TMI Blog2023 (8) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was passed on the basis of notes of the Inspecting Judge of the High Court, the report of 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. The judgment 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 issued in its judgment dated 13.03.2007 to the extent of the subsequent conduct of the Accused, deplorable functioning of the Public Prosecutor, Police Administration and the Presidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence against such Accused, especially in view of the checkered and abnormal history of the case? - HELD THAT:- 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 the FIR/Bayan Tahriri - 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 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 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitting Member of Parliament at the relevant time as he had mustered full support of the Administration and the Investigating Agency; he had 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 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. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 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. It was only after 11 years that charges could be framed by the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain 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. 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 judgment 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: On coming to learn, through some newspaper report about the fracas created in the Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2006 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Code of Criminal Procedure were not free and voluntary but under duress and intimidation. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Magistrate at the Judges' Guest Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpur 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... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavits 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 Indian Penal Code 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 Indian Penal Code 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; 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 Ya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra 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. 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 Publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. 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 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 v. 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 Code of Criminal Procedure. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Code of Criminal Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee that Criminal Revision No. 1345 of 2009 was registered with cause title as The State of Bihar v. Prabhunath Singh and Ors . The Learned Single Judge dismissed the said criminal revision, vide impugned judgment 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 Code of Criminal Procedure. 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 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the Special Public Prosecutor as per directions of the High Court. 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), Code of Criminal Procedure. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal against acquittal, can consider the High Court's judgment 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 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 che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cit 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, Chandigarh (2015) 8 SCC 86, 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 Ors. (2011) 1 SCC 503, this Court was dealing with an appeal filed Under Section 116A of the Represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas Corpus Petition was passed on the basis of notes of the Inspecting Judge of the High Court, the report of 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 judgment, 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 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 judgment dated 13.03.2007, which is a pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Anant Chintaman Lagu v. State of Bombay AIR 1960 SC 500, 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 judgment 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 motive of the Appellant would be very clear indeed... *** These arguments, however, are of no avail, in view of the Appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act. c) In the case of Shyam Lal v. State of U.P. and Ors. 1998 Crl LJ 2879, 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 through Mr. Ajay Chaudhary v. State 2011 CrlLJ 1347, 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 v. State of Chhattisgarh through Secretary, Department of Home Affairs (Police) and Ors. 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 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 wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 judgment 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 976) 3 SCC 104, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment of this Court in the case of Suresh Chandra Jana v. State of West Bengal and Ors., (2017) 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; Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the truth and should come to the conclusion, based on the facts and circumstances of each case, without defeating the very purpose of justice. 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 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 Under Section 401 of Code of Criminal Procedure 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 judgment 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. 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE 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 the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately 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 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 Tahsil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Gujarat (2004) 4 SCC 158, had commented as follows with respect to the 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as also the conduct of the Presiding Officer of the Trial 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jury 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 Indian Penal Code for committing culpable homicide amounting to murder and attempt to murder. 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 Indian Penal Code 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 Code of Criminal Procedure. 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 custod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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