FACTS:
In his statement before the police officer, Mukesh Kumar stated that he along with his uncles, Narain Kunwar and Bauku Kunwar had gone to the corn fields carrying a licensed .315 rifle and some rounds. Meanwhile, Gunanand Sharma came there to meet Narain Kunwar. The informant and his uncle Bauku Kunwar were sitting at the other corner of the field. 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 them to go back. Then, he took his uncle to the field of Laxmi Mishra that was vacant. Then, Bodhan Rai, Shambhu Sharma and Sukesh Sharma fired shots at his uncle. 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 concluded by saying that his uncle was killed by Bodhan Rai, Satto Sharma, Shambhu Sharma, Sukesh Kunwar, Paro Kunwar and other unknown persons, colluding together, due to old enmity, who also snatched away his licensed rifle. The Fard-e-beyan was incorporated in the formal FIR under sections 302, 379, 34 of the Penal Code and under section 27 of the Arms Act.
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 there was hardly any time for deliberation and for false implication of anyone who was actually not among the accused. 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. 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. 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 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.
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 convicted all the four accused under section 302 of the Penal Code and sentenced them to rigorous imprisonment for life 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. 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. All the three appeals were consolidated and heard together and were dismissed. Against the judgment of the High Court, Shambhu Sharma and Sajjan Sharma (the present appellant) jointly filed the SLP. The SLP insofar as Shambhu Sharma is concerned was dismissed but the appellant was granted leave to appeal. That was how the appellant alone stood 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.
DECISION OF THE SUPREME COURT:
The Apex Court observed that the trial court framed highly flawed charges against the accused. In view of the evidences of witnesses coupled with the medical evidence there was no room for doubt that Narain Kunwar was killed in the manner as stated by the prosecution. However, the question was whether or not the appellant was one of the accused taking part in the commission of the offence.
It was further noted that the appellant was not named in the FIR. 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 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.
It was, thus, opined by the Hon’ble Court that to maintain the conviction of the appellant under section 302 of the Penal Code was incorrect and applying the rule of caution, he must be given the benefit of doubt.