Supreme Court of India
HARENDRA RAIversusTHE STATE OF BIHAR & ORS.
- Citation
- 2023 INSC 738
- Decided
- 18 August 2023
- Bench
- SANJAY KISHAN KAUL
Holding
The Supreme Court held that the High Court's Habeas Corpus judgment may be judicially noticed, the accused's subsequent conduct is admissible under Section 8, the FIR/Bayan Tahriri is a dying declaration admissible under Section 32, and the mother’s testimony is reliable, leading to conviction of Prabhunath Singh.
Summary
The case involves a double murder in which accused Prabhunath Singh, a sitting MP, was originally acquitted along with other co‑accused. The Supreme Court, on appeal, took judicial notice of the Patna High Court's Habeas Corpus judgment, treating it as a public document, and considered the accused's subsequent conduct under Section 8 of the Evidence Act. It held that the FIR and the injured victim's Bayan Tahriri constitute a dying declaration admissible under Section 32, and that the testimony of the victim's mother, despite claims of tutelage, is reliable. Consequently, the Court set aside the acquittal, convicted Prabhunath Singh under Sections 302 and 307 IPC, and ordered his custody for sentencing, while leaving the other accused acquitted.
Issues considered
- Whether the Supreme Court can consider the High Court's Habeas Corpus judgment as a public document and take judicial notice of it in an appeal against acquittal.
- Whether the previous or subsequent conduct of the accused is admissible as evidence under Section 8 of the Evidence Act.
- Whether the FIR or Bayan Tahriri can be proved as reliable prosecution evidence and treated as a dying declaration under Section 32 of the Evidence Act.
- Whether the testimony of the mother of the deceased, an elderly illiterate eyewitness, is reliable despite allegations of being tutored.
- Whether Section 311 CrPC powers can be exercised to re‑examine material witnesses in the circumstances of this case.
Legislation cited
- Arms Acts. 27
- Code of Criminal Procedure, 1973s. 311, s. 367, s. 386, s. 389, s. 390, s. 391, s. 401
- Indian Evidence Act, 1872s. 32, s. 56, s. 57, s. 58, s. 74, s. 8
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307
Subjects
double murderjudicial noticeevidence actdying declarationFIRSection 8Section 311 CrPCwitness intimidationpolitical influenceacquittal reversalfair trial
Judgment
[2023] 11 S.C.R. 403 : 2023 INSC 738
CASE DETAILS
HARENDRA RAI
v.
THE STATE OF BIHAR & ORS.
(Criminal Appeal No. 1726 of 2015)
AUGUST 18, 2023*
[SANJAY KISHAN KAUL, ABHAY S. OKA AND
VIKRAM NATH, JJ.]
HEADNOTES
Issues for consideration: In a double murder case, wherein it was
alleged that accused no.1-respondent no.2 had opened fire from his rifle
resulting in injury to three persons, out of which two died, and the trial court
had acquitted accused-respondent nos. 2 to 8 of all the charges, which was
confirmed by the High Court in criminal revision, the issues before this
Court were:
(i) Whether the Supreme Court, in appeal against acquittal, could
consider the High Court’s judgment dated 13.03.2007 passed in a Habeas
Corpus Writ Petition (filed pursuant to abduction of CW1, mother of one
of the deceased, ten days before the date fixed for recording her statement),
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.
(ii) 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.
(iii) 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.
(iv) Whether the testimony of CW1 (an old feeble, rustic, illiterate
lady and mother of the deceased and an eyewitness of the incident), who
* Ed.Note: Subsequent judgment reported in [2023] 11 SCR 583 may also be referred to.
403
404 SUPREME COURT REPORTS [2023] 11 S.C.R.
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.
Evidence Act, 1872 – s.56 – Doctrine of judicial notice – Judicial
Notice of fact in criminal matters – Maxim “res judicata pro veritate
accipitur”.
Administration of Criminal Justice – Failure of three main
stakeholders in a criminal trial – Undesirable favour to accused – Path
different from the normal adopted to determine guilt of the accused.
Held: Doctrine of judicial notice, as provided u/s.56 of the Evidence
Act, is an exception to general rules of evidence applicable for proving any
fact by adducing evidence in the Court of law. Except in the rarest of rare
cases, judicial notice of any fact is generally not taken in criminal matters
in the normal course of proceeding. The present matter falls in the category
of rarest of rare cases. Certain inferences, observations and findings arrived
at by the Division Bench of High Court in judgment dated 13.03.2007
in the Habeas Corpus Petition, 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, 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. 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. Accordingly, judicial notice
taken by the Supreme Court 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. [Paras 66, 67 and 68]
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 405
Evidence Act, 1872 – s.8 – Subsequent conduct of accused – Adverse
inference – Maxim “qui sentit commodom, sentire debit et onus.”:
Held: In the case in hand, a double murder case, the conduct of
accused-respondent no.2 was not only relevant u/s.8 of the Evidence Act
but also one of the major circumstances to arrive at a conclusion about his
guilt. Respondent No.2 was instrumental in making all possible efforts to
wipe out the evidence against him. The tainted investigation shows the
highhandedness of the Respondent no.2, who was a powerful person, being
a sitting M.P. of the Ruling Party. The question is why the accused was
instrumental, when he was not guilty of the offence to which he was being
tried. The obvious answer would be that his guilty mind was fearful about
the result. [Paras 70, 72, 73 and 114]
Evidence Act, 1872 – s.74 – Bayan Tahriri / Written Statement of
deceased – Evidentiary value:
Held: FIR is a public document defined u/s.74 of the Evidence Act. Any
public document does not stand proven by the mere fact of its production.
At the stage of exhibiting any document as a piece of evidence, the truth
of what is stated in the document is not considered. It is left open to final
evaluation at the trial after cross-examination, and the entire testimony of
the witness about the existence and contents of the document is weighed
in conjunction with various other factors emerging during a trial. The
marking of a piece of evidence as ‘exhibit’ at the stage of evidence in a trial
proceeding is only for the purpose of identification of evidence adduced
in the trial and for the convenience of the Court and other stakeholders in
order to get a clear picture of what is being produced as evidence in a trial
proceeding. 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 flimsy rejection of application filed by a person seeking his examination
as a witness along with examination of two persons (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
no discount can be given to the accused persons for non-exhibition thereof.
[Paras 82, 83, 85, 87 and 89]
406 SUPREME COURT REPORTS [2023] 11 S.C.R.
Evidence Act, 1872 – s.32 – Treatment of FIR /Bayan Tahriri as
dying declaration:
Held: Statement by an injured person recorded as FIR can be treated as
a dying declaration and such a statement is admissible u/s.32 of the Evidence
Act. On facts, the deceased 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. FIR lodged on the basis of Bayan Tahrir
of the injured is liable to be treated as a dying declaration, which itself is a
substantive piece of evidence and is admissible u/s.32(1) of the Evidence
Act. [Paras 91 and 95]
Evidence – Ocular evidence – Testimony of deceased’s mother,
an eyewitness, who was abducted by the accused side just before her
examination in the trial court.
Held: 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. CW-1’s 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. There is no serious discrepancy
or variation in the testimony of CW-1 with regard to the sequence of events
that occurred during the incident in question. When the entire family of CW-1
was facing so many storms, it is quite natural for a son to say to her mother
(who was old, illiterate, rustic woman having faced immense trauma) that
she should not forget to disclose the name of accused persons, in as much as
the second occasion of her examination, as ordered by the Division Bench
of High Court under Section 311 of CrPC, was the last opportunity for her
to speak the truth before the Trial Court. There is nothing unusual in the
statement of CW-1. Her statement is found to be reliable, and the Courts
below wrongly discarded it on the ground that it was hearsay and tutored.
[Paras 101, 102, 103, 104 and 114]
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 407
Code of Criminal Procedure, 1973 – s.311 – Power under – Scope:
Held: s.311 CrPC confers wide powers on any court at any stage of any
inquiry, trial or other proceeding under this Code to summon material witness
or examine person present. Such person may not be a person summoned
as a witness. Power to recall and re-examine is also vested. The concept is
that it should be essential for the just decision of the case. This power can
be exercised not only by the Trial Court but also by the appellate Court or
revisional Court. The logic behind this provision is that the endeavour of the
Courts is to find out the truth which would be essential for the just decision
of the case. [Para 112]
Penal Code, 1860 – ss.302 and 307 – Double murder – Due to
injuries caused by fire arm – Appeal against acquittal.
Held: On facts, the post-mortem reports, show that the deaths were
homicidal in nature. The medico legal reports supported the prosecution’s
story to the extent that the injuries were caused by a fire arm, which proved
fatal for two out of the three injured. Fard Bayan registered on oral statement
given by one of the injured (who died subsequently), which was later
converted into an FIR, was admissible in evidence and is to be read as a
dying declaration or his last statement. The prosecution had established, even
through the hostile witnesses, that the date, time, and place of incidence as
given in the Fard Bayan were fully established. Adverse inference against
the accused is drawn in view of their subsequent conduct. Judicial notice is
taken of judgment in the Habeas Corpus petition dated 13.07.2007 regarding
the conduct of the accused, the investigating agency, the Public Prosecutor
and the Presiding Officer conducting the trial. Statement of CW-1 is found
to be reliable, and the Courts below wrongly discarded it on the ground
that it was hearsay and tutored. The dying declaration and the statement of
CW-1 fully establish that it was Respondent No.2 (accused no.1), who had
caused the injuries from his firearm weapon, which proved to be fatal for
two out of the three injured and also caused injury to the third surviving
injured. Respondent no.2 thus liable to be convicted under ss.302 and 307
IPC. 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 (dying declaration) or in the statement of CW1, therefore,
their acquittal is not disturbed. [Para 114]
408 SUPREME COURT REPORTS [2023] 11 S.C.R.
LIST OF CITATIONS AND OTHER REFERENCES
Arbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. (2003) 8 SCC
745 : [2003] 5 Suppl. SCR 90; Ram Bihari Yadav v. State of Bihar & Ors
(1998) 4 SCC 517 : [1998] 2 SCR 109 and Balu Sudam Khalde and Another
v. State of Maharashtra 2023 SCC OnLine SC 355 – relied on.
Channappa Andanappa Siddareddy and others v. State 1980 Crl LJ
1022; Jayantibhai Lalubhai Patel v. State of Gujrat 1992 CRl LJ 2377;
Shyam Lal v. State of U.P. and Ors 1998 Crl LJ 2879; Court on its Own
Motion through Mr. Ajay Chaudhary v. State 2011 CrlLJ 1347 and Narendra
Rajput v. State of Chhattisgarh through Secretary, Department of Home
Affairs (Police) and Others 2019 SCC Online Chh 16 – approved.
Harendra Rai v. State of Bihar and Others [Decision dated 13-03-2007
of Patna High Court in Cr.WJC No. 717 of 2006] – referred to.
State of Kerala v. Unni (2007) 2 SCC 365 : [2006] 9 Suppl. SCR
931; Prabhakara v. Basavaraj K. (2022) 1 SCC 115; Ved Mitter Gill v. UT,
Chandigarh (2015) 8 SCC 86 : [2015] 5 SCR 73; Joseph M Puthussery v. T.S.
Jhon and others (2011) 1 SCC 503 : [2010] 14 SCR 427; Anant Chintaman
Lagu v. State of Bombay AIR 1960 SC 500 : [1960] 2 SCR 460; Munnu Raja
and another v. State of M.P. (1976) 3 SCC 104 : [1976] 2 SCR 764; Suresh
Chandra Jana v. State of West Bengal and Ors. (2017) 16 SCC 466 : [2017]
13 SCR 1; State of Haryana and Ors. v. Ch. Bhajan Lal and Ors AIR 1992
SC 604 : [1990] 3 Suppl. SCR 259 and Zahira Habibulla H. Sheikh v. State
of Gujarat (2004) 4 SCC 158 : [2004] 3 SCR 1050 – referred to.
197th Law Commission of India Report on Public Prosecutors’
Appointments (2006) and 154th Law Commission of India Report – referred
to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1726 of 2015.
From the Judgment and Order dated 02.12.2011 of the High Court of
Judicature at Patna in CRRP No. 1345 of 2009.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 409
Appearances:
Abhay Kumar, Rajat Khattry, Shagun Ruhil, Ms. Neetu Jain, Advs.
for the Appellant.
R. Basant, Sr. Adv., Neeraj Shekhar, Sunny Choudhary, Manoj Kumar,
Devashish Bharuka, Ms. Sarvshree, Ms. Nishi Kashyap, Advs. for the
Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
VIKRAM NATH, J.
1. Everything was going as per the plan and wish of the main accused
Prabhunath Singh, a political leader and a sitting Member of Parliament at
the relevant time as he had mustered full support of the Administration 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. 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.
410 SUPREME COURT REPORTS [2023] 11 S.C.R.
3. FIR was registered on 25.03.1995 at the Police Station Masrakh
(Panapur) District Saran at Chapra, Bihar as Case No. 62 of 1995 under
Sections 147, 148, 149/307 of Indian Penal Code, 18601 and Section 27 of the
Arms Act. Later on, Section 302 IPC was added as two out of three injured
died during treatment. The said FIR was registered based on the statement
of one of the injured Rajendra Rai at about 10AM, who subsequently
succumbed to injuries. The statement was recorded at the corridor of Camp
Rajkiya Hospital, Panapur by Sub-Inspector N.N. Thakur of Police Station,
Panapur in the presence of two other injured namely Daroga Rai and Smt.
Devi and also before two other persons namely Narendar Singh and Sanjeev
Kumar Singh who had signed as witnesses in the FIR.
4. The prosecution version, as recorded in the FIR in the statement
of Rajendra Rai, narrated that the informant along with eight-nine other
persons of his village was returning after casting their vote in the election on
25.03.1995 at around 9AM; when they reached south east of his residence,
five persons came in a car armed with rifles and guns and stopped the car;
Prabhunath Singh (accused no.1), who was the contesting candidate for
Bihar People’s Party (BPP), while sitting in the car enquired as to whom
all of them had cast their votes; the informant answered that they had cast
their votes in favour of Janta Dal Party having symbol of Chakrachap; on
hearing this, the car moved towards south and stopped at a little distance;
Prabhunath Singh (accused no.1) opened fire from his rifle pointing towards
the informant and others and thereafter the car sped away. As a result of the
firing, three persons got injured.
5. On the basis of the FIR, investigation was taken up. Inspection
was made of the spot of occurrence. Three used cartridges were recovered
from the place of occurrence, they were sealed and a recovery memo was
prepared. The Investigating Officer recorded the statement of the witnesses.
The injured were provided medical treatment, the doctor prepared the injury
report and after two of the injured expired, the post-mortem reports of the
two deceased persons were also prepared. Daroga Rai died soon after the
incident and his post-mortem was conducted on 26.03.1995. Rajendra
Rai died after about five months on 21.08.1995 and his post-mortem was
conducted on 22.08.1995.
1 In short, “IPC”
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 411
[VIKRAM NATH, J.]
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
Court on 26.03.2006 against all the accused for offences under various
Sections of IPC as stated above. The prosecution examined 11 witnesses.
It would be relevant to note that out of these 11 witnesses, PW-1 to PW-7
were examined on a single day i.e. 27.06.2006. The statement of all these
seven witnesses were more or less similar to the effect that they saw the
incident of firing but did not see who killed the two deceased. All seven
witnesses were declared hostile by the Prosecution. PW-8 to PW-10 (three
witnesses) were examined on 10.08.2006.
8. In the meantime, on an application under Section 311 of the
Code of Criminal Procedure, 19732, the Trial Court, vide order dated
23.10.2006,summoned Lalmuni Devi (CW-1), mother of deceased (Rajendra
Rai) as court witnessand03.11.2006 was fixed for recording her statement.
On 24.10.2006, Lalmuni Devi (CW-1) and her husband were abducted from
their residence by none other than the brother of Prabhunath Singh (accused
no.1) and his associates. The appellant (son of CW-1) made a complaint to the
local police and when no action was taken, he approached the Superintendent
of Police of District Saran and also the Director General of Police and the
State Home Secretary which also went unattended. This resulted into filing
a petition seeking a writ of Habeas Corpus before the Patna High Court.
9. The said Habeas Corpus Petition was registered as Cr.WJC No. 717
of 2006, Harendra Rai Versus State of Biharand Others.
10. The said Habeas Corpus Petition was decided by the Division
Bench of the Patna High Court vide the detailed judgment dated 13.03.2007.
2 CrPC
412 SUPREME COURT REPORTS [2023] 11 S.C.R.
The Division Bench issued certain directions with respect to the trial in
question. The said judgement would be dealt with in detail at a later stage.
11. Pursuant to the direction issued vide judgment dated 13.03.2007,
the trial proceeded but again in a most shabby manner, not even complying
with the directions of the High Court. The Special Public Prosecutor for
the State, instead of getting the witnesses examined before the Court, filed
affidavits on their behalf reiterating their earlier statements. Only two
witnesses were re-examined namely PW-1 and PW-10. With respect to PW-
2, PW-4 to PW-7, affidavits were filed stating that they had nothing further
to add and they reiterated their deposition given earlier. Shrimati Lalmuni
Devi (CW-1) was again examined and cross-examined on 29.09.2008 where
she fully supported the prosecution story. Prosecution evidence was closed
on 29.09.2008. The Trial Court, vide judgment dated 24.10.2008, acquitted
all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470
of 2007. There was no challenge to the judgment of acquittal by the State.
12. During the trial, on the date of the statement of CW-1 i.e.
03.11.2006, there was some altercation in the Trial Court where the lawyers
and pairokar of the accused, assaulted the family members of CW-1 inside
the Courtroom. This was reported in the newspapers inviting attention
of the Inspecting Judge. The Inspecting Judge set up an inquiry in which
he collected evidence and recorded statements. Based upon the same,
he gave a detailed report dated 21.02.2007 criticizing the conduct of the
Presiding Officer of the Trial Court. The judgement in the Habeas Corpus
petition incorporates the findings of the Inspecting Judge in the report dated
21.02.2007. Relevant extract from the judgment in the Habeas Corpus
petition is reproduced hereunder:
“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
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 413
[VIKRAM NATH, J.]
to Bhagalpur. After taking into account the reports submitted by the
District and Session Judge, the 7th Additional Sessions Judge, the
Public Prosecutor, statements of witnesses and the report of Dr. D.N.
Gautam to whom he entrusted the enquiry, the Hon’ble Judge, in his
report, found and held as follows.
“I do not have the slightest hesitation in endorsing the reports of
the District and Sessions Judge, Bhagalpur as also the Additional
Director General of Police that the witness Lalmuni Devi was not
produced under proper security. She was frightened and under
heavy stress prior to her examination. She was intimidated inside
the Court room prior to her examination. She was not normal
and the Court atmosphere was highly tensed and abnormal. The
materials on record led him to conclude that evidence of Lalmuni
Devi cannot be said to have been voluntarily made.
I am of the considered opinion that had the Presiding Officer
of the Court exercised little discretion, this untoward incident
ought not have taken place. The Presiding Officer of the Court
having found that the witness was not looking normal and, in
fact, looking frightened and having not been produced under
proper security, he ought to have taken these facts seriously and
prevented deflecting the Court of Justice.
The direction of this Court to record evidence cannot be construed
to mean that the Court was obliged to record her statement despite
the fact that she was produced without proper security. I am of
the opinion that the Presiding Officer of the Court had also failed
miserably in the matter.”
13. The proceedings of the Habeas Corpus petition also need to be
appropriately referred to. After the incident of abduction of Lalmuni Devi
(CW-1) on 24.10.2006, the Habeas Corpus petition was filed on 31.10.2006
and was taken up by the Court on 01.11.2006. On the said date, it was
adjourned on the request made by the Advocate General. On 02.11.2006,
the Advocate General stated before the Court that, on receiving report of
abduction of Lalmuni Devi and Rama Rai, 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.
414 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 Rai. It was further provided by the
Division Bench that in the meantime if Lalmuni Devi appears before the
Trial Court on 03.11.2006, the Court may proceed with the case but if she
failed to appear on the said date, the prosecution case should not be closed
till further orders by the Court.
14. On 08.11.2006, it was reported that the statement of Lalmuni
Devi was recorded on the date fixed i.e. 03.11.2006. Thereafter she was
taken from Bhagalpur to Chapra from where she had been abducted and
her statement was recorded under Section 164 CrPC before the Magistrate
at Chapra. In the said statement, she stated that she was not abducted by
anyone. The said statement was filed before the High Court along with the
counter affidavits. On the above submissions, the Advocate General stated
that the petition had become infructuous.
15. The Division Bench was further informed that on 03.11.2006, the
deposition of Lalmuni Devi was not normal and smooth. Her appearance
had led to a clash between two groups of people although the said incident
was not reported by the Trial Judge. However, it had attracted the attention
of the Inspecting Judge, Bhagalpur through newspaper reports and based
on the same he called for reports and directed for enquiry. The final report
dated 21.02.2007 given by the Inspecting Judge has already been referred
to above.
16. On behalf of the writ petitioner before the High Court, it was
submitted that their parents were not made free and they were still under the
clutches and remote control of the accused. The Division Bench, therefore,
did not close the proceedings of the case and adjourned the matter awaiting
the result of the enquiry by Justice C.K. Prasad, as he was the Inspecting
Judge.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 415
[VIKRAM NATH, J.]
17. The Division Bench further records that in the meantime two
complaints were filed regarding the abduction of Lalmuni Devi and her
husband; one was filed by their daughter in law Girija Devi at Panapur
Police Station registered as Case No. 81 of 2006 and the other was lodged
at Masrakh Police Station Dist. Saran registered as Case No.129 of 2006
at the instance of one Shankar Rai. Later on Shankar Rai retracted and
had filed a written note stating that he had filed the complaint under some
misunderstanding. The said Shankar Rai was one of the persons from the side
of the abductees accompanying Lalmuni Devi at the time of her appearance
before the Trial Court on 03.11.2006. The Division Bench directed that both
these complaints be thoroughly investigated and the reports of investigation
be submitted under the signature of the Deputy Inspector General of Police,
Saran range.
18. On 17.11.2006, Lalmuni Devi appeared before the Division Bench
and filed an affidavit duly sworn in by her. In the said affidavit, it was stated
that she and her husband Rama Rai were abducted by the men of Prabhunath
Singh and were under their complete control all along. She appeared before
the Court and gave oral statement before the Division Bench. The Court has
recorded that she was an old and rustic village woman and seemed to be
under stress and looked quite vulnerable. She spoke only Bhojpuri in which
one of the members of the Division Bench Justice S.P. Singh was fluent.
She stated before the Court that she and her husband were in fact abducted
by the men of Prabhunath Singh. They had used force against her and had
threatened her. Both her statements before the Trial Court on 03.11.2006
and her statement under Section 164 CrPC were not free and voluntary but
under duress and intimidation.
19. At this stage also the Advocate General reiterated that nothing
further survives in the matter with regard to the abduction. However, the
Division Bench declined to close the proceedings noting that it was evident
that lurking behind the surface, were much larger and far better issues than
the alleged abduction of two old villagers. The Registrar General of the
High Court was given direction for making arrangements of stay of Lalmuni
Devi at the Judges’ Guest House at Patna so that she was isolated from any
influence and that her statement was to be recorded at the Guest House on
20.11.2006 by a Magistrate. The conduct of the Police was also noticed
by the Division Bench that they were not willing to see the reality and
416 SUPREME COURT REPORTS [2023] 11 S.C.R.
continued to work under the influence of Prabhunath Singh. The Division
Bench directed the Additional Director General of Police Dr. D.N. Gautam
to supervise the proceedings.
20. On 20.11.2006, the statement of Lalmuni Devi was recorded in
writing as also a video cassette by the Magistrate was prepared of the same
and submitted in a sealed cover. The Advocated General on 05.12.2006
submitted the interim report by Dr. Gautam. He had severely criticized the
supervision report and described it as one of the shallowest of the shallow
pieces of investigation. It was then that the Court directed the investigation
of two cases would be made under the overall charge of Dr. Gautam.
21. On 24.01.2007, the Advocate General submitted the report
by Dr. Gautam. In the meantime, report of the Inspecting Judge dated
21.02.2007 was also received by the Division Bench. The orders passed
on 08.11.2006, 17.11.2006 and 05.12.2006 were challenged before this
Court by way of Special Leave Petition (Criminal) Nos. 187, 377 and 378
of 2007 respectively. All the SLPs were dismissed by some observations
by a common order dated 15.01.2007.
22. The Division Bench had three materials before it namely affidavit
of Lalmuni Devi, her statement recorded by the Magistrate on 20.11.2006,
the reports of Dr. Gautam, Additional Director General of Police dated
30.11.2006, 16.12.2006 and 22.01.2007 and the enquiry report by Justice
C.K. Prasad, the Inspecting Judge, Bhagalpur dated 21.02.2007.
23. The Division Bench proceeded to record in detail the version of
Lalmuni Devi as to how she had been abducted along with her husband by
Dina Nath Singh (brother of Prabhunath Singh) and Chotelal, MLA from
Parsa. She had stated in detail as to what all places they had been taken to
and how they were ill-treated. She also described that Prabhunath Singh, his
security guard, the Mukhiya and Shankar told her to change her statement
and if she would not do the same, then Prabhunath Singh would kill her other
son (Harendra Rai) as well. She also described how she was taken to Court
room where the incident took place in which the men of Prabhunath Singh
assaulted her son, daughter-in-law and son-in-law who wanted to take her
with them. The Judge was sitting in Court and in his presence her family
members were assaulted but the Judge said 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
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 417
[VIKRAM NATH, J.]
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 in his report also commented that the sequence
of events started only after the application under Section 311 CrPC was
allowed and Lalmuni Devi was called as a court witness on 03.11.2006.
24. Further, according to the report of Dr. Gautam, after abduction
of Lalmuni Devi, her son and daughter-in-law represented not only to the
officer-in-charge, Panapur Police Station but also to the Superintendent of
Police, the Director General of Police and the Home Secretary at Patna.
The Director General of Police forwarded the petition given by the son
and daughter-in-law to the Superintendent of Police, Chapra by fax for
taking necessary action on 25.10.2006. The same was communicated and
received in the office of Superintendent of Police, Chapra on the same day
but it remained unattended till 02.11.2006. It was only after the petition was
instituted on 31.10.2006 that formal notice was taken of the said petition by
the Superintendent of Police. The report further notices that from 24.10.2006
till 03.12.2006, the son of Lalmuni Devi had been running from pillar to
post between Chapra, Patna and Bhagalpur but no public authority paid
any heedto his complaints. Dr. Gautam stated that he had tried to put the
investigation of the two cases back on the right track and also pointed out
the glaring omissions and deficiencies in the investigation. He had also
observed in his report that the cases instituted against the witnesses and the
attitude of the Police was another cause of grave concern. He also made
a request to the Court to be spared from being involved in the matter any
further as he had no machinery of his own by which he could conduct an
independent and impartial investigation.
418 SUPREME COURT REPORTS [2023] 11 S.C.R.
25. The Division Bench further proceeds to record the findings of
the Inspecting Judge given in his report dated 21.02.2007, which we have
already reproduced in the earlier part of this order.
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 House,
Patna and the report of Justice C.K. Prasad, the Inspecting Judge of
Bhagalpur Judgeship further make it clear that the abductors of Lalmuni
Devi succeeded in their design and she was not allowed to make a free
deposition in the Bhagalpur Court.”
27. Despite the above material which had come on record, the senior
counsel appearing for Prabhunath Singh before the High Court continued
to oppose any directions to be issued by the Division Bench. He reverted to
the old theme that the petition had been rendered infructuous and the Court
was needlessly proceeding further in the matter. The submission was that
both the reliefs claimed in the petition namely, recovery of Lalmuni Devi
and the other for getting a case registered and investigation carried out
regarding her abduction stood already granted and the proceedings may be
brought to an end. He also objected to the Court’s previous orders calling
for reports from Dr. D.N. Gautam, Addl. Director General of Police. He also
made an effort to argue that the report was based upon material which was
in the nature of hearsay evidence and as such on its basis the Court may not
hold that deposition of Lalmuni Devi before the Trial Court on 03.11.2006
was not free and voluntary.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 419
[VIKRAM NATH, J.]
28. The Division Bench rejected the submissions of Mr. Vindhya
Kesari Kumar, learned senior counsel appearing for Prabhunath Singh as
being without any substance or merit. The Division Bench further proceeded
to record the finding that the deposition of Lalmuni Devi on 03.11.2006
before the Trial Court was not voluntary but was made under duress and
intimidation while she was under the control of the accused. Following is
the relevant extract from the said judgment:
“…Every criminal trial, specifically a trial relating to a double murder
is supposed to be held fairly and impartially. The present trial was not
held at Chapra, in departure from the normal, but was transferred to
Hazaribagh and then to Bhagalpur in order to ensure that it should
be held fairly. But the materials before the court leave no room for
doubt that the proceedings of the trial were violently interfered with
and the trial’s sanctity has been badly abused. In light of the materials
before it, the court has no hesitation in finding that the deposition of
Lalmuni Devi on 03.11.2006 in Sessions Trial No.19 of 2003 before
the 7th ADDL. Sessions Judge, Bhagalpur was not voluntary. It was
made under duress and intimidation while she was fully under control
of the accused. What this court finds indescribably regrettable is that
the subversion of the trial was made possible only with the abetment,
by acts of omission and commission, of those who were primarily
responsible to ensure that it should be held independently, fairly and
impartially. The unholy drama that took place in the Trial Court was
not possible without the inaction and connivance of the Chapra Police,
the active help and co-operation by the P.P. conducting the trial and
the defence lawyer appearing for the accused. The saddest part in the
entire episode is that the Presiding Judge turned a Nelson’s eye to
what was happening in the Court room. He not only remained a silent
spectator in the Court room but did not even report the matter to this
Court. When an enquiry was directed there was an apparent attempt
to cover up by all concerned...”
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
420 SUPREME COURT REPORTS [2023] 11 S.C.R.
further proceeded to give some useful suggestions. It would be worthwhile
to reproduce the stand of the Advocate General, as recorded by the Division
Bench, which reads as follows:
“…Here, I am pleased to note that the Advocate General was fully
alive to the gravity of the matter. He completely gave up his earlier
stand that with the appearance of Lalmuni Devi, the writ petition had
become infructuous and gave some useful suggestions to the Court.
The Advocate General submitted that though there was an apparent
connection between the abduction of Lalmuni Devi at Chapra and the
trial taking place at Bhagalpur, the two matters were required to be dealt
with separately as one was still at the stage of police investigation while
the other was a trial before a Court. With regard to the abduction case at
Chapra, he stated that the Government is willing to accept investigation
by any mode and by any agency as may be directed by the Court. With
regard to the trial at Chapra, he submitted that the Government was
willing to change the P.P. and to appoint a Special P.P. to conduct the
trial in his place. He also submitted that prima facie the statement made
by Lalmuni Devi before the Trial Court on 03.11.2006 was not free
and voluntary and hence, she was required to be re-examined. He also
said that there was need to change the Presiding Judge by transferring
the case to another Court.…”
30. Here an apt Latin Maxim which means he who acts through another,
acts himself, may be quoted “qui facit per alium facit per se”.
31. Insofar as the investigation regarding the incident of abduction
is concerned, the Division Bench, although noticed that the same was
deplorable at that time but as it was still at the stage of investigation, the
Advocate General assured that it would be done in a fair and impartial
manner and also expeditiously. Directions were also issued that the report
of Dr. Gautam along with the copy of the judgment, be sent to the Director
General of Police and the Home Secretary, Bihar to take curative measures
in the matter without any loss of time. The last part of the judgment contains
the directions issued by the Division Bench with respect to the murder trial
which was pending at Bhagalpur. The Division Bench found the suggestions
given by the Advocate General positive and fully acceptable. Apart from
transferring the trial out of Bhagalpur, the Court also issued a couple of
other directions. The said directions are reproduced hereunder:
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 421
[VIKRAM NATH, J.]
“…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 integrity.
iii. The deposition of Lalmuni Devi taken on 03.11.2006 would stand
scrapped and she will be examined afresh before the Trial Court
at Patna under Section 311 of the Code of Criminal Procedure.
iv. The order passed by the Bhagalpur Court closing the prosecution
case is set aside and the trial shall proceed from the stage of
examination of Lalmuni Defendant vi as directed above.
v. It will be open to the Special P.P. to make an application for
recall of witness(establishment) earlier examined. In case such
a petition is filed, the Trial Court shall pass appropriate orders,
in accordance with law.
vi. The report of Hon’ble Mr. Justice C.K. Prasad is directed to
be placed before the Standing Committee of the Court for
consideration and suitable action.
vii. The Bihar State Bar Council is directed to examine the roles of
the P.P. and the defence counsel who were conducting Sessions
Trial No.19 of 2003 before the 7th Additional Sessions Judge,
Bhagalpur and to take appropriate action in the matter.
This writ petition is disposed of with the aforesaid observations and
directions.”
422 SUPREME COURT REPORTS [2023] 11 S.C.R.
32. The above completes the proceedings which were undertaken in the
Habeus Corpus petition resulting into the judgment of the Division Bench
dated 13.03.2007 of the Patna High Court.
33. Pursuant to the directions of the Division Bench, the trial was
transferred to Patna from Bhagalpur. The proceedings at the Sessions Court,
Patna were equally disappointing and the conduct of the State Government,
the Public Prosecutor so appointed and the investigating agency, including
that of the Trial Judge, remained unchanged. Although in the earlier part of
the judgment, the proceedings, after the judgment dated 13.03.2007 of the
Division Bench, before the Trial Court have been incorporated but in order
to maintain the continuity the same at the cost of repetition are reproduced
here again:
34. Pursuant to the direction issued, vide judgment dated 13.03.2007,
the trial proceeded but again in a most shabby manner and not complying
with the directions of the High Court in letter and spirit. The Special Public
Prosecutor for the State, instead of getting the witnesses examined before
the Court, filed affidavits on their behalf reiterating their earlier statements.
Only 2 witnesses were re-examined namely PW-1 and PW-10. With respect
to PW-2, PW-4 to PW-7, affidavits were filed stating that they had nothing
further to add and they reiterated their deposition given earlier. Shrimati
Lalmuni Devi (CW-1) was again examined on 29.09.2008. Prosecution
evidence was closed on 29.09.2008. The Trial Court, vide judgment dated
24.10.2008, acquitted all the accused in both the Sessions Trials bearing no.
469 of 2007 and 470 of 2007.
35. It would be appropriate to refer to the investigation, proceedings
and evidence led during the trial right from the stage of FIR till the second
statement of CW-1 Lalmuni Devi which was recorded on 29.09.2008. After
the incident on 25.03.1995 at about 09.00 AM, the three injured were taken
to the State Hospital Camp, Panapur. The Fard Bayan was 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
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 423
[VIKRAM NATH, J.]
Masrakh under Sections 147, 148, 149, 307 IPC and Section 27 of the Arms
Act for registering the report. Contents of the Fard Bayan have already been
reproduced in the earlier part of this judgment.
36. On its basis, FIR was registered at P.S. Panapur as Case No. 62 of
1995 on 26.03.1995. The FIR contains endorsement of various authorities
and Courts of its perusal. It also bears the endorsement that Section 302
IPC was added on 30.03.1995. On record is also available the Fard Bayan
of Lalmuni Devi recorded during the investigation on 21.08.1995.
37. The statement of one Baidyanath Tiwari and one of the injured
Smt. Devi recorded under Section 164 CrPC is also available on record.
Baidyanath Tiwari stated that the incident of firing had taken place at
around 09.00 AM. He was a teacher of Sanskrit in Gogal Singh High School
Nayagaon, Chapra and on the relevant date was the Presiding Officer at
the Polling Booth No.100. Around 09.00 AM, he noticed that four-five
anti-social elements, armed with fire-arm weapons, started indiscriminate
firing. In that group, there was one short height person who had covered
his face. He further stated that the CRPF deputed at the Polling Booth and
the patrolling party started firing in retaliation which created a stampede.
At some distance, he noticed a couple of people having fallen down in
which one was a woman. He further stated that he did not know whether
the injured had received the injury from the firing of anti-social elements
or the CRPF men. He however states that Prabhunath Singh was not one of
those who were firing. He also states that he knew Prabhunath Singh from
before. This statement was recorded on 23.05.1996 i.e. after more than one
year from the date of the incident.
38. Smt. Devi’s statement under Section 164 CrPC was recorded on
17.05.1996. She had also stated that when she was returning home after
casting her vote, a little ahead of the school where the polling was taking
place from the field of Raher (kind of Pulse), four-five persons came out,
they were armed. Some of them had covered their faces with piece of cloth
and they started firing,as a result of which, she along with Rajendra Rai,
Kadama Rai and Daroga Rai received injuries. Daroga Rai had died on the
spot and Rajendra Rai fell unconscious. At that time, Prabhunath Singh was
not there. She further stated that she knew Prabhunath Singh ever since he
became a Member of the Legislative Assembly.
424 SUPREME COURT REPORTS [2023] 11 S.C.R.
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
IPC and Section 27 of the Arms Act. On the same day separately, a charge
was framed against Prabhunath Singh by the same Trial Court under Section
302 IPC and Section 27 of the Arms Act. On 27.07.2006, the statement of
seven witnesses were recorded as follows:
PW-1 - Parma Rai;]
PW-2 - Harinath Rai;
PW-3 – Kedama Ram;
PW-4 – Harinder Rai;
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. The prosecution requested for these seven witnesses to be declared
as hostile and sought permission to cross-examine them, which was granted.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 425
[VIKRAM NATH, J.]
The cross-examination by the prosecution of PW-1, PW-2, PW-4, PW-5,
PW-6 and PW-7 is similar. However, insofar as PW-3 Kadama Ram is
concerned, he was neither sought to be declared hostile nor was he cross-
examined. All six witnesses denied having narrated to the Police regarding
the incident supporting the prosecution story.
44. It would further be relevant to mention here that PW-1 was re-
examined on 24.09.2008 pursuant to the directions issued by the Division
Bench of the High Court on 13.03.2007. This time, he again came up with
a similar statement that he had come to depose on his own accord and that
he was not giving the statement under any coercion. The prosecution again
was trying to further help the accused and tried to make up for the lacuna
left earlier, as this time PW-1 mentioned the names of the persons he was
accompanied with and deliberately did not take the name of CW-1. He
further stated that all of a sudden firing started from the fields of Raher as a
result of which Rajendra Rai, Smt. Devi and Daroga Rai received injuries.
He further stated that the fields of Raher were dense and one feet higher than
his height and as a result he could not see the persons who were firing. He
further stated that he took the injured to the hospital at Panapur where the
Doctor had referred them to the Chapra Sadar Hospital. He further states that
the Police did not make any further inquiry from him. He further denied that
he had not given any statement that it was Prabhunath Singh of BPP who had
come in the car. At this stage, on the request of the Special Public Prosecutor,
he was sought to be declared hostile with liberty to cross-examine. In the
cross-examination, he denies his statement recorded by the Police during the
investigation. Rest of the statement is with respect to the treatment provided
to the injured at different stages. He also denied the suggestion that earlier
he had stated that CRPF had also fired in retaliation. He also denied the
suggestion that under the influence of the accused he is hiding the true 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
426 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 cross-
examination, he states that all the injured were in sensitive condition and
were badly injured so he immediately referred them to the Chapra Hospital
for better treatment. He further states that no police person came to his
hospital and recorded statement of any of the three injured persons. Again,
he was re-examined on 24.09.2008 on the request of the Public Prosecutor in
which statement he further strengthened the case of the defence by repeatedly
stating that all the three injured were unconscious (at least three times).
48. PW-11 is Dr. Ashok Kumar Gada, who had conducted the post-
mortem on the body of Daroga Rai, proved the post-mortem report that it
was under his signature which was marked as Ex.3.
49. CW-1 Lalmuni Devi, in her original statement dated 03.11.2006,had
stated that she had come to depose on her own; nobody has brought her; that
she did not know anything about the case; that the Police had not recorded
her statement at the Patna Medical College; that she did not put her thumb
impression or signature on any document.
50. It would also be worthwhile to briefly refer to the proceedings before
the Trial Court after the judgement of the High Court dated 13.03.2007.
a) Actual proceedings started on 13.06.2008 before the Trial Court
at Patna. On the said date, on the request of the six accused they
were allowed to remain on their previous bail. Thereafter five-six
dates were fixed on which nothing substantial happened.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 427
[VIKRAM NATH, J.]
b) On 08.09.2008, the Special Public Prosecutor moved an
application under Section 311 CrPC stating that the prosecution
wants to examine evidence of CW-1 Lalmuni Devi, PW-1
Parma Rai and PW-10 Dr. Sudhir Kumar who had already been
examined earlier before the High Court. The case was ordered to
be put up on 10.09.2008. The Trial Court allowed the application
under Section 311 CrPC and ordered for recalling of the witnesses
Parma Rai (PW-1) and Dr. Sudhir Kumar (PW-10). It further
directed the Superintendent of Police, Chapra to produce the
prime witness Lalmuni Devi (CW-1) and fixed 24.09.2008
for their evidence. On 24.09.2008, the order sheet records that
both the witnesses PW-1 and PW-10 were cross-examined
and discharged. It is in this statement that the prosecution, by
producing them, further strengthened the case of the defence
instead of strengthening the case of the prosecution. Further
Lalmuni Devi (CW-1) could not be produced on the 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 10.00 o’clock in the day. We were returning after
428 SUPREME COURT REPORTS [2023] 11 S.C.R.
casting our votes. Motor vehicles came there from village
Satzora. Prabhunath Singh asked as to how the votes were
seing caste. I responded that people were casting their votes
on “Chakra” (wheel). The motor vehicle entered into the
rahar (a kind of pulse) field. Thereafter Prabhunath Singh
fired shot from his vehicle. Three persons namely Rajendra
Rai, Daroga Rai and Srimati Devi sustained bullet injuries
however Srimati Devi sustained bullet injury on her arm. I
had taken the dead-body of my son to Panpur P.S. from the
booth and the dead-body was sent to Patna from the Police
station. My son was given medical treatment at Patna but
he succumbed to his injury. His post mortem examination
was conducted. My statement was recorded by the police
after the demise of my son. Now I do not have to give my
statement before the Court. I had given my statement before
the Judge at Bhagalpur. My son died after six months of
the occurrence.”
In her cross-examination, she was subjected to many
suggestions to which she gave satisfactory explanation.
The defence could not elicit any major discrepancies in her
examination-in-chief. The cross-examination is as under:
“I went back to my house with the police after
adducing evidence at Bhagalpur. I had not gone to the
Magistrate with the S.I. of police of Panapur P.S. after three
days of coming back to my house. My Dewar Kedama Rai
had come to the hospital with Rajendra Rai. Parma Rai is
not my relative. There was no one with me at the time I was
giving my statement to the police at hospital. Kedama rai
was present with me at the time I was giving my statement.
I had given my statement on the day on which my son
died. I disclosed all the facts whatsoever relating to the
occurrence before the S.I. of Police. The S.I. of police had
read over the content of my statement to me. I affixed my
thumb impression thereon after understanding the content
to be true. Besides the statement given at hospital.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 429
[VIKRAM NATH, J.]
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 his injury.
Harendra Rai is my son. Harendra Rai himself had
told me that I had to utter the name of Prabhunath Singh
among the shooters. It is not a fact that I have deposed
falsely in the Court.”
d) On the same date i.e. 29.09.2008, the Trial Court closed the
prosecution evidence and fixed 15.10.2008 for examination of
the accused under Section 313 CrPC. On 15.10.2008 examination
of the accused under Section 313 CrPC was recorded. The
defence also filed a certified copy of the statement of Lalmuni
Devi recorded under Section 164 CrPC by Shri Sampat Kumar,
Judicial Magistrate, Chapra on 06.11.2006 in connection with
the abduction case in Panapur P.S. Case No. 81 of 2006.
e) Further an application was filed by private counsel Shri Ranjan
Kumar Sinha, advocate on behalf of the informant, that additional
evidence may be recorded for meeting the ends of justice. He
also submitted that the Investigating Officer of the case is not
examined, although liberty was given by the High Court for
430 SUPREME COURT REPORTS [2023] 11 S.C.R.
taking any additional evidence in the case. The Trial Court did
not find it necessary to summon the Investigating Officer. The
Trial Court further closed the evidence of the defence and fixed
17.10.2008 for arguments.
f) On 17.10.2008, another petition was filed by the private counsel
for the informant, stating that the prosecution evidence was closed
without taking proper steps for the evidence of the Investigating
Officer, the Doctor, PW-3 Kadama Rai and seizure list witnesses
and prayed for them being called for recording their statements
as court witnesses. This petition was also rejected by the Trial
Court on the ground that private counsel has no locus standi to
file such a petition. It completely failed to be sensitive to the facts
and circumstances of the case as was apparent from the material
on record.
g) The Trial Court also rejected another petition, moved on behalf
of one Kishori Rai for recording his statement, on the ground that
he was a stranger. Although Kishori Rai had prayed for transfer
of the case as they had lost faith in the Court, the case was fixed
on 18.10.2008 for further arguments.
h) On the said date, again an application was filed by Narendra
Singh and Kishori Rai through their private counsel under
Section 311 CrPC for recording statement of Narendra Singh,
Kishori Rai and Sanjeev Kumar Singh two of them being
witnesses of Fard Bayan, and Kishori Rai had produced the
cartridges found at the place of occurrence of which the seizure
list was prepared in presence of Janki Rai and Chabili Rai. This
application was also rejected on 18.10.2008 on the same ground
that it was moved by strangers, who were not witnesses in the
chargesheet and the application was not filed by the Special
Public Prosecutor. On the same date, arguments were heard and
20.10.2008 was fixed for parties to file their written arguments.
Thereafter the Trial Court proceeded to deliver the judgment
on 24.10.2008.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 431
[VIKRAM NATH, J.]
51. With respect to the judgment of the acquittal dated 24.10.2008,
a grievance petition was submitted by the seizure list witnesses, which
was acknowledged by the then Inspecting Judge,Justice Navin Sinha, as
he was then. The entire Sessions Trial Court records were called for and
duly examined and studied by the Inspecting Judge. The Inspecting Judge
noticed the glaring deficiencies both deliberate and malicious, step by step.
The Inspecting Judge not only noticed the deliberate mischief on the part of
the Investigating Agency but also the Public Prosecutor and the Presiding
Judge of the Trial Court in not discharging their pious duty of doing justice.
The Inspecting Judge recorded that the trial that had been conducted by the
Presiding Officer leads to only two possible conclusions, either the judgment
is based on extraneous considerations or the Officer completely lacks judicial
acumen. He then goes on to record that he examined seven random Sessions
Trial judgments of the Officer and was of the view that it cannot be said that
he does not know the law which meant the conduct of the Trial Judge was
for extraneous consideration. The Inspecting Judge, vide his report dated
04.05.2009, recommended appropriate action against the Officer. The said
report dated 04.05.2009 deserves to be reproduced and it is so done:
“Hon’ble the Chief Justice,
Re: Judgment and order dated 24.10.2008 by Sri Man Mohan
Chaudhary, Additional Sessions Judge, F.T.C. III, Patna in Sessions
Trial No.469-470 of 2007 arising out of Panapur P.S. Case No.62 of
1995 - GR No.819 of 1995 under Sections 147, 148, 149, 302, 307 of
the Penal Code and Section 27 of the Arms Act.
In a Sessions Trial, normally it is the accused, who are on trial.
Occasionally, apart from the accused, the judiciary, as an institution,
is also on trial and its credibility is put to test. The present is definitely
one such case.
On a grievance petition by a seizure list witness, as the Inspecting
Judge, Patna Judgeship, the entire Sessions Trial records were called
for. I have gone through and studied the records.
The informant Rajendra Rai, was deceased soon after the incident.
Another injured Daroga Rai was also deceased subsequently. Three
other persons were injured. The F.l.R. is in the nature of a dying
declaration. One person was specifically named as accused, having
432 SUPREME COURT REPORTS [2023] 11 S.C.R.
fired at the deceased. Three persons were named as F.l.R. witnesses,
and another two persons signed the FIR as witness to the contents. A
seizure list was prepared with regard to empty pellets seized from the
spot signed by the independent witnesses.
The named accused, a powerful political personality, sought to interfere
with the trial at Chapra. To ensure a fair trial, the case was transferred
to Hazaribagh. On re-organization of the State of Bihar, the trial was
transferred to Bhagalpur.
At Bhagalpur witnesses were intimidated in the courtroom, and unruly
created. Witnesses were kidnapped to prevent from deposing. The
Presiding Officer remained a mute witness and did not submit any
report to this Court. The Inspecting Judge on basis of a newspaper
report made a surprise visit and submitted a report. Cr.WJC No.717
of 2006 (2007(2) PLJR 244) was filed by Harendra Rai, aprosecution
witness and brother of the deceased for the abduction of their mother
to prevent from deposing. The Division Bench noticed how the process
of law was being subverted and the trial interfered including the report
of the Inspecting Judge. The trial was ordered to be transferred to Patna
to ensure a fair trial.
The Division Bench quoted extensively from the judgment of the
Supreme Court in (2004) 4 SCC 158 (Zahira Habibullah Sheikh Vs.
State of Gujarat). It cautioned the Presiding Officer to be wary and
ensure that justice was done in all respects. Liberty was given for recall
of prosecution witnesses under Section 311 CrPC.
The Presiding Officer in the order sheet dated 08.09.2008 specifically
states that he has gone through the order of the Division Bench and
then quotes the directions with regard to recall of witnesses but makes
no reference to the observation from the case of Zahira Sheikh. He
also refers to Cr. Misc. No.44589 of 2006 preferred by Kishori Rai,
a seizure list witness for his examination under Section 311 CrPC.
The FIR in the form of a dying declaration was not marked as an
exhibit. The Presiding Officer himself states that it is the nature of a
dying declaration. The application filed by Kishori Rai, seizure list
witness, to examine him along with Narendra Singh and Sanjeev
Kumar Singh (attesting witness to the FIR) as witnesses, was rejected
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 433
[VIKRAM NATH, J.]
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 CrPC and neither were they charge sheeted witness. The
application of Kishori Rai was rejected by saying that the original
seizure list was not on record. Kishori Rai was not a charge sheet
witness or the informant but a stranger and no application by him on
behalf of the informant, who was dead, would be entertained.
The P.P. remained silent. The Presiding Officer preferred to ignore the
directions of the Division Bench from the observations in the case of
Zahira Habibullah Sheikh.
After the order of the Division Bench, the Public Prosecutor filed an
application for recall of certain witnesses including FIR witnesses (not
the attesting witnesses). The Public Prosecutor then himself filed their
affidavits that they did not wish to depose beyond what was deposed by
them at Bhagalpur. The Public Prosecutor then requested for evidence
to be closed. The Court took no further steps to verify the voluntary
nature and genuineness of the affidavits.
The conduct of the Presiding Officer ignoring these duties prescribed
in the case of Zahira Habibullah Sheikh in taking no steps for having
the F.I.R. exhibited is shocking. After acknowledging that it was in the
form of a dying declaration, he rejects it as it had not been proved. No
coercive steps whatsoever were taken to secure the attendance of the
Investigating Officer. It was simply stated that despite efforts and notice
to D.G.P., he has not appeared. If the I.O. was evading appearance, the
search for truth made his appearance a compelling necessity for the
Presiding Officer. The original seizure list went missing. The Presiding
Officer took no steps for reconstruction or holding an enquiry why and
how the seizure list has gone missing from the records. Affidavits filed
by the Public Prosecutor were accepted by the Presiding Officer as a
gospel truth. The directions of the Division Bench of the duties of the
Presiding Officer were completely ignored in the grab of a direction
for expeditious disposal of the trial. The Presiding Officer did not
notice the dichotomy that the Public Prosecutor himself filed the
application for recall of witnesses in the changed circumstances and
then filed affidavits on their behalf himself. The application of seizure
434 SUPREME COURT REPORTS [2023] 11 S.C.R.
list witness, Kishori Rai, for his examination and that of the two F.l.R.
witnesses was rejected on absolutely frivolous grounds even after
noticing that the Public Prosecutor was not supporting the application.
Cr. Misc. No.44589 of 2006, by Kishori Rai, a seizure list witness, was
disposed with the observation that the Public Prosecutor has already
been directed in Cr. W.J.C. No.717 of 2006 to move appropriately
under Section 311 CrPC.
The duty of the Presiding Officer was to search for the truth in the
criminal trial. He completely abdicated his duties and consciously
chose to ignore the order of caution by the Division Bench reminding
him of his duties.
The manner in which the trial has been conducted by the Presiding
Officer leads to only two possible conclusions. The judgment is
either based on extraneous considerations or the Officer completely
lacks judicial acumen. I had called for random seven Sessions Trial
judgments of the Officer. It cannot be said that he does not know the
law.
The public image of the judiciary is tested in such cases. The Officer
has failed the institution.
The desirability of appropriate action against the Officer merits serious
consideration.”
52. The said report was placed before the Standing Committee of the
High Court and considered in the meeting dated 07.07.2009 wherein it was
resolved to accept the recommendation. Later on when the said minutes came
up for confirmation in the meeting dated 14.07.2009 it was resolved vide
agenda item No.1(ii) that the recommendation made by the Inspecting Judge
not only be accepted but be enlarged with further direction that the judgment
in question dated 24.10.2008 be listed on judicial side before appropriate
Bench for considering suo motu exercise of revisional power under CrPC.
The said resolution of the Standing Committee is reproduced hereunder:
“Resolution
It is resolved to confirm the proceedings of the meeting of the Standing
Committee held on 7th July 2009 with the following modifications.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 435
[VIKRAM NATH, J.]
i. Under the Agenda- Any other matter- it is resolved to place on
record the appreciation of valuable contribution made by Hon’ble
Mr. justice V.N. Sinha as a Member of Committee during his
tenure, which has just expired (V.N. Sinha, J. Abstaining.)
ii. In respect of Agenda Item No.5 of Vol.I the resolution will stand
enlarged with a further direction that the judgment in question
dated 24.10.2008 be listed on judicial side before appropriate
Bench for considering suo motu exercise of revisional power
under Code of Criminal Procedure.
iii. In respect of Additional Agenda Item No.2 the resolution is
modified to the extent that shri Krishna Kant Tripathi shall also
not be posted as Principal Judge in Family Court at Aurangabad
but as District and Sessions Judge Nawadah and Shri Akhilesh
Kumar Jain Shall be posted as District and Sessions Judge at
Jehanabad instead of Nawadah.”
53. It is on the decision of the Standing Committee that Criminal
Revision No. 1345 of 2009 was registered with cause title as “The State of
Bihar Versus Prabhunath Singh & Ors”. The Learned Single Judge dismissed
the said criminal revision, vide impugned judgement dated 02.12.2011,
giving rise tothe present appeal.
54. Learned Single Judge of the High Court, while dismissing the
revision, recorded the following findings:
a) Revisional Power is akin to the appellate power in view of Section
401 CrPC.
b) Fard Bayan, turned into lodging of FIR, has not been proved
by any witness. The officer or authority, who recorded the said
statement, has not been produced as a witness. Moreover, it does
not contain a certification of the mental/physical health of the
injured (later deceased). Besides, the non-production of any such
witness, who 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.
436 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 CrPC, is unacceptable as the post-mortem report is not
covered by the said provision.
e) CW-1 Lalmuni Devi is not a hearsay witness, as held by the Trial
Court, but is a tutored witness in view of her last two lines in
cross-examination. (The High Court went one step further from
the Trial Court in treating the CW-1 as a tutored witness.)
f) Any other prosecution witness of fact does not corroborate
the testimony of CW-1. Instead, their testimonies are against
CW-1 as no other prosecution witness has stated about her
presence.
g) It was observed that although CW-1 was not named in the
chargesheet but Pirbahor Police Station probably recorded
her statement while she was attending to her injured son
in the Primary Medical Health Centre (PMHC), which is
sufficient to indicate that her statement was recorded during
the investigation.
h) Zahira Sheikh’s judgement is not applicable as it relates to
mayhem on account of communal hatred and disharmony,
resulting in some mass massacres. The present case may have
some political tinge, but that could not be of the same or deeper
hue as was in Zahira’s case.
55. We have heard learned counsel for the parties and also perused
the original record.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 437
[VIKRAM NATH, J.]
56. The arguments advanced on behalf of the appellant are briefly
summarized as follows:
a) None of the issues flagged in the report dated 04.05.2009 of the
Inspecting Judge regarding the manner and illegality of trial of
the case were considered much less in accordance with law.
b) Trial of the case was not conducted as per directions vide order
dated 13.07.2007 in Cr.WJC No. 717/2006 passed by the Division
Bench of the High Court in the Habeas Corpus Petition.
c) A case is made out for de-novo trial to cure the travesty of justice
committed in a case wherein in a broad day light, two persons
were done to death, apart from causing injury to another.
d) Witnesses were not allowed to be properly examined and the trial
of the case was not conducted by the Special Public Prosecutor
as per directions of the High Court.
e) The Special Public Prosecutor of the case was not competent
person since he was not having practice as an advocate for ten
years in terms of Section 24(8), CrPC.
f) The findings in the impugned order are perverse and erroneous
and the evidences, available on record are not appreciated
properly.
g) The evidence of CW-1 has not been appreciated in accordance
with law either by the Trial Court or the High Court. On the
sole evidence of CW-1 the conviction of accused deserves to be
recorded.
h) Not a single Police Officer, including the Investigating Officer,
was examined in the case showing clear malice.
57. On the other hand, learned senior counsel appearing for the
Respondent Nos. 2 to 8 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.
438 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 conducted,
deliberate lapses on the part of the Public Prosecutor in leading the
prosecution witness, lapses on the part of the Trial Court in not exercising
the powers vested in it to ensure a fair and just trial, the facts mentioned
in the reports of the Inspecting Judge and also the findings recorded by the
High Court in the Division Bench, need to be mentioned.
Lapses on the part of the prosecution conducting the trial and that
on the part of the Investigating Agency:
60. Briefly the lapses are summarized as under:
a) No explanation was given for not producing the scribe of the
FIR. In case the scribe was not available for some reason then
someone else from the police station could have been produced
to prove the hand writing and signature of the scribe.
b) The Investigating Officer not produced by the prosecution, is
again a clear and deliberate lapse.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 439
[VIKRAM NATH, J.]
c) Non-production of other prosecution witnesses of preparing the
recovery/seizure list, inquest report, carrying the dead-body to the
hospital, and absence of any effort to prove other formal aspects
of the investigation clearly indicate malice and deliberate lapse
on the part of the prosecution.
d) The conduct of the Public Prosecutor in filing affidavits in
evidence of the witnesses of fact despite directions of the High
Court and further examining witnesses under 311 CrPC to
strengthen the case of defence reflects the tainted role of the
Public Prosecutor.
61. The legal issues which arise for consideration in the present case
may be summarized as under:
A) Whether the Supreme Court, in appeal against acquittal, can
consider the High Court’s judgement dated 13.03.2007 passed
in the Habeas Corpus Writ Petition, which was not part of the
evidence produced (although it was part of the Trial Court record)
and was not relied upon by the prosecution before the Trial Court,
as a piece of incriminating evidence in the nature of a Public
Document and, if yes, up to what extent?
B) Whether the previous or subsequent conduct of the accused,
established on record, can be treated as a circumstance against
the accused in view of Section 8 of the Evidence Act?
C) Whether the FIR or Bayan Tahriri can be said to be proved as
a piece of reliable prosecution evidence and if so, what would
be the position of law on the issue of treating the FIR or Bayan
Tahriri as the Dying Declaration?
D) Whether the testimony of a Prosecution Witness (an old feeble,
rustic, illiterate lady and mother of the deceased and an eye-
witness of the incident), who stated in the end of her cross-
examination that “her son (another alive son) had asked her to
take the name of accused before the Court,” can be treated to be
a reliable evidence against such accused, especially in view of
the checkered and abnormal history of the case?
440 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 parties or their agents have agreed to admit a fact during the court
proceeding or in writing before the hearing, then such fact need not be proved
unless the Court believes that it needs to be proved. The aforementioned
three Sections i.e. 56 to 58 of the Evidence Act are reproduced hereunder:
“56.Fact judicially noticeable need not be proved.––No fact of which
the Court will take judicial notice need be proved.
57. Facts of which Court must take judicial notice.––The Court
shall take judicial notice of the following facts: ––
[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament
1 [of the United Kingdom], and all local and personal Acts
directed by Parliament 1 [of the United Kingdom] to be judicially
noticed;
(3) Articles of War for [the Indian] Army [Navy or Air Force]
(4) The course of proceeding of Parliament of the United
Kingdom, of the Constituent Assembly of India, of Parliament
and of the legislatures established under any laws for the time
being in force in a Province or in the States;]
(5) The accession and the sign manual of the Sovereign for the
time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the
seals of all the [Courts in [India] and of all Courts out of [India]
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 441
[VIKRAM NATH, J.]
established by the authority of [the Central Government or the
Crown Representative]; the seals of Courts of Admiralty and
Maritime Jurisdiction and of Notaries Public, and all seals which
any person is authorised to use by [the Constitution or an Act
of Parliament of the United Kingdom or an] Act or Regulation
having the force of law in [India];
(7) The accession to office, names, titles, functions, and signatures
of the persons filling for the time being any public office in any
State, if the fact of their appointment to such office is notified in
[any Official Gazette];
(8) The existence, title and national flag of every State or
Sovereign recognised by 10[the Government of India];
(9) The divisions of time, the geographical divisions of the world,
and public festivals, fasts and holidays notified in the Official
Gazette;
(10) The territories under the dominion of 10[the Government
of India];
(11) The commencement, continuance and termination of
hostilities between [the Government of India] and any other
State or body of persons;
(12) The names of the members and officers of the Court, and of
their deputies and subordinate officers and assistants, and also of
all officers acting in execution of its process, and of all advocates,
attorneys, proctors, vakils, pleaders and other persons authorised
by law to appear or act before it;
(13) The rule of the road [on land or at sea].
In all these cases and also on all matters of public history,
literature, science or art, the Court may resort for its aid to appropriate
books or documents of reference.
If the Court is called upon by any person to take judicial notice of
any fact, it may refuse to do so unless and until such person produces
any such book or document as it may consider necessary to enable it
to do so.
442 SUPREME COURT REPORTS [2023] 11 S.C.R.
58. Facts admitted need not be proved.––No fact need be proved
in any proceeding which the parties thereto or their agents agree to
admit at the hearing, or which, before the hearing, they agree to admit
by any writing under their hands, or which by any rule of pleading in
force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts
admitted to be proved otherwise than by such admissions.”
64. We are concerned with Section 56 of the Evidence Act, which
deals with the authority of a Court to accept certain facts, which are either
of common knowledge or from sources which guarantee the accuracy or are
a matter of authoritative official record or court record, without the need to
establish such fact. The judicial notice of any fact is taken when the facts
cannot reasonably be doubted.
65. This Court, in its various pronouncements, has taken support of
Section 56 of the Evidence Act to do substantial justice in respective matters.
Some of them are being reproduced hereinafter to get a better picture of
how judicial notice is taken:
a) In the case of State of Kerala v. Unni3, in paragraph 27 it has
been held as follows:
“27. Judicial notice can be taken of the fact that each
village would not have a chemical laboratory where
the process of analysis of ethyl alcohol can be carried
out.” For example, if a sample is taken in a village, by the
time sample is sent for and is analysed, the volume of ethyl
alcohol may increase. Although we are informed that some
chemical is mixed when a sample is taken, no material has
been placed in that behalf. (Emphasis added)
b) In the case of Prabhakara v. Basavaraj K.4, it was observed in
paragraph no. 21 as follows:
“21. A relief can only be on the basis of the pleadings alone.
Evidence is also to be based on such pleadings. The
only exception would be when the parties know each
3 (2007) 2 SCC 365
4 (2022) 1 SCC 115
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 443
[VIKRAM NATH, J.]
other’s case very well and such a pleading is implicit in
an issue. Additionally, a Court can take judicial note of
a fact when it is so apparent on the face of the record.
(Emphasis added)
c) In the case of Ved Mitter Gill v. UT, Chandigarh5, in paragraph
26, it was held as follows:
“26.………………………………………... The links of
the escaped undertrial prisoners with the Babbar Khalsa
International, a known and dreaded terrorist organisation
was also clearly expressed in the impugned order, as one
of the reasons, for it being impracticable, to hold an inquiry
against the appellant/petitioners. It is a matter of common
knowledge, and it would be proper to take judicial notice
of the fact, that a large number of terrorists came to be
acquitted during the period in question, on account of
the fact that witnesses did not appear to depose against
them on account of fear, or alternatively, the witnesses
who appeared before the courts concerned for recording
their deposition, turned hostile, for the same reason.”
(Emphasis added)
d) In the case of Joseph M Puthussery vs T.S. Jhon and others6,
this Court was dealing with an appeal filed under Section 116 A
of the Representation of People Act, 1951, against the order of
a single bench of the High Court declaring the election of the
appellant as Member of Kerala Legislative Assembly from No.
106, Kallooppara Constituency as void on the ground that he was
guilty of the corrupt practice within the meaning of sub-Section 4
of Section 123of 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”
5 (2015) 8 SCC 86
6 (2011) 1 SCC 503
444 SUPREME COURT REPORTS [2023] 11 S.C.R.
magazine is a yellow journal is a matter of opinion and
not of fact. It is impossible to conclude that an opinion of
this sort is a judicially noticeable fact for the purposes of
Section 56 or Section 57 of the Evidence Act, 1872. There
is nothing in the impugned judgment which indicates that
any evidence was led, much less considered as to whether
“Crime” magazine is a yellow journal and hence magazine
could not have been relied upon by the appellant in forming
a belief that the contents of the magazine were not untrue.”
(Emphasis added)
66. The law, in respect of taking judicial notice of any fact, may be
summarised in the following manner:
(i). The doctrine of judicial notice, as provided under Section 56, is
an exception to general rules of evidence applicable for proving
any fact by adducing evidence in the Court of law.
(ii). According to Section 56 of the Evidence Act, judicial notice of
any such fact can be taken by the Court, which is well-known
to everyone, which is in the common knowledge of everyone,
which is authoritatively attested, which is so apparent on the face
of the record, etc.
(iii). Except in the rarest of rare cases, judicial notice of any fact is
generally not taken in criminal matters in the normal course of
proceeding, and the case is decided on the basis of oral, material
and documentary evidence adduced by the parties to find out the
guilt or innocence.
67. As discussed above, the judicial notice of any fact is generally not
taken in criminal matters, but the present matter stands on an altogether
different footing in view of what has been noted hereinbefore. It falls in the
category of rarest of rare cases and hence, it requires a different approach.
This Court, in its considered opinion, finds that the judgement in the Habeas
Corpus Petition was passed on the basis of notes of the Inspecting Judge of
the High Court, the report of 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
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 445
[VIKRAM NATH, J.]
statement/disclosure in Bhojpuri before one of Judges hearing the Habeas
Corpus petition and several other authoritative materials after giving the
opportunity of hearing to the parties, including the accused of the crime in
question. In the said judgement, certain inferences, observations and findings
arrived at by the Division Bench have a crucial impact on the merit of the
present case, as it gives a complete picture as to how the prosecution version
in the present case was being demolished brick by brick by using political
authority and muscle power with the aid of not only the police administration
but also with the aid of Public Prosecutor and unfortunately, the Presiding
Officer of the Trial Court also conducted himself in a manner unbecoming of
a Judicial Officer, despite directions and continuous vigil by the High Court.
68. The judgement dated 13.03.2007, which is a public document, is
well discussed and is based upon authoritative materials and was passed in
consonance with the doctrine of audi alteram partem. Moreover, it has a
torchbearer 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 judgement dated 13.03.2007
to the extent of the subsequent conduct of the accused, deplorable functioning
of the Public Prosecutor, Police Administration and the Presiding Officer of
the Trial Court to extend undesirable favour to the accused.
69. Another Latin Maxim, which means that a judicial decision must
be accepted as correct, may be usefully extracted here, “res judicata pro
veritate accipitur”.
Issue (B): - Conduct of the accused-Section 8:
70. In the case in hand, the conduct of the accused is not only
relevant under Section 8 of the Evidence Act but is also one of the major
circumstances to arrive at a conclusion about his guilt. Section 8 of the
Evidence Act is being reproduced hereinafter:
“8. Motive, preparation and previous or subsequent conduct. —
Any fact is relevant which shows or constitutes a motive or preparation
for any fact in issue or relevant fact. The conduct of any party, or of any
agent to any party, to any suit or proceeding, in reference to such suit
or proceeding, or in reference to any fact in issue therein or relevant
thereto, and the conduct of any person an offence against whom is the
446 SUPREME COURT REPORTS [2023] 11 S.C.R.
subject of any proceeding, is relevant, if such conduct influences or
is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.”
The illustration (e) of Section 8 throws some light on the casein hand
and is significant in the present matter, which is being reproduced hereinafter:
“Illustration (e) -A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime,
A provided evidence which would tend to give to the facts of the case
an appearance favourable to himself, or that he destroyed or concealed
evidence, or prevented the presence or procured the absence of persons
who might have been witnesses, or suborned persons to give false
evidence respecting it, are relevant.”
71. In a very interesting case of Anant Chintaman Lagu v State
of Bombay7, this Court, while holding the accused of that case guilty of
murder, has touched on the aspects of relevancy of conduct of the accused
subsequent to the incident in question, and its inference by the Court to
decide the guilt and innocence of the accused. Relevant extracts from the
aforesaid judgement are quoted herein below:
“…A criminal trial, of course, is not an enquiry into the conduct of an
accused for any purpose other than to determine whether he is guilty
of the offence charged. In this connection, that piece of conduct can
be held to be incriminatory which has no reasonable explanation
except on the hypothesis that he is guilty. Conduct which destroys
the presumption of innocence can alone be considered as material…
***
What inference can be drawn from his conduct after the death of
Laxmibai is a matter to be considered by us. And in this connection,
we can only say at this stage that if some prior conduct is connected
intrinsically, with conduct after death, then motive of the appellant
would be very clear indeed...
***
7 AIR 1960 SC 500
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 447
[VIKRAM NATH, J.]
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 aspects leave no room for doubt that the subsequent conduct of
Respondent No.2 is one of the major circumstances pointing towards his
guilt for the incident that occurred at 9AM on 25.3.1995.
74. We may quote a Latin Maxim which aptly means that a person
who receives advantage must also bear the burden, “qui sentit commodom,
sentire debit et onus”
Issue (C): -Status of the Bayan Tahriri/Written Statement of the
deceased
75. Before discussing the status of the record of the case, it is noted,
at the cost of repetition, that this Court, with the strength of Section 56
of the Evidence Act, has already taken judicial notice of certain findings
and observations recorded by the Division Bench of the High Court in the
Habeas Corpus Petition.
76. According to the case record, the incident had occurred at 09:00 AM
on 25.03.1995. A written statement (Bayan Tahriri) of the injured Rajendra
Rai was recorded in CMHC, Panapur, on the morning of 25.03.1995 at
10:30 hours. An FIR was lodged on 25.03.1995 at ………. Hours, which
was based on the written statement (Bayan Tahriri) of the injured Rajendra
Rai, who subsequently succumbed to the injuries he received in the incident.
The FIR was forwarded to the Judicial Magistrate on 26.03.1995, and on
27.03.1995, the FIR was seen by the Judicial Magistrate.
448 SUPREME COURT REPORTS [2023] 11 S.C.R.
77. Because of the indescribably regrettable subversion of the Trial
proceedings, the formal witness, i.e., the Constable Clerk and Investigating
Officer, were not produced to prove the lodging of FIR and written complaint.
Eventually, the written statement/Bayan Tahriri, as well as the FIR, were not
marked as Exhibits. All the witnesses of fact, except CW-1 Lalmuni Devi
(mother of deceased Rajendra Rai), had turned hostile either under fear
or being won over. Even the testimony of PW-10, Dr. Sudhir Kumar also
appears to be influenced by the accused -side as he repeatedly stated (four
times) before the Trial Court that “injured were unconscious”, despite the fact
that the injury report does not mention that the “injured were unconscious”
78. The deplorable conduct of the Presiding Officer of the Trial
Court also resulted in the miscarriage of justice at various steps of the
trial, but the most objectionable aspect is that one person Kishori Rai, a
seizure list witness (who was not included as a witness in the chargesheet
by the Investigating Officer)had filed an application before the Trial Court
seeking his examination as well as examination of other two persons
namely Nagendra Singh and Sanjeev Kumar Singh (who had signed said
Bayan Tahriri as attesting persons but were not included as witnesses in
the chargesheet by the Investigating Officer)as witnesses during the trial.
However, the said application was rejected by the Trial Court, vide order
dated 18.10.2008, on flimsy grounds like, the application has not been
moved through Public Prosecutor, the seizure list is not on record, the person
Kishori Rai is not a witness of the chargesheet. The Presiding Officer of the
Trial Court adopted such a pathetic approach despite noticing the detailed
order dated 13.03.2007 passed by the Division Bench of the High Court in
the Habeas Corpus Petition.
79. Even the High Court, despite acknowledging in the impugned
judgment that Revisional Power is akin to the appellate power in view of
Section 401 CrPC, failed to set the record straight by exercising the appellate
powers given under Sections 386, 389, 390 and 391CrPC, as provided under
Section 401(1) of CrPC.
80. Now in this background, we would analyze whether the FIR or
Bayan Tahriri can be said to be proved as a piece of reliable prosecution
evidence and if so, what would be the position of law on the issue of treating
the FIR or Bayan Tahriri as a Dying Declaration.
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 449
[VIKRAM NATH, J.]
81. It is an undisputed position of law that the FIR is a public document
defined under Section 74 of the Evidence Act. Various High Courts have
expressed this view from time to time.
a) In the case of Channappa Andanappa Siddareddy and others
v. State8, the Karnataka High Court held as follows:
“3. The F. I. R. being a record of the acts of the public
officers prepared in discharge of the official duty is a public
document as defined under Section 74 of the Evidence Act.
Under Section 76 of the Evidence Act, every public officer
having the custody of a public document, which any person
has a right to inspect, is bound to give such person on
demand a copy of it on payment of the legal fees therefore.”
b) The Single Bench of Gujrat High Court, in the case of Jayantibhai
Lalubhai Patel vs. State of Gujrat9, concluded as follows:
“10. From the aforesaid discussions, it clearly appears that
whenever FIR is registered against the accused, a copy of
it is forwarded to the Court under provisions of the Code.
Thus it becomes a public document. Considering (1) the
provisions of Article 21 of the Constitution of India,(2)
First Information Report is a public document in view of
Section 74 of the Evidence Act.”
c) In the case of Shyam Lal vs State of U.P. And Ors10, the Division
Bench of Allahabad High Court followed the same view.
d) The Division Bench of the Delhi High Court, while dealing
with a public interest litigation being Court on its Own
Motion through Mr. Ajay Chaudhary vs. State11, discussed
pronouncements of various High Courts and held that there can
be no trace of doubt that FIR is a public document as defined
under Section 74 of the Evidence Act.
8 1980 Crl LJ 1022
9 1992 CRl LJ 2377
10 1998 Crl LJ 2879
11 2011 CrlLJ 1347
450 SUPREME COURT REPORTS [2023] 11 S.C.R.
e) Recently, a Single Bench of Chhattisgarh High Court took similar
view in the case of Narendra Rajput vs. State of Chhattisgarh
through Secretary, Department of Home Affairs (Police) and
Others12.
82. This Court endorses the above view and holds that FIR is a public
document defined under Section 74 of the Evidence Act.
83. Now, what is to be seen is that any public document does not stand
proven by the mere fact of its production. It is proved in the usual manner
of proof when an objection to it is taken. The Court usually accepts a fact
as proved when, after considering the document and the evidence before it,
concludes that what is stated in the document is believable based on what the
document, on the face of it, states along with what a witness to the document
states about the contents and how the document was prepared/authored.
84. According to the common practice of Trial Court and also according
to the General Rules (Criminal) as applicable in the case, all the papers and
documents filed and produced during any inquiry and trial of a criminal case
are marked as ‘Paper No.’ and at the stage of evidence, when any article,
weapon, material, or document is admitted as evidence, it is marked as an
exhibit, be it in any manner whatsoever either by use of alphabets or by
use of numbers (generally as Ex-Ka for prosecution evidence and Ex-Kha
as defence evidence).
85. At the stage of evidence, when any document/paper is formally
produced for being treated as a piece of evidence, the Court looks at two
basic aspects. Firstly, the existence of the document on the Court’s record
and, secondly, the proof of its execution or its contents being sufficiently
deposed to by a witness having requisite knowledge thereof, where after, the
document in question is marked as exhibit. At the stage of exhibiting any
document as a piece of evidence, the truth of what is stated in the document
is not considered. It is left open to final evaluation at the trial after cross-
examination, and the entire testimony of the witness about the existence
and contents of the document is weighed in conjunction with various other
factors emerging during a trial. At the final evaluation stage, the Trial Court
concludes whether the document speaks the truth and decides what weight
12 2019 SCC Online Chh 16
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 451
[VIKRAM NATH, J.]
to give it for final decision. In other words, its evidentiary value is analysed
by the Courts at the time of final judgment.
86. This Court in the case of Arbada Devi Gupta vs Birendra Kumar
Jaiswal and Anr.13, in paragraph 16 has held as follows:
“16. ………………..The legal position is not in dispute that mere
production and marking of a document as exhibit by the Court cannot
be held to be a due proof of its contents. Its execution has to be proved
by admissible evidence that is by the ‘evidence of those persons who
can vouchsafe for the truth of the facts in issue’………...”
87. In this view of the matter, the marking of a piece of evidence as
‘exhibit’ at the stage of evidence in a Trial proceeding is only for the purpose
of identification of evidence adduced in the trial and for the convenience
of the Court and other stakeholders in order to get a clear picture of what
is being produced as evidence in a Trial proceeding.
88. As we are dealing with this case as an “exceptionally painful
episode of our Criminal Justice System”, we have already taken judicial
notice of the judgement passed by the High Court in the Habeas Corpus
petition for drawing an adverse inference against the subsequent conduct
of the accused of the trial in question, it’s Public Prosecutor, Police
Administration and the Presiding Officer of the Trial Court as provided
under Section 8 of the Evidence Act.
89. In the present case, considering the failure of State machinery and
failure of the Trial Court to ensure a fair trial from the perspective of the
victim side, the aspect of non-marking of the FIR and Bayan Tahriri as an
exhibit, non-production of the formal witnesses, i.e., the Constable Clerk
and Investigating Officer to prove the lodging of FIR/Bayan Tahriri and the
flimsy rejection of application filed by Kishori Rai seeking his examination
as a witness along with the examination of Nagendra Singh and Sanjeev
Kumar Singh (who had signed said written statement/Bayan Tahriri as
attesting persons) as witnesses in the Trial proceeding do not vitiate the
genuineness of the FIR and Bayan Tahriri, and we refuse to give any discount
to the accused persons for non-exhibition thereof.
13 (2003) 8 SCC 745
452 SUPREME COURT REPORTS [2023] 11 S.C.R.
90. The above view finds support from the judgement of this Court in
the case of Ram Bihari Yadav vs State of Bihar & Ors14, relevant extract
whereof is quoted herein below:
“Para 13. Before parting with this case, we consider it appropriate to
observe that though the prosecution has to prove the case against the
accused in the manner stated by it and that any act or omission on the
part of the prosecution giving rise to any reasonable doubt would go
in favour of the accused, yet in a case like the present one where the
record shows that investigating officers created a mess by bringing on
record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or
deliberately omitted to do what they ought to have done to bail out the
appellant who was a member of the police force or for any extraneous
reason, the interest of justice demands that such acts or omissions of
the officers of the prosecution should not be taken in favour of the
accused, for that would amount to giving premium for the wrongs of
the prosecution designedly committed to favour the appellant. In such
cases, the story of the prosecution will have to be examined de hors
such omissions and contaminated conduct of the officials otherwise the
mischief which was deliberately done would be perpetuated and justice
would be denied to the complainant party and this would obviously
shake the confidence of the people not merely in the law enforcing
agency but also in the administration of justice.”
91. Now further issue crops up about the treatment of the FIR/
Bayan Tahriri as dying declaration and in this respect various earlier
pronouncements of this Court have clarified the position of law that the
statement by an injured person recorded as FIR can be treated as a dying
declaration and such a statement is admissible under Section 32 of the Indian
Evidence Act. It was also held that the dying declaration must not cover the
whole incident or narrate the case history. Corroboration is not necessary
for this situation; adying declaration can be the sole basis for conviction.
92. In the case of Munnu Raja and another v. State of M.P.15, the
following observations are relevant:
14 (1998) 4 SCC 517
15 (1976) 3 SCC 104
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 453
[VIKRAM NATH, J.]
“Para 5. In regard to these dying declarations, the judgment of
the Sessions Court suffers from a patent infirmity in that it wholly
overlooks the earliest of these dying declarations, which was made by
the deceased soon after the incident in the house of one Barjor Singh.
The second statement which has been treated by the High Court as a
dying declaration is Ex. P-14, being the FIR which was lodged by the
deceased at the police station. The learned Sessions Judge probably
assumed that since the statement was recorded as a FIR, it could not
be treated as a dying declaration. In this assumption, he was clearly
in error. After making the statement before the police, Bahadur Singh
succumbed to his injuries and therefore the statement can be treated
as a dying declaration and is admissible under Section 32(1) of the
Evidence Act. The maker of the statement is dead and the statement
relates to the cause of his death.
Para 6. The High Court has held that these statements are essentially
true and do not suffer from any infirmity. It is well settled that though a
dying declaration must be approached with caution for the reason that
the maker of the statement cannot be subject to cross- examination,
there is neither a rule of law nor a rule of prudence which has hardened
into a rule of law that a dying declaration cannot be acted upon unless
it is corroborated…
***
Para 10. We are in full agreement with the High Court that both
of these dying declarations are true. We are further of the opinion
that considering the facts and circumstances of the case, these two
statements can be accepted without corroboration. Bahadur Singh was
assaulted in broad day light and he knew the appellants. He did not
bear any grudge towards them and had therefore no reason to implicate
them falsely. Those who were in the constant company of Bahadur
Singh after the assault, had also no reason to implicate the appellants
falsely. They bore no ill-will or malice towards the appellants. We see
no infirmity attaching to the two dying declarations which would make
it necessary to look out for corroboration.”
93. This Court in the case of Ram Bihari Yadav vs State of Bihar &
16
Ors , has discussed the law in paragraph 6 as follows:
16 (1998) 4 SCC 517
454 SUPREME COURT REPORTS [2023] 11 S.C.R.
“Para 6. The law relating to dying declaration - the relevancy,
admissibility, and its probative value- is fairly settled. More often the
expressions ‘relevancy and admissibility’ are used as synonyms but
their legal implications are distinct and different for more often than
not facts which are relevant are not admissible; so also facts which are
admissible may not be relevant, for example, questions permitted to be
put in cross- examination to test the veracity or impeach the credit of
witnesses, though not relevant are admissible. The probative value of
the evidence is the weight to be given to it which has to be judged having
regard to the facts and circumstances of each case. in this case, the thrust
of the submission relates not to relevancy or admissibility but to the
value to be given to Exh.2. A dying declaration made by a person who
is dead as to cause of his death or as to any of the circumstances of the
transaction which resulted in his death, in cases in which cause of his
death comes in question, is relevant under Section32 of the Evidence
Act and is also admissible in evidence. Though dying declaration
is indirect evidence being a specie of hearsay, yet it is an exception
to the rule against admissibility of hearsay evidence. Indeed, it is
substantive evidence and like any other substantive evidence requires
no corroboration for forming basis of conviction of an accused. But
then the question as to how much weight can be attached to a dying
declaration is a question of fact and has to be determined on the facts
of each case.”
94. We may usefully reproduce the relevant paragraphs of the
judgement of this Court in the case of Suresh Chandra Jana vs. State of
West Bengal and Ors., reported in (2017) 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;
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 455
[VIKRAM NATH, J.]
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, 2008
SCC OnLine Mad 1251 and Indrajit Khandekar v. Union of India
and Ors., 2014 SCC OnLine Bom 4810]. It has to be remembered
that every stakeholder in this criminal justice system is expected to
act with a sense of fairness to bring out the truth so that punishment
can be meted out to those who deserve. Although courts are provided
with the duty to dispense justice, it cannot be denied that effective
dispensation of justice by the courts in this country requires support of
all the stakeholders. In light of the above, every stakeholder is expected
to be aware of their responsibility and work towards achieving ends
of the criminal justice system.
34. The last aspect is regarding the defective investigation and
prosecution. If a negligent investigation or omissions or lapses, due
to perfunctory investigation, are not effectively rectified, the faith
and confidence of the people in the law enforcing agency would be
shaken. Therefore the police have to demonstrate utmost diligence,
seriousness and promptness. [refer Ram Bihari Yadav v. State of Bihar,
(1998) 4 SCC 517].
35. The basic requirement that a trial must be fair is crucial for any
civilized criminal justice system. It is essential in a society which
recognizes human rights and is based on values such as freedoms, the
456 SUPREME COURT REPORTS [2023] 11 S.C.R.
rule of law, democracy and openness. The whole purpose of the trial
is to convict the guilty and at the same time to protect the innocent. In
this process courts should always be in search of the truth and should
come to the conclusion, based on the facts and circumstances of each
case, without defeating the very purpose of justice.”
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 Section32(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 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 Corpus judgment
dated 13.03.2007 in view of a serious allegation of her kidnapping by the
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 457
[VIKRAM NATH, J.]
accused side on 24.10.2006 i.e., just before her examination in the Trial Court
and the High Court directed that she will be reexamined afresh before the
Trial Court at Patna under Section 311 of the CrPC. Subsequently, CW-1
was examined by the Trial Court when she had deposed about the incident
in question and supported the prosecution’s version narrated in the FIR.
98. The High Court, in its impugned judgement, concluded that CW-1
Lalmuni Devi is not a hearsay witness, as held by the Trial Court, but is
a tutored witness in view of her last two lines in cross-examination. Any
other prosecution witness of fact does not corroborate the testimony of
CW-1. Instead, their testimonies are against CW-1 as no other Prosecution
Witness has stated about her presence. The main reason assigned by the
High Court for such a conclusion is that she has stated in the end of her
cross- examination that “her son (another alive son) had asked her to take
the name of accused before the Court,”
99. The above conclusion drawn by the High Court is unacceptable and
suffers from a serious error of law and also an error of fact. The High Court
has completely failed to take up the merit of the case in its right perspective
and failed to take note of the sensitivity attached to the case.
100. The High Court ought to have considered the fact that on account
of the complete failure of state machinery, it was the institution of justice
which had taken the task in its hand, firstly, by means of a Habeas Corpus
Petition and secondly, by means of Suo Moto Revision under Section 401
of CrPC having the foundation of inspecting notes of the Inspecting Judge
of the District Judgeship and the resolution of Standing Committee of
High Court. The minutes of the Standing Committee and the report of the
Inspecting Judge, Justice Navin Sinha dated 04.05.2009 were on record of
the High Court but it chose to completely ignore the same.
101. The High Court ought to have considered the checkered history
of events that occurred in the case, resulting in the judgement of the
Division Bench of the High Court in the Habeas Corpus Petition containing
serious observations about the conduct of all the stakeholders of the said
criminal trial and also the impact of the report of the Inspecting Judge dated
04.05.2009.
458 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 incident
in question. A witness, like the CW-1 of the present case, cannot be expected
to possess a photographic memory and to recall the details of an incident.
The variations of trivial nature in her testimony are liable to be ignored. The
very sentence uttered by her at the end of her examination that “her son
had asked her to take the name of the accused before the Court” is not so
surprising in a case like the present one. When the entire family of CW-1
was facing so many storms, it is quite natural for a son to say to her mother
(who was old, illiterate, rustic woman having faced immense trauma) that
she should not forget to disclose the name of accused persons, in as much as
the second occasion of her examination, as ordered by the Division Bench
of High Court under Section 311 of CrPC, was the last opportunity for her
to speak the truth before the Trial Court.
104. We do not find anything unusual in the statement of CW-1, and
her ocular evidence appears to be trustworthy and corroborates the dying
declaration of her son Rajendra Rai. This conclusion of ours is guided by
the basic and well-settled principles of appreciation of evidence, which
this Court in the case of Balu Sudam Khalde and Another vs. State of
Maharashtra17, has summarized as principles of appreciation of ocular
evidence in a criminal case, which we can usefully reproduce hereinafter:
17 2023 SCC OnLine SC 355
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 459
[VIKRAM NATH, J.]
“APPRECIATION OF ORAL EVIDENCE
Para 25. The appreciation of ocular evidence is a hard task. There is
no fixed or straight-jacket formula for appreciation of the ocular evidence.
The judicially evolved principles for appreciation of ocular evidence in a
criminal case can be enumerated as under:
I. “I. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is formed,
it is undoubtedly necessary for the Court to scrutinize the
evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the
general tenor of the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken as to render it
unworthy of belief.
II. If the Court before whom the witness gives evidence had
the opportunity to form the opinion about the general tenor
of evidence given by the witness, the appellate court which
had not this benefit will have to attach due weight to 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.
460 SUPREME COURT REPORTS [2023] 11 S.C.R.
V. Too serious a view to be adopted on mere variations falling
in the narration of an incident (either as between the evidence
of two witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident.
It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What
one may notice, another may not. An object or movement might
emboss its image on one person’s mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them.
They can only recall the main purport of the conversation. It
is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of
an occurrence, usually, people make their estimates by guess
work on the spur of the moment at the time of interrogation.
And one cannot expect people to make very precise or reliable
estimates in such matters. Again, it depends on the time-sense
of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately
the sequence of events which take place in rapid succession
or in a short time span. A witness is liable to get confused, or
mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to beoverawed by
the court atmosphere and the piercing cross examination by
counsel and out of nervousness mix up facts, get confused
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 461
[VIKRAM NATH, J.]
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 Tahsildar Singh v. State of UP (AIR
1959 SC 1012)]
105. In the totality of the Case, this Court finds that the testimony
of CW-1, Lalmuni Devi (mother of deceased Rajendra Rai), corroborates
the same and makes it reliable. The narration about the incident’s time,
place and manner, the specific role attributed to the accused persons, etc,
as described by Lalmuni Devi (CW-1), conforms with the contents of the
FIR/Bayan Tahriri.
106. This Court is conscious of the fact that a path different from the
normal is being adopted to determine the guilt of the accused. The Court is
compelled to do so in the glaringly peculiar facts of the present case which
have been elaborately discussed in the preceding paragraphs.
107. We have noticed that the three main stake holders in a criminal
trial, namely the Investigating Officer that is the part of the police of the
State of Bihar, the Public Prosecutor, and the Judiciary, have all utterly
failed to keep up their respective duties and responsibilities cast upon them.
This Court time and again has commented upon the failure of the major
stakeholders in the criminal delivery system.
462 SUPREME COURT REPORTS [2023] 11 S.C.R.
108. In the case of State of Haryana and Ors. vs. Ch. Bhajan Lal
and Ors18., this Court had commented on the conduct of the Police Officer.
The following extract from the said judgment is reproduced hereunder:
“Human dignity is a dear value of our Constitution. But if a police
officer transgresses the circumscribed limits and improperly and
illegally exercises his investigatory powers in breach of any statutory
provision causing serious prejudice to the personal liberty and also
property of a citizen, then the Court, on being approached by the person
aggrieved for the redress of any grievance has to consider the nature
and extent of the breach and pass appropriate orders as may be called
for without leaving the citizens to the mercy of police echelons since
human dignity is a dear value of our Constitution.”
109. Insofar as the Public Prosecutors are concerned, a lot of comments
have been made, not only by this Court but also by the Law Commission,
highlighting the role and importance of a Public Prosecutor. We may quote
with profit the role of the Prosecutors as stated in the 197th Law Commission
of India Report on Public Prosecutors’ Appointments (2006):
“The Prosecutor has a duty to the state, to the accused and the Court.
The Prosecutor is all times a minister of justice, though seldom so
described. It is not the duty of the prosecuting counsel to secure a
conviction, not should any prosecutor even feel pride or satisfaction
in the mere fact of success.”
In 154th Law Commission of India Report it was reported as follows:
“Prosecutors are the ministers of Justice whose job is none other
than assisting the State in the administration of Justice. They are not
representatives of any party. Their job is to assist the Court by placing
before the Court all relevant aspects of the case. They are also not there
to see the culprits escape conviction.”
110. This Court in the case of Zahira Habibulla H. Sheikh v. State of
Gujarat19, had commented as follows with respect to the conduct of fair trial:
18 AIR 1992 SC 604
19 (2004) 4 SCC 158
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 463
[VIKRAM NATH, J.]
“Denial of a fair trial is as much injustice to the accused as is to the
victim and the society. Fair trial obviously would mean a trial before
an impartial judge, a fair prosecutor and atmosphere of judicial calm.
Fair trial means a trial in which bias or prejudice for or against the
accused, the witnesses, or the cause which is being tried is eliminated.
If the witnesses get threatened or are forced to give false evidence
that also would not result in a fair trial. The failure to hear material
witnesses is certainly denial of fair trial.”
***
“Failure to accord fair hearing either to the accused or the prosecution
violates even minimum standards of due process of law. It is inherent
in the concept of due process of law, that condemnation should be
rendered only after the trial in which the hearing is a real one, not
sham or a mere farce and pretence. Since the fair hearing requires an
opportunity to preserve the process, it may be vitiated and violated by
an overhasty, stage-managed, tailored and partisan trial.”
***
“Time has become ripe to act on account of numerous experiences
faced by courts on account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary considerations at the
instance of those in power, their henchmen and hirelings, political clout
and patronage and innumerable other corrupt practices ingeniously
adopted to smother and stifle truth and realities coming out to surface
rendering truth and justice to become ultimate casualties. Broader
public and societal interests require that the victims of the crime who
are not ordinarily parties to prosecution and the interests of State
represented by their prosecuting agencies do not suffer even in slow
process but irreversibly and irretrievably, which if allowed would
undermine and destroy public confidence in the administration of
justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice
of rule of law, enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the witness.”
***
464 SUPREME COURT REPORTS [2023] 11 S.C.R.
“A more serious ground which disturbs us in more ways than one is
the alleged absence of congenial atmosphere for a fair and impartial
trial. It is becoming a frequent phenomenon in our country that court
proceedings are being disturbed by rude hoodlums and unruly crowds,
jostling, jeering or cheering and disrupting the judicial hearing with
menaces, noises and worse.”
111. The Trial Court and the High Court miserably failed to notice
the sensitivity and intricacies of the case. Both the Courts completely shut
their eyes to the manner of the investigation, the Prosecutor’s role, and
the high-handedness of the accused as also the conduct of the Presiding
Officer of the Trial 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 the Evidence
Act. They failed to draw any adverse inference against the accused with
respect to their guilt.
112. Section 311 CrPC confers wide powers on any court at any
stage of any inquiry, trial or other proceeding under this Code to summon
material witness or examine person present. Such person may not be a person
summoned as a witness. Power to recall and re-examine is also vested. The
concept is that it should be essential for the just decision of the case. The
said section is reproduced hereunder:
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 465
[VIKRAM NATH, J.]
“Section 311 in The Code Of Criminal Procedure, 1973
311. Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding
under this Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness, or. recall
and re- examine any person already examined; and the Court shall
summon and examine or recall and re- examine any such person if his
evidence appears to it to be essential to the just decision of the case.”
This power can be exercised not only by the Trial Court but also by
the appellate Court or revisional Court. The logic behind this provision is
that the endeavour of the Courts is to find out the truth which would be
essential for the just decision of the case. Additionally, Sections 367 and
391 CrPC confers powers on the High Court dealing with death reference
and appellate Courts to take additional evidence. The said sections are
reproduced hereunder:
“Section 367 in The Code of Criminal Procedure, 1973
367. Power to direct further inquiry to be made or additional evidence
to be taken.
(1) If, when such proceedings are submitted, the High Court thinks
that a further inquiry should be made into, or additional evidence
taken upon, any point bearing upon the guilt or innocence of the
convicted person, it may make such inquiry or take such evidence
itself, or direct it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the
convicted person may be dispensed with when such inquiry is made
or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by the
High Court, the result of such inquiry or evidence shall be certified
to such Court.”
“Section 391 in The Code Of Criminal Procedure, 1973
391. Appellate Court may take further evidence or direct it to be taken.
(1) In dealing with any appeal under this Chapter, the Appellate Court,
if it thinks additional evidence to be necessary, shall record its reasons
466 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 the charge-sheet to prove the police papers.
Despite applications being filed to summon persons who were not shown
as witnesses to the charge-sheet, the Trial Court repeatedly rejected the said
applications in 2006 and again in 2008 on the flimsy grounds that were not
named in the charge-sheet or that the Public Prosecutor had not filed such
application in gross violation of Section 311 CrPC.
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
HARENDRA RAI v. THE STATE OF BIHAR & ORS. 467
[VIKRAM NATH, J.]
the Fard Bayan of Rajendra Raiwere fully established. The only
issue was with regard to the identity of the assailants.
d) The post-mortem reports, show that the death of Rajendra Rai and
Daroga Rai was homicidal in nature. The medico legal reports
supported the prosecution’s story to the extent that the injuries
were caused by a fire arm, which proved fatal for two out of the
three injured.
e) Adverse inference against the accused is drawn in view of their
subsequent conduct.
f) Judicial notice is taken of the judgment in the Habeas Corpus
petition dated 13.07.2007 regarding the conduct of the accused,
the investigating agency, the Public Prosecutor and the Presiding
Officer conducting the trial.
g) The two administrative reports of the respective judges, who were
constitutional functionaries, also have to be given due credence
and cannot be ignored outright regarding the conduct of the
accused, public prosecutor and the Presiding Officer conducting
the Trial.
h) The statement of CW-1 is found to be reliable, and the Courts
below wrongly discarded it on the ground that it was hearsay and
tutored.
i) The dying declaration and the statement of CW-1 fully establish
that it was Prabhunath Singh, who had caused the injuries from
his firearm weapon, which proved to be fatal for two out of the
three injured and also caused injury to the third surviving injured,
namely Smt. Devi.
j) Prabhunath Singh (accused no.1) is thus liable to be convicted
under Sections 302 and 307 IPC for committing culpable
homicide amounting to murder and attempt to murder.
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.
468 SUPREME COURT REPORTS [2023] 11 S.C.R.
115. Accused-respondent no.2 is thus convicted under Sections 302
and 307 IPC for the murders of Daroga Rai and Rajendra Rai and also for
attempt to murder of injured Smt. Devi.
116. The Secretary, Department of Home, State of Bihar and the
Director General of Police, Bihar are directed to ensure that Prabhunath
Singh (Respondent No. 2) is taken into custody forthwith and produced
before this Court to be heard on the question of sentence in view of Section
235 CrPC.
117. Let the matter be listed again on 1st September, 2023. On the said
date, accused Prabhunath Singh (respondent no. 2) be produced before this
Court in custody for the aforesaid purpose.
Headnotes prepared by: Acquittal of main accused reversed and
Bibhuti Bhushan Bose matter listed for hearing on sentence.
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