Harendra Rai vs The State Of Bihar

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1726 OF 2015

HARENDRA RAI …APPELLANT(S)

VERSUS

THE STATE OF BIHAR & ORS. …RESPONDENT(S)

JUDGMENT

VIKRAM NATH, J.

1. Everything was going as per the plan and

wish of the main accused Prabhunath Singh,

a political leader and a sitting Member of

Parliament at the relevant time as he had

mustered full support of the Administration

Signature Not Verified and the Investigating Agency; he had Digitally signed by ASHA SUNDRIYAL Date: 2023.08.18 14:01:45 IST Reason: 1 influenced and won over almost all the

witnesses of fact mentioned in the

chargesheet (who were declared hostile), the

relevant formal witnesses including the

Investigating Officer were not produced in the

trial by the prosecution, the Public Prosecutor

prosecuting the case was supporting the

defence, the Presiding Officers were

completely insensitive towards their pious

duty, but everything turned upside down

when he committed a glaring mistake and

that one mistake cost him heavily. He got the

court witness, Smt.Lalmuni Devi, mother of

deceased Rajendra Rai abducted ten days

before the date fixed for recording her

statement. This led to filing of a Habeas

Corpus Petition before the High Court, a

report submitted by the Inspecting Judge as a 2 result of an unruly incident which occurred in

the Trial Court on the date Smt.Lalmuni Devi-

CW-1 deposed before the Trial Court and

another report of the Inspecting Judge

commenting upon the judgment of acquittal

by the Trial Court. All these aspects would be

dealt in detail at a later stage.

2. This appeal assails the correctness of the

judgment and order dated 02.12.2021 passed

by learned Single Judge of the Patna High

Court in Criminal Revision Petition No. 1345

of 2009, whereby the said Revision Petition

was dismissed confirming the judgment of the

Additional Sessions Judge, Fast Track Court-

III, Patna dated 24.10.2008 passed in

Sessions Trial Nos. 469 of 2007 and 470 of

2007, acquitting Respondent Nos. 2 to 8 of all

the charges.

3

3. FIR was registered on 25.03.1995 at the Police

Station Masrakh (Panapur) District Saran at

Chapra, Bihar as Case No. 62 of 1995 under

Sections 147, 148, 149/307 of Indian Penal

Code, 18601 and Section 27 of the Arms Act.

Later on, Section 302 IPC was added as two

out of three injured died during treatment.

The said FIR was registered based on the

statement of one of the injured Rajendra Rai

at about 10AM, who subsequently succumbed

to injuries. The statement was recorded at the

corridor of Camp Rajkiya Hospital, Panapur

by Sub-Inspector N.N. Thakur of Police

Station, Panapur in the presence of two other

injured namely Daroga Rai and Smt. Devi and

also before two other persons namely

Narendar Singh and Sanjeev Kumar Singh

1 In short, “IPC”

4 who had signed as witnesses in the FIR.

4. The prosecution version, as recorded in the

FIR in the statement of Rajendra Rai, narrated

that the informant along with eight-nine other

persons of his village was returning after

casting their vote in the election on

25.03.1995 at around 9AM; when they

reached south east of his residence, five

persons came in a car armed with rifles and

guns and stopped the car; Prabhunath Singh

(accused no.1), who was the contesting

candidate for Bihar People’s Party (BPP), while

sitting in the car enquired as to whom all of

them had cast their votes; the informant

answered that they had cast their votes in

favour of Janta Dal Party having symbol of

Chakrachap; on hearing this, the car moved

towards south and stopped at a little distance; 5 Prabhunath Singh (accused no.1) opened fire

from his rifle pointing towards the informant

and others and thereafter the car sped away.

As a result of the firing, three persons got

injured.

5. On the basis of the FIR, investigation was

taken up. Inspection was made of the spot of

occurrence. Three used cartridges were

recovered from the place of occurrence, they

were sealed and a recovery memo was

prepared. The Investigating Officer recorded

the statement of the witnesses. The injured

were provided medical treatment, the doctor

prepared the injury report and after two of the

injured expired, the post-mortem reports of

the two deceased persons were also prepared.

Daroga Rai died soon after the incident and

his post-mortem was conducted on 6 26.03.1995. Rajendra Rai died after about

five months on 21.08.1995 and his post-

mortem was conducted on 22.08.1995.

6. Prabhunath Singh (accused no.1) was

avoiding the arrest, nor was he surrendering

as he was the member of the ruling party. The

District Magistrate, considering the amount of

influence being yielded by the accused, found

that it was not feasible to conduct the cases in

District Saran at Chapra and hence

recommended the transfer of all the six cases

to Hazaribagh. In all these cases Prabhunath

Singh was an accused. The transfer was

approved by the High Court. However, later in

the year 2000, upon re-organization of the

State of Bihar, as Hazaribagh fell in the State

of Jharkhand, the present trial was

transferred to District Bhagalpur in Bihar. 7

7. It was only after 11 years that charges could

be framed by the Trial Court on 26.03.2006

against all the accused for offences under

various Sections of IPC as stated above. The

prosecution examined 11 witnesses. It would

be relevant to note that out of these 11

witnesses, PW-1 to PW-7 were examined on a

single day i.e. 27.06.2006. The statement of

all these seven witnesses were more or less

similar to the effect that they saw the incident

of firing but did not see who killed the two

deceased. All seven witnesses were declared

hostile by the Prosecution. PW-8 to PW-10

(three witnesses) were examined on

10.08.2006.

8. In the meantime, on an application under

Section 311 of the Code of Criminal

8 Procedure, 19732, the Trial Court, vide order

dated 23.10.2006, summoned Lalmuni Devi

(CW-1), mother of deceased (Rajendra Rai) as

court witness and 03.11.2006 was fixed for

recording her statement. On 24.10.2006,

Lalmuni Devi (CW-1) and her husband were

abducted from their residence by none other

than the brother of Prabhunath Singh

(accused no.1) and his associates. The

appellant (son of CW-1) made a complaint to

the local police and when no action was

taken, he approached the Superintendent of

Police of District Saran and also the Director

General of Police and the State Home

Secretary which also went unattended. This

resulted into filing a petition seeking a writ of

Habeas Corpus before the Patna High Court.

2 CrPC 9

9. The said Habeas Corpus Petition was

registered as Cr.WJC No. 717 of 2006,

Harendra Rai Versus State of Bihar and

Others.

10. The said Habeas Corpus Petition was decided

by the Division Bench of the Patna High Court

vide the detailed judgment dated 13.03.2007.

The Division Bench issued certain directions

with respect to the trial in question. The said

judgement would be dealt with in detail at a

later stage.

11. Pursuant to the direction issued vide

judgment dated 13.03.2007, the trial

proceeded but again in a most shabby

manner, not even complying with the

directions of the High Court. The Special

Public Prosecutor for the State, instead of

getting the witnesses examined before the 10 Court, filed affidavits on their behalf

reiterating their earlier statements. Only two

witnesses were re-examined namely PW-1 and

PW-10. With respect to PW- 2, PW-4 to PW-7,

affidavits were filed stating that they had

nothing further to add and they reiterated

their deposition given earlier. Shrimati

Lalmuni Devi (CW-1) was again examined and

cross-examined on 29.09.2008 where she

fully supported the prosecution story.

Prosecution evidence was closed on

29.09.2008. The Trial Court, vide judgment

dated 24.10.2008, acquitted all the accused in

both the Sessions Trials bearing no. 469 of

2007 and 470 of 2007. There was no

challenge to the judgment of acquittal by the

State.

11

12. During the trial, on the date of the statement

of CW-1 i.e. 03.11.2006, there was some

altercation in the Trial Court where the

lawyers and pairokar of the accused,

assaulted the family members of CW-1 inside

the Courtroom. This was reported in the

newspapers inviting attention of the

Inspecting Judge. The Inspecting Judge set up

an inquiry in which he collected evidence and

recorded statements. Based upon the same,

he gave a detailed report dated 21.02.2007

criticizing the conduct of the Presiding Officer

of the Trial Court. The judgement in the

Habeas Corpus petition incorporates the

findings of the Inspecting Judge in the report

dated 21.02.2007. Relevant extract from the

judgment in the Habeas Corpus petition is

reproduced hereunder:

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“On coming to learn, through some newspaper report about the fracas created in the Court of 7th Additional Sessions Judge, Bhagalpur while the court proceedings were going on, Mr. Justice C.K. Prasad, Inspecting Judge of the judgeship called for reports and ordered an enquiry in the matter. After a thorough and painstaking enquiry, he gave a report, dated 21.2.2007. In the beginning of the report, he noted the circumstances in which the trial arising from Masrakh (Panapur) P.S. Case No.62 of 1996, that should normally have taken place at Chapra, was first transferred to Hazaribagh and when as a result of the bifurcation of the State Hazaribagh fell in Jharkhand, it was brought to Bhagalpur. After taking into account the reports submitted by the District and Session Judge, the 7th Additional Sessions Judge, the Public Prosecutor, statements of witnesses and the report of Dr. D.N. Gautam to whom he entrusted the enquiry, the Hon’ble Judge, in his report, found and held as follows.

“I do not have the slightest hesitation in endorsing the reports of the District and Sessions Judge, Bhagalpur as also the Additional Director General of Police that the witness Lalmuni Devi was not produced under proper security. She was frightened and under heavy stress prior to her examination. She was intimidated inside the Court room prior to her examination. She was not normal and the Court atmosphere was highly tensed and abnormal. The materials on record led him to conclude that evidence of Lalmuni Devi cannot be said to have been voluntarily made.

I am of the considered opinion that had the Presiding Officer of the Court exercised little discretion, this untoward incident 13 ought not have taken place. The Presiding Officer of the Court having found that the witness was not looking normal and, in fact, looking frightened and having not been produced under proper security, he ought to have taken these facts seriously and prevented deflecting the Court of Justice. The direction of this Court to record evidence cannot be construed to mean that the Court was obliged to record her statement despite the fact that she was produced without proper security. I am of the opinion that the Presiding Officer of the Court had also failed miserably in the matter.”

13. The proceedings of the Habeas Corpus

petition also need to be appropriately referred

to. After the incident of abduction of Lalmuni

Devi (CW-1) on 24.10.2006, the Habeas

Corpus petition was filed on 31.10.2006 and

was taken up by the Court on 01.11.2006. On

the said date, it was adjourned on the request

made by the Advocate General. On

02.11.2006, the Advocate General stated

before the Court that, on receiving report of

abduction of Lalmuni Devi and Rama Rai, 14 investigation was started and in the night

itself Rama Rai appeared before the Officer In-

Charge and the Sub Divisional Police Officer.

He stated that, apprehending some threats

from different quarters, he and his wife had

gone underground for self-protection. Rama

Rai said that he had come forward on his own

to speak the truth about going into hiding on

their own accord on account of certain rumors

that were spread. Rama Rai, however, refused

to disclose the whereabouts of his wife

Lalmuni Devi. The Advocate General assured

the Court that Lalmuni Devi would be given

full protection not only for appearing before

the Court but also otherwise so that she may

not be harmed by anyone. On the above

statement of the Advocate General, the

Division Bench of the Patna High Court 15 hearing the Habeas Corpus Petition directed

for the production of Rama Rai to record his

statement. The next date fixed was

08.11.2006 for production of Rama Rai. It was

further provided by the Division Bench that in

the meantime if Lalmuni Devi appears before

the Trial Court on 03.11.2006, the Court may

proceed with the case but if she failed to

appear on the said date, the prosecution case

should not be closed till further orders by the

Court.

14. On 08.11.2006, it was reported that the

statement of Lalmuni Devi was recorded on

the date fixed i.e. 03.11.2006. Thereafter she

was taken from Bhagalpur to Chapra from

where she had been abducted and her

statement was recorded under Section 164

CrPC before the Magistrate at Chapra. In the 16 said statement, she stated that she was not

abducted by anyone. The said statement was

filed before the High Court along with the

counter affidavits. On the above submissions,

the Advocate General stated that the petition

had become infructuous.

15. The Division Bench was further informed that

on 03.11.2006, the deposition of Lalmuni Devi

was not normal and smooth. Her appearance

had led to a clash between two groups of

people although the said incident was not

reported by the Trial Judge. However, it had

attracted the attention of the Inspecting

Judge, Bhagalpur through newspaper reports

and based on the same he called for reports

and directed for enquiry. The final report

dated 21.02.2007 given by the Inspecting

Judge has already been referred to above. 17

16. On behalf of the writ petitioner before the

High Court, it was submitted that their

parents were not made free and they were still

under the clutches and remote control of the

accused. The Division Bench, therefore, did

not close the proceedings of the case and

adjourned the matter awaiting the result of

the enquiry by Justice C.K. Prasad, as he was

the Inspecting Judge.

17. The Division Bench further records that in the

meantime two complaints were filed regarding

the abduction of Lalmuni Devi and her

husband; one was filed by their daughter in

law Girija Devi at Panapur Police Station

registered as Case No. 81 of 2006 and the

other was lodged at Masrakh Police Station

Dist.Saran registered as Case No.129 of 2006

at the instance of one Shankar Rai. Later on 18 Shankar Rai retracted and had filed a written

note stating that he had filed the complaint

under some misunderstanding. The said

Shankar Rai was one of the persons from the

side of the abductees accompanying Lalmuni

Devi at the time of her appearance before the

Trial Court on 03.11.2006. The Division

Bench directed that both these complaints be

thoroughly investigated and the reports of

investigation be submitted under the

signature of the Deputy Inspector General of

Police, Saran range.

18. On 17.11.2006, Lalmuni Devi appeared before

the Division Bench and filed an affidavit duly

sworn in by her. In the said affidavit, it was

stated that she and her husband Rama Rai

were abducted by the men of Prabhunath

Singh and were under their complete control 19 all along. She appeared before the Court and

gave oral statement before the Division Bench.

The Court has recorded that she was an old

and rustic village woman and seemed to be

under stress and looked quite vulnerable. She

spoke only Bhojpuri in which one of the

members of the Division Bench Justice S.P.

Singh was fluent. She stated before the Court

that she and her husband were in fact

abducted by the men of Prabhunath Singh.

They had used force against her and had

threatened her. Both her statements before

the Trial Court on 03.11.2006 and her

statement under Section 164 CrPC were not

free and voluntary but under duress and

intimidation.

19. At this stage also the Advocate General

reiterated that nothing further survives in the 20 matter with regard to the abduction. However,

the Division Bench declined to close the

proceedings noting that it was evident that

lurking behind the surface, were much larger

and far better issues than the alleged

abduction of two old villagers. The Registrar

General of the High Court was given direction

for making arrangements of stay of Lalmuni

Devi at the Judges’ Guest House at Patna so

that she was isolated from any influence and

that her statement was to be recorded at the

Guest House on 20.11.2006 by a Magistrate.

The conduct of the Police was also noticed by

the Division Bench that they were not willing

to see the reality and continued to work under

the influence of Prabhunath Singh. The

Division Bench directed the Additional

Director General of Police Dr. D.N. Gautam to 21 supervise the proceedings.

20. On 20.11.2006, the statement of Lalmuni

Devi was recorded in writing as also a video

cassette by the Magistrate was prepared of the

same and submitted in a sealed cover. The

Advocated General on 05.12.2006 submitted

the interim report by Dr. Gautam. He had

severely criticized the supervision report and

described it as one of the shallowest of the

shallow pieces of investigation. It was then

that the Court directed the investigation of

two cases would be made under the overall

charge of Dr. Gautam.

21. On 24.01.2007, the Advocate General

submitted the report by Dr. Gautam. In the

meantime, report of the Inspecting Judge

dated 21.02.2007 was also received by the

Division Bench. The orders passed on 22 08.11.2006, 17.11.2006 and 05.12.2006 were

challenged before this Court by way of Special

Leave Petition (Criminal) Nos. 187, 377 and

378 of 2007 respectively. All the SLPs were

dismissed by some observations by a common

order dated 15.01.2007.

22. The Division Bench had three materials before

it namely affidavit of Lalmuni Devi, her

statement recorded by the Magistrate on

20.11.2006, the reports of Dr. Gautam,

Additional Director General of Police dated

30.11.2006, 16.12.2006 and 22.01.2007 and

the enquiry report by Justice C.K. Prasad, the

Inspecting Judge, Bhagalpur dated

21.02.2007.

23. The Division Bench proceeded to record in

detail the version of Lalmuni Devi as to how

23 she had been abducted along with her

husband by Dina Nath Singh (brother of

Prabhunath Singh) and Chotelal, MLA from

Parsa. She had stated in detail as to what all

places they had been taken to and how they

were ill-treated. She also described that

Prabhunath Singh, his security guard, the

Mukhiya and Shankar told her to change her

statement and if she would not do the same,

then Prabhunath Singh would kill her other

son (Harendra Rai) as well. She also described

how she was taken to Court room where the

incident took place in which the men of

Prabhunath Singh assaulted her son,

daughter-in-law and son-in-law who wanted

to take her with them. The Judge was sitting

in Court and in his presence her family

members were assaulted but the Judge said 24 nothing. She was also threatened that she

would also be killed. She was again taken by

Prabhunath Singh and his men from the

Court on 03.11.2006. She also stated that she

had not given any statement on 03.11.2006

and only her thumb impressions were taken

as she was frightened and afraid that she

might lose her other son, daughter-in-law and

son-in-law who were being continuously

assaulted. It was after three-four days that

she reached her home. She also narrated in

her statement in the enquiry report about the

working of Prabhunath Singh and that he was

again preparing to get her abducted. The

honest and true version of Lalmuni Devi has

been recorded above. In the report submitted

by the Additional Director General of Police,

he had condemned the report of D.I.G., Saran 25 range, Chapra. He had concluded the report

by observing that the investigation of the two

cases was quite casual and the supervision

and control of the investigation was also

pitiable. He had also recorded the statements

of Lalmuni Devi and Rama Rai which was

again reproduced in the order and the same is

not being repeated as it is more or less the

same as recorded above. Dr. Gautam in his

report also commented that the sequence of

events started only after the application under

Section 311 CrPC was allowed and Lalmuni

Devi was called as a court witness on

03.11.2006.

24. Further, according to the report of Dr.

Gautam, after abduction of Lalmuni Devi, her

son and daughter-in-law represented not only

to the officer-in-charge, Panapur Police 26 Station but also to the Superintendent of

Police, the Director General of Police and the

Home Secretary at Patna. The Director

General of Police forwarded the petition given

by the son and daughter-in-law to the

Superintendent of Police, Chapra by fax for

taking necessary action on 25.10.2006. The

same was communicated and received in the

office of Superintendent of Police, Chapra on

the same day but it remained unattended till

02.11.2006. It was only after the petition was

instituted on 31.10.2006 that formal notice

was taken of the said petition by the

Superintendent of Police. The report further

notices that from 24.10.2006 till 03.12.2006,

the son of Lalmuni Devi had been running

from pillar to post between Chapra, Patna and

Bhagalpur but no public authority paid any 27 heed to his complaints. Dr. Gautam stated

that he had tried to put the investigation of

the two cases back on the right track and also

pointed out the glaring omissions and

deficiencies in the investigation. He had also

observed in his report that the cases

instituted against the witnesses and the

attitude of the Police was another cause of

grave concern. He also made a request to the

Court to be spared from being involved in the

matter any further as he had no machinery of

his own by which he could conduct an

independent and impartial investigation.

25. The Division Bench further proceeds to record

the findings of the Inspecting Judge given in

his report dated 21.02.2007, which we have

already reproduced in the earlier part of this

order.

28

26. The Division Bench further records the finding

that the above facts and circumstances and

the evidence placed on record clearly establish

the connection between abduction of Lalmuni

Devi at Chapra and the murder trial taking

place before the Bhagalpur Court. Lalmuni

Devi had been abducted to prevent her from

deposing freely in the trial relating to the

murder of her son. The abductors of the

Lalmuni Devi succeeded in their design to

make sure that she was not allowed to make a

free deposition before the Bhagalpur Court.

The finding of the Division Bench is extracted

from the order and reproduced hereunder: -

“…The reports of Dr. D.N. Gautam and the statement of Lalmuni Devi clearly establish the connection between her abduction at Chapra and the murder trial taking place before the Bhagalpur Court. It is evident that Lalmuni Devi was abducted to prevent her from deposing freely in the trial relating to the murder of her son. Her statement made in the Court and recorded by the 29 Magistrate at the Judges’ Guest House, Patna and the report of Justice C.K. Prasad, the Inspecting Judge of Bhagalpur Judgeship further make it clear that the abductors of Lalmuni Devi succeeded in their design and she was not allowed to make a free deposition in the Bhagalpur Court.”

27. Despite the above material which had come

on record, the senior counsel appearing for

Prabhunath Singh before the High Court

continued to oppose any directions to be

issued by the Division Bench. He reverted to

the old theme that the petition had been

rendered infructuous and the Court was

needlessly proceeding further in the matter.

The submission was that both the reliefs

claimed in the petition namely, recovery of

Lalmuni Devi and the other for getting a case

registered and investigation carried out

regarding her abduction stood already granted

and the proceedings may be brought to an

end. He also objected to the Court’s previous 30 orders calling for reports from Dr. D.N.

Gautam, Addl. Director General of Police. He

also made an effort to argue that the report

was based upon material which was in the

nature of hearsay evidence and as such on its

basis the Court may not hold that deposition

of Lalmuni Devi before the Trial Court on

03.11.2006 was not free and voluntary.

28. The Division Bench rejected the submissions

of Mr. Vindhya Kesari Kumar, learned senior

counsel appearing for Prabhunath Singh as

being without any substance or merit. The

Division Bench further proceeded to record

the finding that the deposition of Lalmuni

Devi on 03.11.2006 before the Trial Court was

not voluntary but was made under duress and

intimidation while she was under the control

of the accused. Following is the relevant 31 extract from the said judgment:

“…Every criminal trial, specifically a trial relating to a double murder is supposed to be held fairly and impartially. The present trial was not held at Chapra, in departure from the normal, but was transferred to Hazaribagh and then to Bhagalpur in order to ensure that it should be held fairly. But the materials before the court leave no room for doubt that the proceedings of the trial were violently interfered with and the trial’s sanctity has been badly abused. In light of the materials before it, the court has no hesitation in finding that the deposition of Lalmuni Devi on 03.11.2006 in Sessions Trial No.19 of 2003 before the 7th ADDL. Sessions Judge, Bhagalpur was not voluntary. It was made under duress and intimidation while she was fully under control of the accused. What this court finds indescribably regrettable is that the subversion of the trial was made possible only with the abetment, by acts of omission and commission, of those who were primarily responsible to ensure that it should be held independently, fairly and impartially. The unholy drama that took place in the Trial Court was not possible without the inaction and connivance of the Chapra Police, the active help and co-operation by the P.P. conducting the trial and the defence lawyer appearing for the accused. The saddest part in the entire episode is that the Presiding Judge turned a Nelson’s eye to what was happening in the Court room. He not only remained a silent spectator in the Court room but did not even report the matter to this Court. When an enquiry was directed there was an apparent attempt to cover up by all concerned...”

32

29. Towards the end, the Division Bench recorded

that the Advocate General by the said time,

having perused the material which was

placed, became fully alive to the seriousness

of the matter. He gave up his earlier stand

which was similar to the stand of the counsel

for the accused Prabhunath Singh that the

petition had been rendered infructuous and

further proceeded to give some useful

suggestions. It would be worthwhile to

reproduce the stand of the Advocate General,

as recorded by the Division Bench, which

reads as follows:

“…Here, I am pleased to note that the Advocate General was fully alive to the gravity of the matter. He completely gave up his earlier stand that with the appearance of Lalmuni Devi, the writ petition had become infructuous and gave some useful suggestions to the Court. The Advocate General submitted that though there was an apparent connection between the abduction of Lalmuni Devi at Chapra and the trial taking place at Bhagalpur, the two matters were required to 33 be dealt with separately as one was still at the stage of police investigation while the other was a trial before a Court. With regard to the abduction case at Chapra, he stated that the Government is willing to accept investigation by any mode and by any agency as may be directed by the Court. With regard to the trial at Chapra, he submitted that the Government was willing to change the P.P. and to appoint a Special P.P. to conduct the trial in his place. He also submitted that prima facie the statement made by Lalmuni Devi before the Trial Court on 03.11.2006 was not free and voluntary and hence, she was required to be re-examined. He also said that there was need to change the Presiding Judge by transferring the case to another Court.…”

30. Here an apt Latin Maxim which means he who

acts through another, acts himself, may be

quoted “qui facit per alium facit per se”.

31. Insofar as the investigation regarding the

incident of abduction is concerned, the

Division Bench, although noticed that the

same was deplorable at that time but as it

was still at the stage of investigation, the

Advocate General assured that it would be

done in a fair and impartial manner and also 34 expeditiously. Directions were also issued that

the report of Dr. Gautam along with the copy

of the judgment, be sent to the Director

General of Police and the Home Secretary,

Bihar to take curative measures in the matter

without any loss of time. The last part of the

judgment contains the directions issued by

the Division Bench with respect to the murder

trial which was pending at Bhagalpur. The

Division Bench found the suggestions given

by the Advocate General positive and fully

acceptable. Apart from transferring the trial

out of Bhagalpur, the Court also issued a

couple of other directions. The said directions

are reproduced hereunder:

“…In light of the discussions made above, it becomes necessary to give the following directions with regard to Sessions Trial No.19 of 2003 arising from Masrakh (Panapur) Police Station Case No.62 of 1995.

i. The proceedings of Sessions Trial no.19 35 of 2003 pending before the 7th Additional Sessions Judge, Bhagalpur is directed to be transferred to Patna. The records of the case should be transmitted forthwith to the Sessions Judge, Patna who should either keep the case in his own court or assign it to some Additional Sessions Judge or a Fast Track Court who would hold the trial on a propriety basis so as to conclude it without any undue delay and preferably within three months from the date of receipt of the records ii. The Statement Government is directed to appoint a Special P.P. to conduct the trial. The Government shall take into account the way the trial was tried to be subverted in the past and would appoint as P.P. an experienced lawyer of reputed integrity.

iii. The deposition of Lalmuni Devi taken on 03.11.2006 would stand scrapped and she will be examined afresh before the Trial Court at Patna under Section 311 of the Code of Criminal Procedure.

iv. The order passed by the Bhagalpur Court closing the prosecution case is set aside and the trial shall proceed from the stage of examination of Lalmuni Defendant vi as directed above.

v. It will be open to the Special P.P. to make an application for recall of witness(establishment) earlier examined. In case such a petition is filed, the Trial Court shall pass appropriate orders, in accordance with law.

vi. The report of Hon’ble Mr. Justice C.K. Prasad is directed to be placed before the Standing Committee of the Court for consideration and suitable action. 36 vii. The Bihar State Bar Council is directed to examine the roles of the P.P. and the defence counsel who were conducting Sessions Trial No.19 of 2003 before the 7th Additional Sessions Judge, Bhagalpur and to take appropriate action in the matter.

This writ petition is disposed of with the aforesaid observations and directions.”

32. The above completes the proceedings which

were undertaken in the Habeus Corpus

petition resulting into the judgment of the

Division Bench dated 13.03.2007 of the Patna

High Court.

33. Pursuant to the directions of the Division

Bench, the trial was transferred to Patna from

Bhagalpur. The proceedings at the Sessions

Court, Patna were equally disappointing and

the conduct of the State Government, the

Public Prosecutor so appointed and the

investigating agency, including that of the

Trial Judge, remained unchanged. Although

37 in the earlier part of the judgment, the

proceedings, after the judgment dated

13.03.2007 of the Division Bench, before the

Trial Court have been incorporated but in

order to maintain the continuity the same at

the cost of repetition are reproduced here

again:

34. Pursuant to the direction issued, vide

judgment dated 13.03.2007, the trial

proceeded but again in a most shabby manner

and not complying with the directions of the

High Court in letter and spirit. The Special

Public Prosecutor for the State, instead of

getting the witnesses examined before the

Court, filed affidavits on their behalf

reiterating their earlier statements. Only 2

witnesses were re-examined namely PW-1 and

PW-10. With respect to PW-2, PW-4 to PW-7, 38 affidavits were filed stating that they had

nothing further to add and they reiterated

their deposition given earlier. Shrimati

Lalmuni Devi (CW-1) was again examined on

29.09.2008. Prosecution evidence was closed

on 29.09.2008. The Trial Court, vide

judgment dated 24.10.2008, acquitted all the

accused in both the Sessions Trials bearing

no. 469 of 2007 and 470 of 2007.

35. It would be appropriate to refer to the

investigation, proceedings and evidence led

during the trial right from the stage of FIR till

the second statement of CW-1 Lalmuni Devi

which was recorded on 29.09.2008. After the

incident on 25.03.1995 at about 09.00 AM,

the three injured were taken to the State

Hospital Camp, Panapur. The Fard Bayan was

39 registered on the oral statement given by one

of the injured (later deceased) Rajendra Rai as

recorded by Sub-Inspector N.N. Thakur at

10.30 AM. The said Fard Bayan was signed by

the injured Rajendra Rai, two witnesses

Narendra Singh, Sanjiv Kumar Singh and by

the officer in-charge, Panapur Police Station,

Camp Panapur. The Fard Bayan also bears

the endorsement of Sub-Inspector N.N.

Thakur forwarding it to the Police Station In-

charge Masrakh under Sections 147, 148,

149, 307 IPC and Section 27 of the Arms Act

for registering the report. Contents of the Fard

Bayan have already been reproduced in the

earlier part of this judgment.

36. On its basis, FIR was registered at P.S.

Panapur as Case No. 62 of 1995 on

26.03.1995. The FIR contains endorsement of 40 various authorities and Courts of its perusal.

It also bears the endorsement that Section

302 IPC was added on 30.03.1995. On record

is also available the Fard Bayan of Lalmuni

Devi recorded during the investigation on

21.08.1995.

37. The statement of one Baidyanath Tiwari and

one of the injured Smt. Devi recorded under

Section 164 CrPC is also available on record.

Baidyanath Tiwari stated that the incident of

firing had taken place at around 09.00 AM.

He was a teacher of Sanskrit in Gogal Singh

High School Nayagaon, Chapra and on the

relevant date was the Presiding Officer at the

Polling Booth No.100. Around 09.00 AM, he

noticed that four-five anti-social elements,

armed with fire-arm weapons, started

indiscriminate firing. In that group, there was 41 one short height person who had covered his

face. He further stated that the CRPF deputed

at the Polling Booth and the patrolling party

started firing in retaliation which created a

stampede. At some distance, he noticed a

couple of people having fallen down in which

one was a woman. He further stated that he

did not know whether the injured had

received the injury from the firing of anti-

social elements or the CRPF men. He however

states that Prabhunath Singh was not one of

those who were firing. He also states that he

knew Prabhunath Singh from before. This

statement was recorded on 23.05.1996 i.e.

after more than one year from the date of the

incident.

38. Smt. Devi’s statement under Section 164

CrPC was recorded on 17.05.1996. She had 42 also stated that when she was returning home

after casting her vote, a little ahead of the

school where the polling was taking place

from the field of Raher (kind of Pulse), four-

five persons came out, they were armed. Some

of them had covered their faces with piece of

cloth and they started firing, as a result of

which, she along with Rajendra Rai, Kadama

Rai and Daroga Rai received injuries. Daroga

Rai had died on the spot and Rajendra Rai fell

unconscious. At that time, Prabhunath Singh

was not there. She further stated that she

knew Prabhunath Singh ever since he became

a Member of the Legislative Assembly.

39. The chargesheet dated 29.08.1995 is also on

record and bears an endorsement of the CJM

dated 30.08.1995. The injury reports of

Daroga Rai, Smt. Devi and Shri Rajendra Rai 43 are also on record. The Post-mortem reports of

both Rajendra Rai and Daroga Rai are on

record.

40. The Trial Court had framed charges against

the accused Krishna Nandan Singh,

Shatrughan Singh, Santosh Singh, Sheetal

Singh, Satyendra Singh and Harendra Singh

on 26.05.2006 under Section 302/149, 147,

148 IPC and Section 27 of the Arms Act. On

the same day separately, a charge was framed

against Prabhunath Singh by the same Trial

Court under Section 302 IPC and Section 27

of the Arms Act. On 27.07.2006, the

statement of seven witnesses were recorded as

follows:

PW-1 - Parma Rai;]

PW-2 - Harinath Rai;

PW-3 – Kedama Ram;

PW-4 – Harinder Rai;

44 PW-5 – Dinanath Bhagat;

PW-6 – Smt. Devi;

PW-7 – Tarkeshwar Rai.

41. These witnesses i.e. PW-1 to PW-7 are

mentioned as witnesses in the chargesheet. It

is interesting to note that their statements are

almost identical. The opening line is that they

were giving this evidence on their own free

will; that they had not come to depose under

any coercion or threat; that nobody has

kidnapped them and brought them for giving

evidence. Very unusual opening of deposition

by all these seven witnesses.

42. They further stated that on 25.03.1995 which

is the date of incident, at about 09-09:30AM,

they were returning after casting their votes

when they heard shots being fired; that they

did not see who fired the shots; Daroga Rai,

Rajendra Rai and Smt. Devi had received fire 45 arm injuries; that they were returning along

with the injured after casting their votes; that

Police did not record their statements.

43. The prosecution requested for these seven

witnesses to be declared as hostile and sought

permission to cross-examine them, which was

granted. The cross-examination by the

prosecution of PW-1, PW-2, PW-4, PW-5, PW-

6 and PW-7 is similar. However, insofar as

PW-3 Kadama Ram is concerned, he was

neither sought to be declared hostile nor was

he cross-examined. All six witnesses denied

having narrated to the Police regarding the

incident supporting the prosecution story.

44. It would further be relevant to mention here

that PW-1 was re-examined on 24.09.2008

pursuant to the directions issued by the

Division Bench of the High Court on 46 13.03.2007. This time, he again came up with

a similar statement that he had come to

depose on his own accord and that he was not

giving the statement under any coercion. The

prosecution again was trying to further help

the accused and tried to make up for the

lacuna left earlier, as this time PW-1

mentioned the names of the persons he was

accompanied with and deliberately did not

take the name of CW-1. He further stated that

all of a sudden firing started from the fields of

Raher as a result of which Rajendra Rai, Smt.

Devi and Daroga Rai received injuries. He

further stated that the fields of Raher were

dense and one feet higher than his height and

as a result he could not see the persons who

were firing. He further stated that he took the

injured to the hospital at Panapur where the 47 Doctor had referred them to the Chapra Sadar

Hospital. He further states that the Police did

not make any further inquiry from him. He

further denied that he had not given any

statement that it was Prabhunath Singh of

BPP who had come in the car. At this stage,

on the request of the Special Public

Prosecutor, he was sought to be declared

hostile with liberty to cross-examine. In the

cross-examination, he denies his statement

recorded by the Police during the

investigation. Rest of the statement is with

respect to the treatment provided to the

injured at different stages. He also denied the

suggestion that earlier he had stated that

CRPF had also fired in retaliation. He also

denied the suggestion that under the

influence of the accused he is hiding the true 48 facts. During cross-examination by the

defence, whatever was not stated earlier to

protect the accused was stated in this round

of statement. He stated that all three of them,

after receiving injuries, had become

unconscious and were not in a position to

speak anything. He further stated that the

Police Inspector did not record their statement

at the hospital as he was throughout with the

injured. He further goes on to state that

Lalmuni Devi was not accompanying them

when they were returning after casting their

vote when the incident took place. He also

goes on to state that Lalmuni Devi was not

there even during the course of the treatment.

He, however, admits that his leader was Lalu

Yadav and he was a worker of his party.

45. Rest of the witnesses did not come forward to 49 give their statement pursuant to the

directions of the High Court. However, they

filed their affidavits stating that they have

nothing further to add and would only

reiterate their earlier statements.

46. PW-8 and PW-9 were the security personnel

who were on duty at the Polling Station. They

only stated that they heard the sound of

firing. They did not know who had fired and

who had been injured.

47. PW-10 is Dr. Sudhir Kumar, who had

examined the injuries of three injured and

had proved the injury report which was

marked as Ex.2 (Smt. Devi), Ex.2/1 (Daroga

Rai) and Ex.2/2 (Rajendra Rai). In the cross-

examination, he states that all the injured

were in sensitive condition and were badly

injured so he immediately referred them to the 50 Chapra Hospital for better treatment. He

further states that no police person came to

his hospital and recorded statement of any of

the three injured persons. Again, he was re-

examined on 24.09.2008 on the request of the

Public Prosecutor in which statement he

further strengthened the case of the defence

by repeatedly stating that all the three injured

were unconscious (at least three times).

48. PW-11 is Dr. Ashok Kumar Gada, who had

conducted the post-mortem on the body of

Daroga Rai, proved the post-mortem report

that it was under his signature which was

marked as Ex.3.

49. CW-1 Lalmuni Devi, in her original statement

dated 03.11.2006, had stated that she had

come to depose on her own; nobody has

brought her; that she did not know anything 51 about the case; that the Police had not

recorded her statement at the Patna Medical

College; that she did not put her thumb

impression or signature on any document.

50. It would also be worthwhile to briefly refer to

the proceedings before the Trial Court after

the judgement of the High Court dated

13.03.2007.

a) Actual proceedings started on 13.06.2008

before the Trial Court at Patna. On the said

date, on the request of the six accused they

were allowed to remain on their previous bail.

Thereafter five-six dates were fixed on which

nothing substantial happened.

b) On 08.09.2008, the Special Public Prosecutor

moved an application under Section 311 CrPC

stating that the prosecution wants to examine

evidence of CW-1 Lalmuni Devi, PW-1 Parma 52 Rai and PW-10 Dr. Sudhir Kumar who had

already been examined earlier before the High

Court. The case was ordered to be put up on

10.09.2008. The Trial Court allowed the

application under Section 311 CrPC and

ordered for recalling of the witnesses Parma

Rai (PW-1) and Dr. Sudhir Kumar (PW-10). It

further directed the Superintendent of Police,

Chapra to produce the prime witness Lalmuni

Devi (CW-1) and fixed 24.09.2008 for their

evidence. On 24.09.2008, the order sheet

records that both the witnesses PW-1 and

PW-10 were cross-examined and discharged.

It is in this statement that the prosecution, by

producing them, further strengthened the

case of the defence instead of strengthening

the case of the prosecution. Further Lalmuni

Devi (CW-1) could not be produced on the 53 said date. Further directions were issued for

her production on the next date, which was

fixed for 29.09.2008. Another application filed

by the Special Public Prosecutor for re-

examining PW-2, PW-4, PW-5, PW-6, and PW-

7, was allowed.

c) On 29.09.2008, the Special Public Prosecutor

filed affidavits of PW-2, PW-4, PW-5, PW-6

and PW-7. Further on the said date, CW-1

Smt. Lalmuni Devi was examined, cross-

examined, and discharged. Briefly the

contents of the deposition of CW-1 may be

reproduced here. In her examination-in-chief,

as per the translated copy provided by the

appellant which we have verified from the

original record, she stated that:

“I am deposing willingly by and without any coercion in the Court. I had given my statement before the Assistant Sub- Inspector of Pirbahore Police Station on 54 21.08.1995. The A.S.I. of Police had recorded my statement. I affixed my thumb impression thereon after giving my statement. I had stated before the A.S.I. of police that my Dewar (husband’s younger brother) namely Kedama Rai had gone with my son to caste their votes at middle school in the village Dhanuki at about 10.00 o’clock in the day. We were returning after casting our votes. Motor vehicles came there from village Satzora.

Prabhunath Singh asked as to how the votes were seing caste. I responded that people were casting their votes on “Chakra” (wheel). The motor vehicle entered into the rahar (a kind of pulse) field. Thereafter Prabhunath Singh fired shot from his vehicle. Three persons namely Rajendra Rai, Daroga Rai and Srimati Devi sustained bullet injuries however Srimati Devi sustained bullet injury on her arm. I had taken the dead- body of my son to Panpur P.S. from the booth and the dead-body was sent to Patna from the Police station. My son was given medical treatment at Patna but he succumbed to his injury. His post mortem examination was conducted. My statement was recorded by the police after the demise of my son. Now I do not have to give my statement before the Court. I had given my statement before the Judge at Bhagalpur. My son died after six months of the occurrence.”

In her cross-examination, she was

subjected to many suggestions to which she

gave satisfactory explanation. The defence 55 could not elicit any major discrepancies in her

examination-in-chief. The cross-examination

is as under:

“I went back to my house with the police after adducing evidence at Bhagalpur. I had not gone to the Magistrate with the S.I. of police of Panapur P.S. after three days of coming back to my house. My Dewar Kedama Rai had come to the hospital with Rajendra Rai. Parma Rai is not my relative. There was no one with me at the time I was giving my statement to the police at hospital. Kedama rai was present with me at the time I was giving my statement. I had given my statement on the day on which my son died. I disclosed all the facts whatsoever relating to the occurrence before the S.I. of Police. The S.I. of police had read over the content of my statement to me. I affixed my thumb impression thereon after understanding the content to be true. Besides the statement given at hospital.

The S.I. of Police did neither ask anything to me nor record my statement again in course of investigation.

I had not given any petition against the police in the court that the police did not record my statement correctly.

It is not a fact that I had not given such statement before the police that we were returning after casting our votes and a which came from the side of the village Satzora and Prabhunath Singh had asked how the voting was going on and I responded that I had caste my vote in favour of “Chakra” mark. The vehicle 56 went into the rahar (a kind of pulse) field and thereafter Prabhunath Singh fired shot which hit three persons. The shots hit the arms of Rajendra Rai, Daroga Rai and Srimati Devi. I took the deadbody of my son to Panapur P.S. from the booth and the deadbody was sent to Patna from the police station but he succumbed to his injury.

Harendra Rai is my son. Harendra Rai himself had told me that I had to utter the name of Prabhunath Singh among the shooters. It is not a fact that I have deposed falsely in the Court.”

d) On the same date i.e. 29.09.2008, the Trial

Court closed the prosecution evidence and

fixed 15.10.2008 for examination of the

accused under Section 313 CrPC. On

15.10.2008 examination of the accused under

Section 313 CrPC was recorded. The defence

also filed a certified copy of the statement of

Lalmuni Devi recorded under Section 164

CrPC by Shri Sampat Kumar, Judicial

Magistrate, Chapra on 06.11.2006 in

connection with the abduction case in

57 Panapur P.S. Case No. 81 of 2006.

e) Further an application was filed by private

counsel Shri Ranjan Kumar Sinha, advocate

on behalf of the informant, that additional

evidence may be recorded for meeting the

ends of justice. He also submitted that the

Investigating Officer of the case is not

examined, although liberty was given by the

High Court for taking any additional evidence

in the case. The Trial Court did not find it

necessary to summon the Investigating

Officer. The Trial Court further closed the

evidence of the defence and fixed 17.10.2008

for arguments.

f) On 17.10.2008, another petition was filed by

the private counsel for the informant, stating

that the prosecution evidence was closed

without taking proper steps for the evidence of 58 the Investigating Officer, the Doctor, PW-3

Kadama Rai and seizure list witnesses and

prayed for them being called for recording

their statements as court witnesses. This

petition was also rejected by the Trial Court

on the ground that private counsel has no

locus standi to file such a petition. It

completely failed to be sensitive to the facts

and circumstances of the case as was

apparent from the material on record.

g) The Trial Court also rejected another petition,

moved on behalf of one Kishori Rai for

recording his statement, on the ground that

he was a stranger. Although Kishori Rai had

prayed for transfer of the case as they had lost

faith in the Court, the case was fixed on

18.10.2008 for further arguments.

h) On the said date, again an application was 59 filed by Narendra Singh and Kishori Rai

through their private counsel under Section

311 CrPC for recording statement of Narendra

Singh, Kishori Rai and Sanjeev Kumar Singh

two of them being witnesses of Fard Bayan,

and Kishori Rai had produced the cartridges

found at the place of occurrence of which the

seizure list was prepared in presence of Janki

Rai and Chabili Rai. This application was also

rejected on 18.10.2008 on the same ground

that it was moved by strangers, who were not

witnesses in the chargesheet and the

application was not filed by the Special Public

Prosecutor. On the same date, arguments

were heard and 20.10.2008 was fixed for

parties to file their written arguments.

Thereafter the Trial Court proceeded to deliver

the judgment on 24.10.2008.

60

51. With respect to the judgment of the acquittal

dated 24.10.2008, a grievance petition was

submitted by the seizure list witnesses, which

was acknowledged by the then Inspecting

Judge, Justice Navin Sinha, as he was then.

The entire Sessions Trial Court records were

called for and duly examined and studied by

the Inspecting Judge. The Inspecting Judge

noticed the glaring deficiencies both deliberate

and malicious, step by step. The Inspecting

Judge not only noticed the deliberate mischief

on the part of the Investigating Agency but

also the Public Prosecutor and the Presiding

Judge of the Trial Court in not discharging

their pious duty of doing justice. The

Inspecting Judge recorded that the trial that

had been conducted by the Presiding Officer

61 leads to only two possible conclusions, either

the judgment is based on extraneous

considerations or the Officer completely lacks

judicial acumen. He then goes on to record

that he examined seven random Sessions

Trial judgments of the Officer and was of the

view that it cannot be said that he does not

know the law which meant the conduct of the

Trial Judge was for extraneous consideration.

The Inspecting Judge, vide his report dated

04.05.2009, recommended appropriate action

against the Officer. The said report dated

04.05.2009 deserves to be reproduced and it

is so done:

“Hon'ble the Chief Justice, Re: Judgment and order dated 24.10.2008 by Sri Man Mohan Chaudhary, Additional Sessions Judge, F.T.C. III, Patna in Sessions Trial No.469-470 of 2007 arising out of Panapur P.S. Case No.62 of 1995 - GR No.819 of 1995 under Sections 147, 148, 149, 302, 307 of the Penal Code and Section 27 of the 62 Arms Act.

In a Sessions Trial, normally it is the accused, who are on trial. Occasionally, apart from the accused, the judiciary, as an institution, is also on trial and its credibility is put to test. The present is definitely one such case.

On a grievance petition by a seizure list witness, as the Inspecting Judge, Patna Judgeship, the entire Sessions Trial records were called for. I have gone through and studied the records.

The informant Rajendra Rai, was deceased soon after the incident. Another injured Daroga Rai was also deceased subsequently. Three other persons were injured. The F.l.R. is in the nature of a dying declaration. One person was specifically named as accused, having fired at the deceased. Three persons were named as F.l.R. witnesses, and another two persons signed the FIR as witness to the contents. A seizure list was prepared with regard to empty pellets seized from the spot signed by the independent witnesses.

The named accused, a powerful political personality, sought to interfere with the trial at Chapra. To ensure a fair trial, the case was transferred to Hazaribagh. On re-organization of the State of Bihar, the trial was transferred to Bhagalpur.

At Bhagalpur witnesses were intimidated in the court room, and unruly created. Witnesses were kidnapped to prevent from deposing. The Presiding Officer remained a mute witness and did not submit any report to this Court. The Inspecting Judge on basis of a newspaper report made a surprise visit and submitted a 63 report. Cr.WJC No.717 of 2006 (2007(2) PLJR

244) was filed by Harendra Rai, a prosecution witness and brother of the deceased for the abduction of their mother to prevent from deposing. The Division Bench noticed how the process of law was being subverted and the trial interfered including the report of the Inspecting Judge. The trial was ordered to be transferred to Patna to ensure a fair trial.

The Division Bench quoted extensively from the judgment of the Supreme Court in (2004) 4 SCC 158 (Zahira Habibullah Sheikh Vs. State of Gujarat). It cautioned the Presiding Officer to be wary and ensure that justice was done in all respects. Liberty was given for recall of prosecution witnesses under Section 311 CrPC.

The Presiding Officer in the order sheet dated 08.09.2008 specifically states that he has gone through the order of the Division Bench and then quotes the directions with regard to recall of witnesses but makes no reference to the observation from the case of Zahira Sheikh. He also refers to Cr. Misc. No.44589 of 2006 preferred by Kishori Rai, a seizure list witness for his examination under Section 311 CrPC.

The FIR in the form of a dying declaration was not marked as an exhibit. The Presiding Officer himself states that it is the nature of a dying declaration. The application filed by Kishori Rai, seizure list witness, to examine him along with Narendra Singh and Sanjeev Kumar Singh (attesting witness to the FIR) as witnesses, was rejected by stating that no such application was filed by the Public Prosecutor for their examination. No statement of the latter two was their under 64 Section 161 CrPC and neither were they charge sheeted witness. The application of Kishori Rai was rejected by saying that the original seizure list was not on record. Kishori Rai was not a charge sheet witness or the informant but a stranger and no application by him on behalf of the informant, who was dead, would be entertained.

The P.P. remained silent. The Presiding Officer preferred to ignore the directions of the Division Bench from the observations in the case of Zahira Habibullah Sheikh.

After the order of the Division Bench, the Public Prosecutor filed an application for recall of certain witnesses including FIR witnesses (not the attesting witnesses). The Public Prosecutor then himself filed their affidavits that they did not wish to depose beyond what was deposed by them at Bhagalpur. The Public Prosecutor then requested for evidence to be closed. The Court took no further steps to verify the voluntary nature and genuineness of the affidavits.

The conduct of the Presiding Officer ignoring these duties prescribed in the case of Zahira Habibullah Sheikh in taking no steps for having the F.I.R. exhibited is shocking. After acknowledging that it was in the form of a dying declaration, he rejects it as it had not been proved. No coercive steps whatsoever were taken to secure the attendance of the Investigating Officer. It was simply stated that despite efforts and notice to D.G.P., he has not appeared. If the I.O. was evading appearance, the search for truth made his appearance a compelling necessity for the Presiding Officer. The original seizure list went missing. The Presiding Officer took no steps 65 for reconstruction or holding an enquiry why and how the seizure list has gone missing from the records. Affidavits filed by the Public Prosecutor were accepted by the Presiding Officer as a gospel truth. The directions of the Division Bench of the duties of the Presiding Officer were completely ignored in the grab of a direction for expeditious disposal of the trial. The Presiding Officer did not notice the dichotomy that the Public Prosecutor himself filed the application for recall of witnesses in the changed circumstances and then filed affidavits on their behalf himself. The application of seizure list witness, Kishori Rai, for his examination and that of the two F.l.R. witnesses was rejected on absolutely frivolous grounds even after noticing that the Public Prosecutor was not supporting the application. Cr. Misc. No.44589 of 2006, by Kishori Rai, a seizure list witness, was disposed with the observation that the Public Prosecutor has already been directed in Cr. W.J.C. No.717 of 2006 to move appropriately under Section 311 CrPC.

The duty of the Presiding Officer was to search for the truth in the criminal trial. He completely abdicated his duties and consciously chose to ignore the order of caution by the Division Bench reminding him of his duties.

The manner in which the trial has been conducted by the Presiding Officer leads to only two possible conclusions. The judgment is either based on extraneous considerations or the Officer completely lacks judicial acumen. I had called for random seven Sessions Trial judgments of the Officer. It cannot be said that he does not know the law.

66 The public image of the judiciary is tested in such cases. The Officer has failed the institution.

The desirability of appropriate action against the Officer merits serious consideration.”

52. The said report was placed before the

Standing Committee of the High Court and

considered in the meeting dated 07.07.2009

wherein it was resolved to accept the

recommendation. Later on when the said

minutes came up for confirmation in the

meeting dated 14.07.2009 it was resolved vide

agenda item No.1(ii) that the recommendation

made by the Inspecting Judge not only be

accepted but be enlarged with further

direction that the judgment in question dated

24.10.2008 be listed on judicial side before

appropriate Bench for considering suo motu

exercise of revisional power under CrPC. The

said resolution of the Standing Committee is 67 reproduced hereunder:

“Resolution It is resolved to confirm the proceedings of the meeting of the Standing Committee held on 7th July 2009 with the following modifications.

i. Under the Agenda- Any other matter- it is resolved to place on record the appreciation of valuable contribution made by Hon’ble Mr. justice V.N. Sinha as a Member of Committee during his tenure, which has just expired (V.N. Sinha, J. Abstaining.) ii. In respect of Agenda Item No.5 of Vol.I the resolution will stand enlarged with a further direction that the judgment in question dated 24.10.2008 be listed on judicial side before appropriate Bench for considering suo motu exercise of revisional power under Code of Criminal Procedure.

iii. In respect of Additional Agenda Item No.2 the resolution is modified to the extent that shri Krishna Kant Tripathi shall also not be posted as Principal Judge in Family Court at Aurangabad but as District and Sessions Judge Nawadah and Shri Akhilesh Kumar Jain Shall be posted as District and Sessions Judge at Jehanabad instead of Nawadah.”

53. It is on the decision of the Standing

Committee that Criminal Revision No. 1345 of

2009 was registered with cause title as “The

68 State of Bihar Versus Prabhunath Singh &

Ors”. The Learned Single Judge dismissed the

said criminal revision, vide impugned

judgement dated 02.12.2011, giving rise to

the present appeal.

54. Learned Single Judge of the High Court, while

dismissing the revision, recorded the following

findings:

a) Revisional Power is akin to the appellate

power in view of Section 401 CrPC.

b) Fard Bayan, turned into lodging of FIR, has

not been proved by any witness. The officer

or authority, who recorded the said

statement, has not been produced as a

witness. Moreover, it does not contain a

certification of the mental/physical health

of the injured (later deceased). Besides, the

non-production of any such witness, who 69 was present and heard the statement being

made, has not been produced as a witness.

Hence, Fard Bayan is not liable to be read

as evidence.

c) PW-10, the doctor, who attended to the

injured persons and had prepared the

injury report, had stated that the three

injured were unconscious. Hence, the

deceased Rajendra Rai (the injured) was not

in a position to make his statement (Fard

Bayan/Bayan Tahriri). He also stated that

Daroga Rai was very serious and

accordingly, after having given first aid, all

the injured were referred to Sadar Hospital,

Chapra.

d) Dr B.D. Prasad had conducted the post-

mortem of Rajendra Rai, but he was not

produced in Court as a prosecution witness 70 and the contention that his report could be

admitted under Section 294 of CrPC, is

unacceptable as the post-mortem report is

not covered by the said provision.

e) CW-1 Lalmuni Devi is not a hearsay

witness, as held by the Trial Court, but is a

tutored witness in view of her last two lines

in cross-examination. (The High Court went

one step further from the Trial Court in

treating the CW-1 as a tutored witness.)

f) Any other prosecution witness of fact does

not corroborate the testimony of CW-1.

Instead, their testimonies are against CW-1

as no other prosecution witness has stated

about her presence.

g) It was observed that although CW-1 was not

named in the chargesheet but Pirbahor

Police Station probably recorded her 71 statement while she was attending to her

injured son in the Primary Medical Health

Centre (PMHC), which is sufficient to

indicate that her statement was recorded

during the investigation.

h) Zahira Sheikh’s judgement is not applicable

as it relates to mayhem on account of

communal hatred and disharmony,

resulting in some mass massacres. The

present case may have some political tinge,

but that could not be of the same or deeper

hue as was in Zahira’s case.

55. We have heard learned counsel for the parties

and also perused the original record.

56. The arguments advanced on behalf of the

appellant are briefly summarized as follows:

a) None of the issues flagged in the report

72 dated 04.05.2009 of the Inspecting Judge

regarding the manner and illegality of trial

of the case were considered much less in

accordance with law.

b) Trial of the case was not conducted as per

directions vide order dated 13.07.2007 in

Cr.WJC No. 717/2006 passed by the

Division Bench of the High Court in the

Habeas Corpus Petition.

c) A case is made out for de-novo trial to cure

the travesty of justice committed in a case

wherein in a broad day light, two persons

were done to death, apart from causing

injury to another.

d) Witnesses were not allowed to be properly

examined and the trial of the case was not

conducted by the Special Public Prosecutor

as per directions of the High Court.

73 e) The Special Public Prosecutor of the case

was not competent person since he was not

having practice as an advocate for ten years

in terms of Section 24(8), CrPC.

f) The findings in the impugned order are

perverse and erroneous and the evidences,

available on record are not appreciated

properly.

g) The evidence of CW-1 has not been

appreciated in accordance with law either

by the Trial Court or the High Court. On the

sole evidence of CW-1 the conviction of

accused deserves to be recorded.

h) Not a single Police Officer, including the

Investigating Officer, was examined in the

case showing clear malice.

57. On the other hand, learned senior counsel

appearing for the Respondent Nos. 2 to 8 74 submitted as follows:

a) That the judgment of the High Court and

the Trial Court are just, valid and proper,

based upon the evidence adduced during

trial.

b) It was a case of no evidence as all the

witnesses turned hostile.

c) Lalmuni Devi’s (CW-1) evidence was tutored

and could not be relied upon.

d) The FIR itself was not proved.

e) The Doctor, who had examined the injured,

had stated that they were in an

unconscious state and as such also

Rajendra Rai could not have been in a

condition of narrating the incident.

f) Neither the Investigating Officer nor any of

the police officials, though may be formal in

nature were produced.

75 g) Scope of revision before the High Court was

limited and so would be the status before

this Court.

h) No perversity or material irregularity have

been found or argued by the learned

counsel for the appellants.

i) The present appeal, with its limited scope,

deserves to be dismissed.

58. Learned counsel appearing for the State of

Bihar has supported the appellant.

59. Before dealing and discussing the evidence led

in the Trial Court, relevant facts relating to

the manner in which the trial has been

conducted, deliberate lapses on the part of the

Public Prosecutor in leading the prosecution

witness, lapses on the part of the Trial Court

in not exercising the powers vested in it to

ensure a fair and just trial, the facts 76 mentioned in the reports of the Inspecting

Judge and also the findings recorded by the

High Court in the Division Bench, need to be

mentioned.

Lapses on the part of the prosecution conducting

the trial and that on the part of the Investigating

Agency:

60. Briefly the lapses are summarized as under:

a) No explanation was given for not producing

the scribe of the FIR. In case the scribe was

not available for some reason then someone

else from the police station could have been

produced to prove the hand writing and

signature of the scribe.

b) The Investigating Officer not produced by

the prosecution, is again a clear and

deliberate lapse.

77 c) Non-production of other prosecution

witnesses of preparing the recovery/seizure

list, inquest report, carrying the dead-body

to the hospital, and absence of any effort to

prove other formal aspects of the

investigation clearly indicate malice and

deliberate lapse on the part of the

prosecution.

d) The conduct of the Public Prosecutor in

filing affidavits in evidence of the witnesses

of fact despite directions of the High Court

and further examining witnesses under 311

CrPC to strengthen the case of defence

reflects the tainted role of the Public

Prosecutor.

61. The legal issues which arise for consideration

in the present case may be summarized as

under:

78

A) Whether the Supreme Court, in appeal

against acquittal, can consider the High

Court’s judgement dated 13.03.2007 passed

in the Habeas Corpus Writ Petition, which

was not part of the evidence produced

(although it was part of the Trial Court

record) and was not relied upon by the

prosecution before the Trial Court, as a

piece of incriminating evidence in the

nature of a Public Document and, if yes, up

to what extent?

B) Whether the previous or subsequent

conduct of the accused, established on

record, can be treated as a circumstance

against the accused in view of Section 8 of

the Evidence Act?

C) Whether the FIR or Bayan Tahriri can be

said to be proved as a piece of reliable 79 prosecution evidence and if so, what would

be the position of law on the issue of

treating the FIR or Bayan Tahriri as the

Dying Declaration?

D) Whether the testimony of a Prosecution

Witness (an old feeble, rustic, illiterate lady

and mother of the deceased and an eye-

witness of the incident), who stated in the

end of her cross- examination that “her son

(another alive son) had asked her to take

the name of accused before the Court,” can

be treated to be a reliable evidence against

such accused, especially in view of the

checkered and abnormal history of the

case?

Issue (A): - Relevance and admissibility of the FIR:

62. According to the general procedure, facts need

80 to be proved by adducing evidence in the

Court of law, and the evidence must be

produced in accordance with the procedure

mentioned in the Indian Evidence Act, 1872.

The doctrine of judicial notice, as provided

under Section 56, is an exception to this rule.

63. Section 56 of the Evidence Act says that “No

fact of which the Court will take judicial

notice need to be proved.” Section 57 of the

Evidence Act goes one step further by

providing that the Court has no other option

but to take judicial notice of the facts

mentioned in the list given in the Section as it

uses the word “shall” and not “may”. Section

58 of the Evidence Act says that if the parties

or their agents have agreed to admit a fact

during the court proceeding or in writing

before the hearing, then such fact need not be 81 proved unless the Court believes that it needs

to be proved. The aforementioned three

Sections i.e. 56 to 58 of the Evidence Act are

reproduced hereunder:

“56. Fact judicially noticeable need not be proved.––No fact of which the Court will take judicial notice need be proved.

57. Facts of which Court must take judicial notice.––The Court shall take judicial notice of the following facts: –– [(1) All laws in force in the territory of India;] (2) All public Acts passed or hereafter to be passed by Parliament 1 [of the United Kingdom], and all local and personal Acts directed by Parliament 1 [of the United Kingdom] to be judicially noticed;

(3) Articles of War for [the Indian] Army [Navy or Air Force] (4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;] (5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;

(6) All seals of which English Courts take judicial notice: the seals of all the [Courts in [India] and of all Courts out of [India] established by the authority of [the Central Government or the Crown Representative]; the seals of Courts of Admiralty and 82 Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorised to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in [India];

(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in [any Official Gazette];

(8) The existence, title and national flag of every State or Sovereign recognised by 10[the Government of India];

(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;

(10) The territories under the dominion of 10[the Government of India];

(11) The commencement, continuance and termination of hostilities between [the Government of India] and any other State or body of persons;

(12) The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorised by law to appear or act before it; (13) The rule of the road [on land or at sea]. In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it 83 may consider necessary to enable it to do so.

58. Facts admitted need not be proved.––No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

64. We are concerned with Section 56 of the

Evidence Act, which deals with the authority

of a Court to accept certain facts, which are

either of common knowledge or from sources

which guarantee the accuracy or are a matter

of authoritative official record or court record,

without the need to establish such fact. The

judicial notice of any fact is taken when the

facts cannot reasonably be doubted.

65. This Court, in its various pronouncements,

has taken support of Section 56 of the

Evidence Act to do substantial justice in

84 respective matters. Some of them are being

reproduced hereinafter to get a better picture

of how judicial notice is taken:

a) In the case of State of Kerala v. Unni3, in

paragraph 27 it has been held as follows:

“27. Judicial notice can be taken of the fact that each village would not have a chemical laboratory where the process of analysis of ethyl alcohol can be carried out.” For example, if a sample is taken in a village, by the time sample is sent for and is analysed, the volume of ethyl alcohol may increase. Although we are informed that some chemical is mixed when a sample is taken, no material has been placed in that behalf. (Emphasis added)

b) In the case of Prabhakara v. Basavaraj K.4,

it was observed in paragraph no. 21 as

follows:

“21. A relief can only be on the basis of the pleadings alone.

Evidence is also to be based on such pleadings. The only exception would be when the parties know each other's case very well

3 (2007) 2 SCC 365 4 (2022) 1 SCC 115

85 and such a pleading is implicit in an issue.

Additionally, a Court can take judicial note of a fact when it is so apparent on the face of the record. (Emphasis added)

c) In the case of Ved Mitter Gill v. UT,

Chandigarh5, in paragraph 26, it was held

as follows:

“26.………………………………………... The links of the escaped undertrial prisoners with the Babbar Khalsa International, a known and dreaded terrorist organisation was also clearly expressed in the impugned order, as one of the reasons, for it being impracticable, to hold an inquiry against the appellant/petitioners. It is a matter of common knowledge, and it would be proper to take judicial notice of the fact, that a large number of terrorists came to be acquitted during the period in question, on account of the fact that witnesses did not appear to depose against them on account of fear, or alternatively, the witnesses who appeared before the courts concerned for recording their deposition, turned hostile, for the same reason.” (Emphasis added)

d) In the case of Joseph M Puthussery vs

T.S. Jhon and others6, this Court was

dealing with an appeal filed under Section

5 (2015) 8 SCC 86 6 (2011) 1 SCC 503

86 116 A of the Representation of People Act,

1951, against the order of a single bench of

the High Court declaring the election of the

appellant as Member of Kerala Legislative

Assembly from No. 106, Kallooppara

Constituency as void on the ground that he

was guilty of the corrupt practice within the

meaning of sub-Section 4 of Section 123 of

the Act. While evaluating the findings

recorded by the High Court, this Court

considered the scope of Section 56 of the

Evidence Act in paragraph 65 and observed

as follows:

“65. The High Court has summarily described "Crime" Magazine to be a yellow journal. Whether "Crime" magazine is a yellow journal is a matter of opinion and not of fact. It is impossible to conclude that an opinion of this sort is a judicially noticeable fact for the purposes of Section 56 or Section 57 of the Evidence Act, 1872. There is nothing in the impugned judgment which indicates that any evidence was led, much less considered as to whether 87 "Crime" magazine is a yellow journal and hence magazine could not have been relied upon by the appellant in forming a belief that the contents of the magazine were not untrue.” (Emphasis added)

66. The law, in respect of taking judicial notice of

any fact, may be summarised in the following

manner:

(i). The doctrine of judicial notice, as provided

under Section 56, is an exception to general

rules of evidence applicable for proving any

fact by adducing evidence in the Court of

law.

(ii). According to Section 56 of the Evidence Act,

judicial notice of any such fact can be taken

by the Court, which is well-known to

everyone, which is in the common

knowledge of everyone, which is

authoritatively attested, which is so

apparent on the face of the record, etc.

88

(iii). Except in the rarest of rare cases, judicial

notice of any fact is generally not taken in

criminal matters in the normal course of

proceeding, and the case is decided on the

basis of oral, material and documentary

evidence adduced by the parties to find out

the guilt or innocence.

67. As discussed above, the judicial notice of any

fact is generally not taken in criminal matters,

but the present matter stands on an

altogether different footing in view of what has

been noted hereinbefore. It falls in the

category of rarest of rare cases and hence, it

requires a different approach. This Court, in

its considered opinion, finds that the

judgement in the Habeas Corpus Petition was

passed on the basis of notes of the Inspecting

Judge of the High Court, the report of 89 Additional Director General of Police,

statement of CW-1 Smt. Lalmuni Devi

recorded in Court before the Magistrate under

the directions of High Court, her affidavit filed

before the High Court, her

statement/disclosure in Bhojpuri before one

of Judges hearing the Habeas Corpus petition

and several other authoritative materials after

giving the opportunity of hearing to the

parties, including the accused of the crime in

question. In the said judgement, certain

inferences, observations and findings arrived

at by the Division Bench have a crucial

impact on the merit of the present case, as it

gives a complete picture as to how the

prosecution version in the present case was

being demolished brick by brick by using

political authority and muscle power with the 90 aid of not only the police administration but

also with the aid of Public Prosecutor and

unfortunately, the Presiding Officer of the

Trial Court also conducted himself in a

manner unbecoming of a Judicial Officer,

despite directions and continuous vigil by the

High Court.

68. The judgement dated 13.03.2007, which is a

public document, is well discussed and is

based upon authoritative materials and was

passed in consonance with the doctrine of

audi alteram partem. Moreover, it has a torch

bearer effect over the facts of the case. Thus,

it qualifies the requirement of law for the

purpose of taking judicial notice thereof, and

this Court takes judicial notice of the

inferences, observations and findings arrived

at by the Division Bench and the directions 91 issued in its judgement dated 13.03.2007 to

the extent of the subsequent conduct of the

accused, deplorable functioning of the Public

Prosecutor, Police Administration and the

Presiding Officer of the Trial Court to extend

undesirable favour to the accused.

69. Another Latin Maxim, which means that a

judicial decision must be accepted as correct,

may be usefully extracted here, “res judicata

pro veritate accipitur”.

Issue (B): - Conduct of the accused-Section

8:

70. In the case in hand, the conduct of the

accused is not only relevant under Section 8

of the Evidence Act but is also one of the

major circumstances to arrive at a conclusion

about his guilt. Section 8 of the Evidence Act

is being reproduced hereinafter: 92

“8. Motive, preparation and previous or subsequent conduct. — Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.”

The illustration (e) of Section 8 throws some

light on the case in hand and is significant in

the present matter, which is being reproduced

hereinafter:

“Illustration (e) -A is accused of a crime. The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.”

71. In a very interesting case of Anant

93 Chintaman Lagu v State of Bombay7, this

Court, while holding the accused of that case

guilty of murder, has touched on the aspects

of relevancy of conduct of the accused

subsequent to the incident in question, and

its inference by the Court to decide the guilt

and innocence of the accused. Relevant

extracts from the aforesaid judgement are

quoted herein below:

“…A criminal trial, of course, is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material… ***

What inference can be drawn from his conduct after the death of Laxmibai is a matter to be considered by us. And in this connection, we can only say at this stage that if some prior conduct is connected intrinsically, with conduct after death, then

7 AIR 1960 SC 500

94 motive of the appellant would be very clear indeed...

*** These arguments, however, are of no avail, in view of the appellant’s entire conduct now laid bare, which conduct has been proved to our satisfaction to have begun not after the death of Laxmibai but much, earlier. This conduct is so knit together as to make a network of circumstances pointing only to his guilt…”

72. In the case with which we are dealing, there is

no iota of doubt that the accused-Respondent

No.2 was instrumental in making all possible

efforts to wipe out the evidence against him

and the Prosecution machinery as also the

Presiding Officer of the Trial Court, if we may

say so, was used as a tool of his high-

handedness.

73. The obvious question pops up in the mind of

any prudent person, as to why he was

instrumental, when he was not guilty of the

offence to which he was being tried. The

obvious answer to this would reasonably come 95 to mind of any prudent person that his guilty

mind was fearful about the result. All these

aspects leave no room for doubt that the

subsequent conduct of Respondent No.2 is

one of the major circumstances pointing

towards his guilt for the incident that

occurred at 9AM on 25.3.1995.

74. We may quote a Latin Maxim which aptly

means that a person who receives advantage

must also bear the burden, “qui sentit

commodom, sentire debit et onus”

Issue (C): -Status of the Bayan Tahriri/Written Statement of the deceased

75. Before discussing the status of the record of

the case, it is noted, at the cost of repetition,

that this Court, with the strength of Section

56 of the Evidence Act, has already taken

judicial notice of certain findings and 96 observations recorded by the Division Bench

of the High Court in the Habeas Corpus

Petition.

76. According to the case record, the incident had

occurred at 09:00 AM on 25.03.1995. A

written statement (Bayan Tahriri) of the

injured Rajendra Rai was recorded in CMHC,

Panapur, on the morning of 25.03.1995 at

10:30 hours. An FIR was lodged on

25.03.1995 at ………. Hours, which was based

on the written statement (Bayan Tahriri) of

the injured Rajendra Rai, who subsequently

succumbed to the injuries he received in the

incident. The FIR was forwarded to the

Judicial Magistrate on 26.03.1995, and on

27.03.1995, the FIR was seen by the Judicial

Magistrate.

97

77. Because of the indescribably regrettable

subversion of the Trial proceedings, the formal

witness, i.e., the Constable Clerk and

Investigating Officer, were not produced to

prove the lodging of FIR and written

complaint. Eventually, the written

statement/Bayan Tahriri, as well as the FIR,

were not marked as Exhibits. All the

witnesses of fact, except CW-1 Lalmuni Devi

(mother of deceased Rajendra Rai), had

turned hostile either under fear or being won

over. Even the testimony of PW-10, Dr. Sudhir

Kumar also appears to be influenced by the

accused - side as he repeatedly stated (four

times) before the Trial Court that “injured

were unconscious”, despite the fact that the

injury report does not mention that the

“injured were unconscious” 98

78. The deplorable conduct of the Presiding

Officer of the Trial Court also resulted in the

miscarriage of justice at various steps of the

trial, but the most objectionable aspect is that

one person Kishori Rai, a seizure list witness

(who was not included as a witness in the

chargesheet by the Investigating Officer) had

filed an application before the Trial Court

seeking his examination as well as

examination of other two persons namely

Nagendra Singh and Sanjeev Kumar Singh

(who had signed said Bayan Tahriri as

attesting persons but were not included as

witnesses in the chargesheet by the

Investigating Officer) as witnesses during the

trial. However, the said application was

rejected by the Trial Court, vide order dated

18.10.2008, on flimsy grounds like, the 99 application has not been moved through

Public Prosecutor, the seizure list is not on

record, the person Kishori Rai is not a witness

of the chargesheet. The Presiding Officer of

the Trial Court adopted such a pathetic

approach despite noticing the detailed order

dated 13.03.2007 passed by the Division

Bench of the High Court in the Habeas

Corpus Petition.

79. Even the High Court, despite acknowledging

in the impugned judgment that Revisional

Power is akin to the appellate power in view of

Section 401 CrPC, failed to set the record

straight by exercising the appellate powers

given under Sections 386, 389, 390 and

391CrPC, as provided under Section 401(1) of

CrPC.

100

80. Now in this background, we would analyze

whether the FIR or Bayan Tahriri can be said

to be proved as a piece of reliable prosecution

evidence and if so, what would be the position

of law on the issue of treating the FIR or

Bayan Tahriri as a Dying Declaration.

81. It is an undisputed position of law that the

FIR is a public document defined under

Section 74 of the Evidence Act. Various High

Courts have expressed this view from time to

time.

a) In the case of Channappa Andanappa

Siddareddy and others v. State8, the

Karnataka High Court held as follows:

“3. The F. I. R. being a record of the acts of the public officers prepared in discharge of the official duty is a public document as defined under Section 74 of the Evidence Act. Under Section 76 of the Evidence Act, every public officer having the custody of a public document, which any person has a right to 8 1980 Crl LJ 1022

101 inspect, is bound to give such person on demand a copy of it on payment of the legal fees therefore.”

b) The Single Bench of Gujrat High Court, in

the case of Jayantibhai Lalubhai Patel vs.

State of Gujrat9, concluded as follows:

“10. From the aforesaid discussions, it clearly appears that whenever FIR is registered against the accused, a copy of it is forwarded to the Court under provisions of the Code. Thus it becomes a public document. Considering (1) the provisions of Article 21 of the Constitution of India, (2) First Information Report is a public document in view of Section 74 of the Evidence Act.”

c) In the case of Shyam Lal vs State of U.P.

And Ors10, the Division Bench of Allahabad

High Court followed the same view.

d) The Division Bench of the Delhi High

Court, while dealing with a public interest

litigation being Court on its Own Motion

9 1992 CRl LJ 2377 10 1998 Crl LJ 2879

102 through Mr. Ajay Chaudhary vs. State11,

discussed pronouncements of various High

Courts and held that there can be no trace

of doubt that FIR is a public document as

defined under Section 74 of the Evidence

Act.

e) Recently, a Single Bench of Chhattisgarh

High Court took similar view in the case of

Narendra Rajput vs. State of

Chhattisgarh through Secretary,

Department of Home Affairs (Police) and

Others12.

82. This Court endorses the above view and holds

that FIR is a public document defined under

Section 74 of the Evidence Act.

83. Now, what is to be seen is that any public

11 2011 CrlLJ 1347 12 2019 SCC Online Chh 16

103 document does not stand proven by the mere

fact of its production. It is proved in the usual

manner of proof when an objection to it is

taken. The Court usually accepts a fact as

proved when, after considering the document

and the evidence before it, concludes that

what is stated in the document is believable

based on what the document, on the face of it,

states along with what a witness to the

document states about the contents and how

the document was prepared/authored.

84. According to the common practice of Trial

Court and also according to the General Rules

(Criminal) as applicable in the case, all the

papers and documents filed and produced

during any inquiry and trial of a criminal case

are marked as ‘Paper No.’ and at the stage of

evidence, when any article, weapon, material, 104 or document is admitted as evidence, it is

marked as an exhibit, be it in any manner

whatsoever either by use of alphabets or by

use of numbers (generally as Ex-Ka for

prosecution evidence and Ex-Kha as defence

evidence).

85. At the stage of evidence, when any

document/paper is formally produced for

being treated as a piece of evidence, the Court

looks at two basic aspects. Firstly, the

existence of the document on the Court’s

record and, secondly, the proof of its

execution or its contents being sufficiently

deposed to by a witness having requisite

knowledge thereof, whereafter, the document

in question is marked as exhibit. At the stage

of exhibiting any document as a piece of

evidence, the truth of what is stated in the 105 document is not considered. It is left open to

final evaluation at the trial after cross-

examination, and the entire testimony of the

witness about the existence and contents of

the document is weighed in conjunction with

various other factors emerging during a trial.

At the final evaluation stage, the Trial Court

concludes whether the document speaks the

truth and decides what weight to give it for

final decision. In other words, its evidentiary

value is analysed by the Courts at the time of

final judgment.

86. This Court in the case of Arbada Devi Gupta

vs Birendra Kumar Jaiswal and Anr.13, in

paragraph 16 has held as follows:

“16. ………………..The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its

13 (2003) 8 SCC 745

106 execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'………...”

87. In this view of the matter, the marking of a

piece of evidence as ‘exhibit’ at the stage of

evidence in a Trial proceeding is only for the

purpose of identification of evidence adduced

in the trial and for the convenience of the

Court and other stakeholders in order to get a

clear picture of what is being produced as

evidence in a Trial proceeding.

88. As we are dealing with this case as an

“exceptionally painful episode of our Criminal

Justice System”, we have already taken

judicial notice of the judgement passed by the

High Court in the Habeas Corpus petition for

drawing an adverse inference against the

subsequent conduct of the accused of the trial

in question, it’s Public Prosecutor, Police 107 Administration and the Presiding Officer of

the Trial Court as provided under Section 8 of

the Evidence Act.

89. In the present case, considering the failure of

State machinery and failure of the Trial Court

to ensure a fair trial from the perspective of

the victim side, the aspect of non-marking of

the FIR and Bayan Tahriri as an exhibit, non-

production of the formal witnesses, i.e., the

Constable Clerk and Investigating Officer to

prove the lodging of FIR/Bayan Tahriri and

the flimsy rejection of application filed by

Kishori Rai seeking his examination as a

witness along with the examination of

Nagendra Singh and Sanjeev Kumar Singh

(who had signed said written

statement/Bayan Tahriri as attesting persons)

as witnesses in the Trial proceeding do not 108 vitiate the genuineness of the FIR and Bayan

Tahriri, and we refuse to give any discount to

the accused persons for non-exhibition

thereof.

90. The above view finds support from the

judgement of this Court in the case of Ram

Bihari Yadav vs State of Bihar & Ors14,

relevant extract whereof is quoted herein

below:

“Para 13. Before parting with this case, we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would

14 (1998) 4 SCC 517

109 amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.”

91. Now further issue crops up about the

treatment of the FIR/Bayan Tahriri as dying

declaration and in this respect various earlier

pronouncements of this Court have clarified

the position of law that the statement by an

injured person recorded as FIR can be treated

as a dying declaration and such a statement

is admissible under Section 32 of the Indian

Evidence Act. It was also held that the dying

declaration must not cover the whole incident

or narrate the case history. Corroboration is

not necessary for this situation; a dying

110 declaration can be the sole basis for

conviction.

92. In the case of Munnu Raja and another v.

State of M.P.15, the following observations are

relevant:

“Para 5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P-14, being the FIR which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a FIR, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.

Para 6. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that 15 (1976) 3 SCC 104

111 the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated… *** Para 10. We are in full agreement with the High Court that both of these dying declarations are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the appellants.

He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.”

93. This Court in the case of Ram Bihari Yadav

vs State of Bihar & Ors16, has discussed the

law in paragraph 6 as follows:

“Para 6. The law relating to dying declaration

- the relevancy, admissibility, and its probative value- is fairly settled. More often the expressions 'relevancy and admissibility' are used as synonyms but their legal implications are distinct and different for more

16 (1998) 4 SCC 517

112 often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be put in cross- examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible.

The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case. in this case, the thrust of the submission relates not to relevancy or admissibility but to the value to be given to Exh.2. A dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case.”

94. We may usefully reproduce the relevant

paragraphs of the judgement of this Court in

the case of Suresh Chandra Jana vs. State

of West Bengal and Ors., reported in (2017)

113 16 SCC 466, which reads as follows:

“32. It would not be out of place to discuss the importance of dying declaration under Section 32 of the Evidence Act. The principle underlying Section 32 of the Evidence Act is ‘Nemo moriturus praesumitur mentire’ i.e., man will not meet his maker with a lie in his mouth. Dying declaration is one of the exceptions to the rule of hearsay. It is well settled that there is no absolute rule of law ‘that the dying declaration cannot form the sole basis of conviction unless it is corroborated’. The rule requiring corroboration is merely a rule of prudence [refer Paniben (Smt.) v. State of Gujarat, (1992) 2 SCC 474; Munnu Raja and Anr. v.

State of Madhya Pradesh, (1976) 3 SCC 104; State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552; Ramawati Devi v. State of Bihar, (1983) 1 SCC 211]. Moreover, if the person making the dying declaration survives, then such statement would not be admissible under Section 32 of the Evidence Act, rather such Statements may be admissible under Section 157 of the Evidence Act [refer Gajula Surya Prakasrao v. State of A.P., (2010) 1 SCC 88]

33. In light of the importance the dying declaration holds in a criminal trial, the dereliction of duty in recording the dying declaration and the doctor’s ignorance of medico-legal jurisprudence is apparent from the material placed before us. My attention has been drawn to various judgments, which have addressed the aspects of dereliction of duty by the doctors and importance of medico-legal aspect in medical jurisprudence [refer State of Gujarat v. Hasmukh @ Bhikha Gova Harijan, (1996) 1 Guj LR 292, 114 Muniammal v. Supt. of Police, 2008 SCC OnLine Mad 1251 and Indrajit Khandekar v. Union of India and Ors., 2014 SCC OnLine Bom 4810]. It has to be remembered that every stakeholder in this criminal justice system is expected to act with a sense of fairness to bring out the truth so that punishment can be meted out to those who deserve. Although courts are provided with the duty to dispense justice, it cannot be denied that effective dispensation of justice by the courts in this country requires support of all the stakeholders. In light of the above, every stakeholder is expected to be aware of their responsibility and work towards achieving ends of the criminal justice system.

34. The last aspect is regarding the defective investigation and prosecution. If a negligent investigation or omissions or lapses, due to perfunctory investigation, are not effectively rectified, the faith and confidence of the people in the law enforcing agency would be shaken. Therefore the police have to demonstrate utmost diligence, seriousness and promptness. [refer Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517].

35. The basic requirement that a trial must be fair is crucial for any civilized criminal justice system. It is essential in a society which recognizes human rights and is based on values such as freedoms, the rule of law, democracy and openness. The whole purpose of the trial is to convict the guilty and at the same time to protect the innocent. In this process courts should always be in search of the truth and should come to the conclusion, based on the facts and circumstances of each case, without defeating the very purpose of justice.” 115

95. In the case at hand, the deceased Rajendra

Rai gave his statement in the form of Bayan

Tahriri and narrated the entire incident and

circumstances of the transaction which

resulted in his death. Subsequently, he died

on account of injuries suffered by him in the

incident in question. This fact is not in

dispute and hence, following the above case

laws, the FIR lodged on the basis of Bayan

Tahrir of injured Rajendra Rai is liable to be

treated as a dying declaration, which itself is a

substantive piece of evidence and is

admissible under Section 32(1) of the

Evidence Act.

96. In the present case, the FIR, being a public

document and a dying declaration of the

informant, is the foundation of the entire 116 prosecution case. However, in the present

matter, we have to find out the ‘evidence of

those persons who can vouchsafe for the truth

of the facts in issue’. As held in Narmada

Devi Gupta (supra), to ensure the reliability of

the contents of the FIR/dying declaration, for

which along with the inference drawn by us

against the subsequent conduct of accused-

respondent no.2 and the aspect of deplorable

functioning of the Public Prosecutor, Police

Administration and the Presiding Officer of

the Trial Court to extend undesirable favour

to the accused, the only incriminating

evidence is the testimony of Smt Lalmuni Devi

(CW-1), which aspect is being dealt with

hereinafter.

117 Issue (D) : Testimony of CW-1:

97. In the present case, besides the FIR/Bayan

Tahriri, which is in the form of dying

declaration, the testimony of CW-1 Lalmuni

Devi is another incriminating evidence against

the accused persons. CW-1 Lalmuni Devi’s

statement was recorded during the

investigation on 29.08.1995 and during Trial

she was not produced as Prosecution Witness

but was summoned by the Trial Court as

Court’s Witness (CW-1) and her first

statement was recorded on 03.11.2006, which

was scrapped by the Division Bench of High

Court by means of one of the various

directions issued in the Habeas Corpus

judgment dated 13.03.2007 in view of a

serious allegation of her kidnapping by the

accused side on 24.10.2006 i.e., just before 118 her examination in the Trial Court and the

High Court directed that she will be

reexamined afresh before the Trial Court at

Patna under Section 311 of the CrPC.

Subsequently, CW-1 was examined by the

Trial Court when she had deposed about the

incident in question and supported the

prosecution’s version narrated in the FIR.

98. The High Court, in its impugned judgement,

concluded that CW-1 Lalmuni Devi is not a

hearsay witness, as held by the Trial Court,

but is a tutored witness in view of her last two

lines in cross-examination. Any other

prosecution witness of fact does not

corroborate the testimony of CW-1. Instead,

their testimonies are against CW-1 as no

other Prosecution Witness has stated about

her presence. The main reason assigned by 119 the High Court for such a conclusion is that

she has stated in the end of her cross-

examination that “her son (another alive son)

had asked her to take the name of accused

before the Court,”

99. The above conclusion drawn by the High

Court is unacceptable and suffers from a

serious error of law and also an error of fact.

The High Court has completely failed to take

up the merit of the case in its right

perspective and failed to take note of the

sensitivity attached to the case.

100. The High Court ought to have considered the

fact that on account of the complete failure of

state machinery, it was the institution of

justice which had taken the task in its hand,

firstly, by means of a Habeas Corpus Petition

and secondly, by means of Suo Moto Revision 120 under Section 401 of CrPC having the

foundation of inspecting notes of the

Inspecting Judge of the District Judgeship

and the resolution of Standing Committee of

High Court. The minutes of the Standing

Committee and the report of the Inspecting

Judge, Justice Navin Sinha dated 04.05.2009

were on record of the High Court but it chose

to completely ignore the same.

101. The High Court ought to have considered the

checkered history of events that occurred in

the case, resulting in the judgement of the

Division Bench of the High Court in the

Habeas Corpus Petition containing serious

observations about the conduct of all the

stakeholders of the said criminal trial and also

the impact of the report of the Inspecting

Judge dated 04.05.2009.

121

102. CW-1 was an old lady and mother of the

deceased Rajendra Rai and the eye-witness of

the incident, whose first examination was

scrapped by the High Court on the allegation

of her kidnapping just a few days before that

first examination dated 03.11.2006. She was

under continuous threat and fear of facing

dire consequence, which is apparent on the

face of the record. Under these circumstances,

in case she had stated in the end of her cross-

examination that her son had asked her to

take the name of the accused before the Trial

Court, there is nothing so contradictory or

surprising so as to treat the rest of the

substantive ocular evidence as tutored one. In

this regard, it is interesting to note that in the

impugned judgment, the High Court itself

observed that although CW-1 was not named 122 in the chargesheet, but Pirbahor Police

Station recorded her statement while she was

attending to her injured son in PMHC, which

is sufficient to indicate that her statement was

recorded during the investigation.

103. There is no serious discrepancy or variation in

the testimony of CW-1 with regard to the

sequence of events that occurred during the

incident in question. A witness, like the CW-1

of the present case, cannot be expected to

possess a photographic memory and to recall

the details of an incident. The variations of

trivial nature in her testimony are liable to be

ignored. The very sentence uttered by her at

the end of her examination that “her son had

asked her to take the name of the accused

before the Court” is not so surprising in a case

like the present one. When the entire family of 123 CW-1 was facing so many storms, it is quite

natural for a son to say to her mother (who

was old, illiterate, rustic woman having faced

immense trauma) that she should not forget

to disclose the name of accused persons, in as

much as the second occasion of her

examination, as ordered by the Division

Bench of High Court under Section 311 of

CrPC, was the last opportunity for her to

speak the truth before the Trial Court.

104. We do not find anything unusual in the

statement of CW-1, and her ocular evidence

appears to be trustworthy and corroborates

the dying declaration of her son Rajendra Rai.

This conclusion of ours is guided by the basic

and well-settled principles of appreciation of

evidence, which this Court in the case of Balu

Sudam Khalde and Another vs. State of 124 Maharashtra17, has summarized as principles

of appreciation of ocular evidence in a

criminal case, which we can usefully

reproduce hereinafter:

“APPRECIATION OF ORAL EVIDENCE

Para 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight- jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

I. “I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to

17 2023 SCC OnLine SC 355

125 the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental 126 faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or 127 being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.” [See Bharwada Bhoginbhai Hirjibhai v.

State of Gujarat, 1983 Cri LJ 1096 : ((1983) 3 SCC 217 : AIR 1983 SC 753) Leela Ram v. State of Haryana, (1999) 9 SCC 525 : AIR 1999 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]

105. In the totality of the Case, this Court finds

that the testimony of CW-1, Lalmuni Devi

(mother of deceased Rajendra Rai),

corroborates the same and makes it reliable.

The narration about the incident’s time, place

and manner, the specific role attributed to the

accused persons, etc, as described by Lalmuni

Devi (CW-1), conforms with the contents of

128 the FIR/Bayan Tahriri.

106. This Court is conscious of the fact that a path

different from the normal is being adopted to

determine the guilt of the accused. The Court

is compelled to do so in the glaringly peculiar

facts of the present case which have been

elaborately discussed in the preceding

paragraphs.

107. We have noticed that the three main stake

holders in a criminal trial, namely the

Investigating Officer that is the part of the

police of the State of Bihar, the Public

Prosecutor, and the Judiciary, have all utterly

failed to keep up their respective duties and

responsibilities cast upon them. This Court

time and again has commented upon the

failure of the major stakeholders in the

criminal delivery system.

129

108. In the case of State of Haryana and Ors. vs.

Ch. Bhajan Lal and Ors18., this Court had

commented on the conduct of the Police

Officer. The following extract from the said

judgment is reproduced hereunder:

“Human dignity is a dear value of our Constitution. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution.”

109. Insofar as the Public Prosecutors are

concerned, a lot of comments have been

made, not only by this Court but also by the

Law Commission, highlighting the role and

importance of a Public Prosecutor. We may

18 AIR 1992 SC 604

130 quote with profit the role of the Prosecutors as

stated in the 197th Law Commission of India

Report on Public Prosecutors’

Appointments (2006):

“The Prosecutor has a duty to the state, to the accused and the Court. The Prosecutor is all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, not should any prosecutor even feel pride or satisfaction in the mere fact of success.”

In 154th Law Commission of India Report it

was reported as follows:

“Prosecutors are the ministers of Justice whose job is none other than assisting the State in the administration of Justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are also not there to see the culprits escape conviction.”

110. This Court in the case of Zahira Habibulla H.

Sheikh v. State of Gujarat19, had

commented as follows with respect to the

19 (2004) 4 SCC 158

131 conduct of fair trial:

“Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.” ***

“Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage- managed, tailored and partisan trial.” ***

“Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clout and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties. Broader public and 132 societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness.” *** “A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse.”

111. The Trial Court and the High Court miserably

failed to notice the sensitivity and intricacies

of the case. Both the Courts completely shut

their eyes to the manner of the investigation,

the Prosecutor’s role, and the high-

handedness of the accused as also the

conduct of the Presiding Officer of the Trial

133 Court, despite observations and findings

having been recorded not only by the

Administrative Judge but also by the Division

Bench deciding Habeas Corpus petition. They

continued with their classical rut of dealing

with the evidence in a manner as if it was a

normal trial. They failed to notice the conduct

of the Public Prosecutor in not even examining

the formal witnesses and also that the Public

Prosecutor was acting to the advantage of the

accused rather than prosecuting the accused

with due diligence and honesty. The Presiding

Officer of the Trial Court acquitting the

accused as also the learned Judge of the High

Court dismissing the revision, were both well-

aware of the facts, legal procedures, as well as

the law regarding appreciation of evidence in a

criminal case. Both the courts below ignored 134 the administrative reports as also the

judgment of the High Court in the Habeas

Corpus petition. In fact they should have

taken judicial notice of the same. They

completely failed to take into consideration

the conduct of the accused subsequent to the

incident, which was extremely relevant and

material in view of Section 8 of the Evidence

Act. They failed to draw any adverse inference

against the accused with respect to their guilt.

112. Section 311 CrPC confers wide powers on any

court at any stage of any inquiry, trial or other

proceeding under this Code to summon

material witness or examine person present.

Such person may not be a person summoned

as a witness. Power to recall and re-examine

is also vested. The concept is that it should

be essential for the just decision of the case. 135 The said section is reproduced hereunder:

“Section 311 in The Code Of Criminal Procedure, 1973

311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined;

and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.”

This power can be exercised not only by the Trial

Court but also by the appellate Court or

revisional Court. The logic behind this provision

is that the endeavour of the Courts is to find out

the truth which would be essential for the just

decision of the case. Additionally, Sections 367

and 391 CrPC confers powers on the High Court

dealing with death reference and appellate

Courts to take additional evidence. The said

sections are reproduced hereunder: 136

“Section 367 in The Code of Criminal Procedure, 1973

367. Power to direct further inquiry to be made or additional evidence to be taken.

(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.

(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.

(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court.”

“Section 391 in The Code Of Criminal Procedure, 1973

391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.” 137 Even otherwise under general principles of law

and procedure appellate Courts can exercise all

powers vested in the Trial Court in an attempt to

arrive at a just and fair decision.

113. In the present case, unfortunately the Trial

Court as well as the High Court failed to

exercise their powers under the aforesaid

provisions to summon the witnesses of the

charge-sheet to prove the police papers.

Despite applications being filed to summon

persons who were not shown as witnesses to

the charge-sheet, the Trial Court repeatedly

rejected the said applications in 2006 and

again in 2008 on the flimsy grounds that were

not named in the charge-sheet or that the

Public Prosecutor had not filed such

application in gross violation of Section 311

CrPC.

138

114. In the above backdrop of facts and the legal

position, the conclusions based on analysis of

the evidence in the light of the legal position is

as follows:

a) Fard Bayan of Rajendra Rai, which was later

converted into an FIR, is admissible in

evidence and is to be read as a dying

declaration or his last statement.

b) The tainted investigation shows the high-

handedness of the accused-Respondent no.2,

who was a powerful person, being a sitting

M.P. of the Ruling Party.

c) The prosecution had established, even

through the hostile witnesses, that the date,

time, and place of incidence as given in the

Fard Bayan of Rajendra Rai were fully

established. The only issue was with regard to 139 the identity of the assailants.

d) The post-mortem reports, show that the death

of Rajendra Rai and Daroga Rai was homicidal

in nature. The medico legal reports supported

the prosecution’s story to the extent that the

injuries were caused by a fire arm, which

proved fatal for two out of the three injured.

e) Adverse inference against the accused is

drawn in view of their subsequent conduct.

f) Judicial notice is taken of the judgment in the

Habeas Corpus petition dated 13.07.2007

regarding the conduct of the accused, the

investigating agency, the Public Prosecutor

and the Presiding Officer conducting the trial.

g) The two administrative reports of the

respective judges, who were constitutional

functionaries, also have to be given due

credence and cannot be ignored outright 140 regarding the conduct of the accused, public

prosecutor and the Presiding Officer

conducting the Trial.

h) The statement of CW-1 is found to be reliable,

and the Courts below wrongly discarded it on

the ground that it was hearsay and tutored.

i) The dying declaration and the statement of

CW-1 fully establish that it was Prabhunath

Singh, who had caused the injuries from his

firearm weapon, which proved to be fatal for

two out of the three injured and also caused

injury to the third surviving injured, namely

Smt. Devi.

j) Prabhunath Singh (accused no.1) is thus

liable to be convicted under Sections 302 and

307 IPC for committing culpable homicide

amounting to murder and attempt to murder.

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k) The rest of the accused, although named in

the chargesheet after due investigation, since

their names were not reflected either in the

Fard Bayan of the deceased Rajendra Rai

(dying declaration) or in the statement of CW-

1, therefore, their acquittal is not disturbed.

115. Accused-respondent no.2 is thus convicted

under Sections 302 and 307 IPC for the

murders of Daroga Rai and Rajendra Rai and

also for attempt to murder of injured Smt.

Devi.

116. The Secretary, Department of Home, State of

Bihar and the Director General of Police,

Bihar are directed to ensure that Prabhunath

Singh (Respondent No. 2) is taken into

custody forthwith and produced before this

Court to be heard on the question of sentence

in view of Section 235 CrPC.

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117. Let the matter be listed again on 1st

September, 2023. On the said date, accused

Prabhunath Singh (respondent no. 2) be

produced before this Court in custody for the

aforesaid purpose.

…………..........................J. [SANJAY KISHAN KAUL]

………….........................J. [ABHAY S. OKA]

………….........................J. [VIKRAM NATH] New Delhi August 18, 2023

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