Case Note & Summary
The case involved a criminal appeal by special leave against a judgment of the Patna High Court convicting the appellant under Section 304 of the Indian Penal Code, 1860. The appellant, Ram Prasad Sharma, was one of fourteen accused tried for offences arising out of a violent clash over clearing a water channel. The prosecution alleged that on 15 August 1960, a large group of villagers went to clear Chaksafia Danr and were confronted by a mob including the appellant, who was armed with a gun. During the confrontation, the appellant and another fired multiple rounds, killing two persons: Qudrat Mian and Kaleshwar Yadav. The Additional Sessions Judge, Bhagalpur, acquitted the appellant of murder under Section 302 IPC but convicted him under Sections 326/149, 324/34, 201 and 148 IPC. The acquittal for murder rested on two grounds: an entry in an attested copy of a Chaukidar's hath chitha (Ext. D) which indicated Kaleshwar Yadav had died three days before the incident, and the omission of Kaleshwar's name from the First Information Report, which instead mentioned one Gholtan as the victim. On appeal by the State, the High Court reversed the acquittal, holding the hath chitha entry inadmissible under Section 35 of the Evidence Act because there was no proof that it was made by a public servant in discharge of official duties. The High Court further found that the prosecution had proved Kaleshwar's death through ten eyewitnesses and the testimonies of his son and widow, and accepted the explanation of the FIR maker that he had mistakenly named Gholtan based on hearsay. Consequently, the High Court convicted the appellant under Section 304 IPC and sentenced him to seven years rigorous imprisonment. In the Supreme Court, the appellant challenged the admissibility of the hath chitha and the sufficiency of evidence. The Court, after examining Section 35 of the Evidence Act and relying on precedents, affirmed the High Court's view that the entry was inadmissible because no evidence was led to show who made it or whether it was made in official capacity. Without the hath chitha, the remaining evidence was found sufficient to establish guilt beyond reasonable doubt. The Court noted that the High Court had carefully analysed the evidence and correctly upheld the prosecution version. The appeal was accordingly dismissed, and the conviction and sentence were confirmed.
Headnote
A) Evidence Act - Admissibility of Public Records - Section 35 of Indian Evidence Act, 1872 - An entry in a public record is admissible only if proved to have been made by a public servant in discharge of official duty - The attested copy of the Chaukidar's hath chitha was not admissible as no evidence was led regarding who made the entry or whether it was made in discharge of official duty; the High Court rightly held the document inadmissible following Sanatan Senanati v. Emperor and Brij Mohan Singh v. Priya Brat Narain Sinha (Held at [699 E]).
B) Criminal Law - Appreciation of Evidence - Murder - Death established by eyewitness testimony despite mistake in FIR and inadmissible defence entry - The prosecution proved through ten eyewitnesses and the testimonies of the deceased's son and widow that Kaleshwar Yadav was shot dead by the appellant during the occurrence; the omission of his name in the FIR was satisfactorily explained by the informant who had mistakenly named another person based on hearsay; the High Court's conviction under Section 304 IPC upheld (Held at [699 F]).
Issue of Consideration
Whether the attested copy of the Chaukidar's hath chitha was admissible under Section 35 of the Indian Evidence Act, 1872, and whether the prosecution proved the death of Kaleshwar Yadav at the hands of the appellant despite the hath chitha entry and omission in FIR.
Final Decision
The Supreme Court dismissed the appeal and upheld the High Court's decision. The Court held that the High Court correctly ruled the hath chitha entry inadmissible under Section 35 of the Evidence Act and that the prosecution evidence sufficiently proved the appellant's guilt for causing the death of Kaleshwar Yadav. The conviction under Section 304 IPC and the sentence of seven years rigorous imprisonment were affirmed.
Law Points
- Legal points not extracted
- An entry in a public record is admissible under Section 35 of the Evidence Act only if proved to have been made by a public servant in discharge of official duty
- mistake in FIR does not vitiate trial if identity established and mistake explained.
Case Details
Criminal Appeal No. 208 of 1966
Sikri, S.M., Mitter, G.K., Hegde, K.S.
Citation not available, 1970 AIR 326, 1970 SCR (1) 694, 1969 SCC (2) 359
A.S.R. Chari, M.K. Ramamurthi, G. Ramamurthy, Vineet Kumar, B.P. Jha
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Nature of Litigation
Criminal appeal against conviction under Section 304 of the Indian Penal Code, 1860.
Remedy Sought
The appellant sought reversal of the High Court's judgment convicting him under Section 304 IPC and sentencing him to seven years rigorous imprisonment, and prayed for acquittal.
Filing Reason
The appellant challenged the High Court's finding that he had caused the death of Kaleshwar Yadav, contending that the trial court's acquittal based on the hath chitha entry and the FIR omission was correct and the prosecution evidence was insufficient.
Previous Decisions
The Additional Sessions Judge, Bhagalpur, acquitted the appellant of murder under Section 302 IPC but convicted him under Sections 326/149, 324/34, 201 and 148 IPC. The Patna High Court, on appeal by the State, reversed the acquittal on the murder charge and convicted the appellant under Section 304 IPC, altering the other convictions to Sections 304/149, and sentenced him to seven years rigorous imprisonment.
Issues
Whether the attested copy of the Chaukidar's hath chitha (Ext. D) was admissible in evidence under Section 35 of the Indian Evidence Act, 1872.
Whether the prosecution had established that Kaleshwar Yadav was shot dead by the appellant during the occurrence despite the entry in the hath chitha suggesting he died three days earlier and the omission of his name from the First Information Report.
Submissions/Arguments
Appellant contended that the attested copy of the Chaukidar's hath chitha was admissible and showed that Kaleshwar Yadav had died on 12 August 1960, before the date of incident, thereby rendering the prosecution case impossible.
Appellant argued that the omission of Kaleshwar's name in the FIR and the mention of another person as the victim cast serious doubt on the prosecution version.
Appellant further challenged the credibility of eyewitnesses and questioned the number of gunshot injuries.
Respondent submitted that the hath chitha entry was not admissible under Section 35 of the Evidence Act as it was not proved that the entry was made by a public servant in discharge of his duties.
Respondent contended that ten eyewitnesses and the testimonies of the deceased's son and widow firmly established that Kaleshwar Yadav was killed at the time and place alleged, and the mistake in the FIR was satisfactorily explained.
Ratio Decidendi
An entry in a public or official record is admissible under Section 35 of the Indian Evidence Act, 1872, only if it is proved that the entry was made by a public servant in the discharge of his official duty. The mere production of an attested copy does not dispense with the requirement of proving the identity of the maker and the official character of the entry. A mistake in the First Information Report, if satisfactorily explained, does not destroy the prosecution case when the identity of the deceased is established by other reliable evidence.
Judgment Excerpts
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 rightly pointed out by the High Court the learned Sessions Judge took this copy on record in an extraordinary manner.
The High Court further accepted the explanation of P.W. 1, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram Prasad because he had heard a hulla that Gholtan had been murdered.
Procedural History
The case arose from an incident on 15 August 1960. The appellant, along with others, was tried before the Additional Sessions Judge, Bhagalpur. The trial court acquitted him of murder under Section 302 IPC but convicted him for lesser offences. The State preferred an appeal (Government Appeal No. 44 of 1962) and the convicted persons also appealed (Criminal Appeal No. 530 of 1962) before the Patna High Court. The High Court by judgment dated 22 February 1966 allowed the State's appeal in part, convicting the appellant under Section 304 IPC for the murder of Kaleshwar Yadav and altering the convictions of others. The appellant then filed a petition for special leave to appeal before the Supreme Court, which was granted limited to him on 4 October 1966.
Acts & Sections
- Indian Evidence Act, 1872: Section 35
- Indian Penal Code, 1860: Sections 302, 304, 326, 324, 201, 148, 149
