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TMI Blog2023 (8) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Court on 26.03.2006 against all the Accused for offences under various Sections of Indian Penal Code 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 applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wspapers 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 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. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Code of Criminal Procedure before the Magistrate at Chapra. In the said st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. At this stage also the Advocate General reiterated that nothing further survives in the 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 conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, 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. Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 307 Indian Penal Code 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 various authorities and Courts of its perusal. It also bears the endorsement that Section 302 Indian Penal Code 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 Code of Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 arm injuries; that they were returning along with the injured after casting their votes; that Police did not record their statements. 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries, 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution. 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 Code of Criminal Procedure. On 15.10.2008 examination of the Accused Under Section 313 Code of Criminal Procedure was recorded. The defence also filed a certified copy of the statement of Lalmuni Devi recorded Under Section 164 Code of Criminal Procedure by Shri Sampat Kumar, Judicial Magistrate, Chapra on 06.11.2006 in connection with the abduction case in Panap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 (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 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 Code of Criminal Procedure. 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 Section 161 Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 and the contention that his report could be admitted Under Section 294 of Code of Criminal Procedure, 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) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion? 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 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 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 impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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): C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 to mind of any prudent person that his guilty mind was fearful about the result. All these aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 Code of Criminal Procedure, failed to set the record straight by exercising the appellate powers given Under Sections 386, 389, 390 and 391 Code of Criminal Procedure, as provided Under Section 401(1) of Code of Criminal Procedure. 80. Now in this background, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 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 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 judgment of this Court in the case of Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517, 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, Muniammal v. Supt. of Police, and Indrajit Khandeka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 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 incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 U.P. 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 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 responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure. 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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