0
~ 3.5. In this country, even while correctly naming the
, accused In cases of serious offences, It Is endemic that
some other lnnocer:it 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
E
roped In and falsely Implicated. Had the appellant been
Identified at the time of commission of the offence, his
-:,-· name would have surely figured In the FIR. Though he
was not Identified as one of the accuseCI at the time of·
the commission of the offence, he was later named
among the accused. It Is difficult to accept the evidence F
of PW6 Insofar as he names the appellant also as one of
the members of the unlawful assembly. [Paras 22, 23]
[642-D-G]
·--(
3.6. This leaves PW5 only who claims to have seen G
the appeilant 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 tlll then he had not
disclosed the name of the appellant as one of the accused 'H.
634 SUPREME COURT REPORTS [2011) 1 $.C.R.
A to PW4 or to any one else. In the facts and circumstances,
It becomes dlfflcult even to accept the testimony oJ PW6 ~
Insofar as the appellant Is concerned. [Para 24] [ 42·.G·
H; 643·A]
3. 7. In view of the evidence In the l.nstant case, It wlll
B not be who'lly safe to maintain the conviction Of the
appellant under section 302 of IPC and applying the rule
of caution, he must be given the benefit of doubt. The
conviction of the appellant and the sentence given to him
Is set aside. [Para 25] [643·B·C]
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1283 of 2010.
From th.e Judgment & Order dated 10.9.2007 of the High
Court of Judicature at Patna in Criminal Appeal Nos. 427 and
D 394 of 2001 (DB}.
Nagendra Rai, Smarhar Singh, Preeti Reshmi and Alok
Kumar for the Appellant. .
Gopal Singh for the Respondent.
E
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. The app~llant Sajjan Sharma stands-
convicted under section 302 of the Penal Code and sentenced
to rigorous imprisonment for life.
F
2. The prosecution case that led to the ~onviction 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
G p.m. at David Door Bahiar of village Marba (in local dialect
'bahiar' Is the word for the agricultural la.nds 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 Bahlar.
H
SAJJAN SHARMA v~ STATE OF BIHAR 635
[AFTAB ALAM, J.]
carrying a licensed .315 rifle and some rounds. There, they A
.~
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/
Sangha!, (PW3) s/o Ram Avtar Sharma of Amarpur Village
came there to meet Narain Kunwa.r. He (the Informant) and his 8
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 c
Sharma who was carrying a .315 rifle, Shambhu ~harma 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
D
T 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 E
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 them to go back, whereupon they got frightened
and slowly fell back. Then, he took his uncle to the field of Laxmi F
Mishra that was vacant. All the .while they were shouting and ·
raising alarm to save their tincle. Then, Bodhan Ral, calling his
uncle as "the bastard" exclaimed that he should be killed there
· only, lest others would come on alarm. Uttering those words,
.-<I'. Bodhan Rai fired a shot hitting his uncle in the abdomen. His G
uncle fell down twisting on the ground. Then, Bodhan Ral 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 H
'
636 SUPREME COURT REPORTS (2011) 1 S.C.R.
A 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.
8
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
C the gun shots and their shouting, several persons from the
vicinity gathered there. Bodhan Rai also carried away the
licensed rifle of his uncle. He did not remember the number of
his rifle.
D 5. The informant concluded by saying that his uncle was
killed by Bodhan Rai @ Prabhu Narain Rai s/o Basu Rai, Satto T
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
E 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.
F The Fard-e-beyan was signed Qesides the informant Mukesh
Kumar, by Bauku Kunwar and Gunanand Sanghal as
witnesses.
7. The Fard-e-beyan was incorporated in .the formal FIR -
G (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
H
SAJJAN SHARMA v. STATE OF BIHAR 637
[AFTAB ALAM, J.]
the Fard-e-beyan is that the appellant Sajjan Sharma is not A
named there as one of the accused. The Fard-e-beyan was
-< recorde·· soon after the occurrence when there was hardly any
time for deliberation and for false implication of anyone who
was actually not arnong the accused. It gave the names of five
accused, apart from the three persons who were unknown. All B
the five named accused were from the same village~as the
informant and his uncle Bauku Kunwar. Among the five a~cused
the Fard-e-beyan gave the n~mes of Satto Sharma, the father
4- of the appellant and his brother Shambhu Sharma, the other
son of Satto Sharma. More importantly, Bauku Kunwar, who c
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 chargesh~et
against seven accused persons of whom five were named in D
y 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 E
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 F
·'the appellant and the accused Shambhu 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.
G
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
H
I '
638 SUPREME COURT -REPORTS [2011) 1 S.C.R.
A 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
e to rigoro1.1s 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
C 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.
D (It is reported the third accused Paro Kunwar did not file any
appeal against the judgment of the 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
E 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
F 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. ·
G Apart from section 302 of the Penal Code all the accused were
charged under section 27 of the Arms Act; accused Bo~han
Rai was additionally charged under section 379 of the Peru~I
Code for taking away the rifle of the deceased.
13. Taking advantage of the highly flawed charge framed
H by the trial court, Mr. Nagendra Rai, Senior Advocate,
•,' ',
'SAJJAN SHAijMA v. STATE OF BIHAR 639
[AFTAB ALAM, J.]
appearing for the appellant submitted that the appellant's A
--<'
conviction cannot be legally sustained under section 302 of the
Penal Code alone. Mr. Ral 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 overt act at all but simply named him among B
the accuseCl."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
--t· shared object or intention to commit the offence with.the other
accused. c
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: D'
"" "There Is evidence against you that on 24.11.94 at Davidor
Bahlyar In concert with the other accused (you) kllled
, Narain Kunwar by firing shot at him."
E
.
The appellant replied:
"It Is wrong (to say that)"
.....,..
Whereupon the court put the second and the last question:
F
"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 G
case but it is almost a stereotype. It Is our experience that in
criminal trials 1n 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 important
H
640 SUPREME COURT REPORTS [2011) 1 S.C.R.
A 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 qf the neglectful way in which some of
the Courts in the State appear to be conducting trials of serious
B 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 ~aised by Mr. +-
Rai cannot be said to be entirely without substance but we see
c 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)
D 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
E 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
F two eye witnesses. 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
G
the investigating officer of the case. r
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
H prosecution. But the question is whether or not the appellant
SAJJA.N SHARMA v. ~TATE OF BIHAR 641
[AFTAB ALAM, J.]
was one of the accused taking part in the commission of the 'A
offence.
19. PW4, Mukesh Kumar in his deposition before the court
i 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 8
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 the1 five accused
named in the FIR. He did not assign them any particular weapon
but said that they were carrying different arms and weapons. C
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
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 D
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 E
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 na.med in F
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 G.
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 H-
642 SUPREME COURT REPORTS [2011) 1 S.C.R.
A father and brother, should not have figured in the FIR. -In case
the informant missed him, PW6 Bauku Sharma would have
given his 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.
B
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
c 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
D 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 appeHant.
Satto Sharma himself and Sambhu Sharma were duly named
E 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
F Sharma was left out and he too was later named among the
accused.
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.
-G
24. This leaves PW5 only who claims to have seen the
appellant among the accused white 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
H occurrence and till then he had not disclosed the name of the
... SAJJAN SHARMA v. STATE OF 81HAR
[AFTA8 ALAM, J.)
643
appellant as one of the accused to Mukesh or to any one else. A
. .-< . In the facts and circumstances as discussed above, it becomes
difficult even to accept the testimony of PWS, 8inodanand
Kumar insofar as the appellant is concerned.
25. In this state of .evidence, it will not be wholly safe to .s
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 C
unless he is wanted in some other criminal case.
26. Let a copy of this order be placed before the Hon'ble
Judge of tt1e Patna High Court, in-charge of the State's Judicial
Academy.
D
8.8.8. Appeal allowed.
-.
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