TaxTMI 
TaxTMI 
2023 (8) TMI 1389
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....ide 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. 3. FIR was registered on 25.03.1995 at the Police Station Masrakh (Panapur) District Saran at Chapr....
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....ndering 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 Indian Penal Code as stated above. The prosecution examined 11 witnesses. It would be relevant to note that out of these 11 witnesses, PW-1 to PW-7 were examined on a single day i.e. 27.06.2006. The statement of all these seven witnesses were more or less similar to the effect that they saw the incident of firing but did not see who killed the two deceased. All seven witnesses were declared hostile by the Prosecution. PW-8 to PW-10 (three witnesses) were exami....
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....embers of CW-1 inside the Courtroom. This was reported in the newspapers inviting attention of the Inspecting Judge. The Inspecting Judge set up an inquiry in which he collected evidence and recorded statements. Based upon the same, he gave a detailed report dated 21.02.2007 criticizing the conduct of the Presiding Officer of the Trial Court. The judgment in the Habeas Corpus petition incorporates the findings of the Inspecting Judge in the report dated 21.02.2007. Relevant extract from the judgment in the Habeas Corpus petition is reproduced hereunder: On coming to learn, through some newspaper report about the fracas created in the Court of 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 ....
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....ama 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 recor....
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....all along. She appeared before the Court and gave oral statement before the Division Bench. The Court has recorded that she was an old and rustic village woman and seemed to be under stress and looked quite vulnerable. She spoke only Bhojpuri in which one of the members of the Division Bench Justice S.P. Singh was fluent. She stated before the Court that she and her husband were in fact abducted by the men of Prabhunath Singh. They had used force against her and had threatened her. Both her statements before the Trial Court on 03.11.2006 and her statement Under Section 164 Code of Criminal Procedure were not free and voluntary but under duress and intimidation. 19. 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 influe....
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....on-in-law who wanted to take her with them. The Judge was sitting in Court and in his presence her family members were assaulted but the Judge said nothing. She was also threatened that she would also be killed. She was again taken by Prabhunath Singh and his men from the Court on 03.11.2006. She also stated that she had not given any statement on 03.11.2006 and only her thumb impressions were taken as she was frightened and afraid that she might lose her other son, daughter-in-law and son-in-law who were being continuously assaulted. It was after three-four days that she reached her home. She also narrated in her statement in the enquiry report about the working of 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 repro....
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.... 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 rendere....
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....lice, 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 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 petitio....
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....efore 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 re....
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....dence led during the trial right from the stage of FIR till the second statement of CW-1 Lalmuni Devi which was recorded on 29.09.2008. After the incident on 25.03.1995 at about 09.00 AM, the three injured were taken to the State Hospital Camp, Panapur. The Fard Bayan was registered on the oral statement given by one of the injured (later deceased) Rajendra Rai as recorded by Sub-Inspector N.N. Thakur at 10.30 AM. The said Fard Bayan was signed by the injured Rajendra Rai, two witnesses Narendra Singh, Sanjiv Kumar Singh and by the officer in-charge, Panapur Police Station, Camp Panapur. The Fard Bayan also bears the endorsement of Sub-Inspector N.N. Thakur forwarding it to the Police Station In- charge Masrakh Under Sections 147, 148, 149, 307 Indian Penal Code and Section 27 of the Arms Act for registering the report. Contents of the Fard Bayan have already been reproduced in the earlier part of this judgment. 36. On its basis, FIR was registered at P.S. Panapur as Case No. 62 of 1995 on 26.03.1995. The FIR contains endorsement of various authorities and Courts of its perusal. It also bears the endorsement that Section 302 Indian Penal Code was added on 30.03.1995. On record i....
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.... Singh, Shatrughan Singh, Santosh Singh, Sheetal Singh, Satyendra Singh and Harendra Singh on 26.05.2006 Under Section 302/149, 147, 148 Indian Penal Code and Section 27 of the Arms Act. On the same day separately, a charge was framed against Prabhunath Singh by the same Trial Court Under Section 302 Indian Penal Code and Section 27 of the Arms Act. On 27.07.2006, the statement of seven witnesses were recorded as follows: PW-1 - Parma Rai;] PW-2 - Harinath Rai; PW-3 - Kedama Ram; PW-4 - Harinder Rai; PW-5 - Dinanath Bhagat; PW-6 - Smt. Devi; PW-7 - Tarkeshwar Rai. 41. These witnesses i.e. PW-1 to PW-7 are mentioned as witnesses in the chargesheet. It is interesting to note that their statements are almost identical. 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....
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.... He also denied the suggestion that under the influence of the Accused he is hiding the true facts. During cross-examination by the defence, whatever was not stated earlier to protect the Accused was stated in this round of statement. He stated that all three of them, after receiving injuries, had become unconscious and were not in a position to speak anything. He further stated that the Police Inspector did not record their statement at the hospital as he was throughout with the injured. He further goes on to state that Lalmuni Devi was not accompanying them when they were returning after casting their vote when the incident took place. He also goes on to state that Lalmuni Devi was not there even during the course of the treatment. He, however, admits that his leader was Lalu 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 ....
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....(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 St....
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....sk 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....
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....t it was moved by strangers, who were not witnesses in the chargesheet and the application was not filed by the Special Public Prosecutor. On the same date, arguments were heard and 20.10.2008 was fixed for parties to file their written arguments. Thereafter the Trial Court proceeded to deliver the judgment on 24.10.2008. 51. With respect to the judgment of the acquittal dated 24.10.2008, a grievance petition was submitted by the seizure list witnesses, which was acknowledged by the then Inspecting Judge, Justice Navin Sinha, as he was then. The entire Sessions Trial Court records were called for and duly examined and studied by the Inspecting Judge. The Inspecting Judge noticed the glaring deficiencies both deliberate and malicious, step by step. The Inspecting Judge not only noticed the deliberate mischief on the part of the Investigating Agency but also the 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 co....
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....PLJR 244) was filed by Harendra Rai, a prosecution witness and brother of the deceased for the abduction of their mother to prevent from deposing. The Division Bench noticed how the process of law was being subverted and the trial interfered including the report of the Inspecting Judge. The trial was ordered to be transferred to Patna to ensure a fair trial. The Division Bench quoted extensively from the judgment of the Supreme Court in (2004) 4 SCC 158 (Zahira Habibullah Sheikh v. State of Gujarat). It cautioned the Presiding Officer to be wary and ensure that justice was done in all respects. Liberty was given for recall of prosecution witnesses Under Section 311 Code of Criminal Procedure. The Presiding Officer in the order sheet dated 08.09.2008 specifically states that he has gone through the order of the Division Bench and then quotes the directions with regard to recall of witnesses but makes no reference to the observation from the case of Zahira Sheikh. He also refers to Cr. Misc. No. 44589 of 2006 preferred by Kishori Rai, a seizure list witness for his examination Under Section 311 Code of Criminal Procedure. The FIR in the form of a dying decl....
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.... Officer were completely ignored in the grab of a direction for expeditious disposal of the trial. The Presiding Officer did not notice the dichotomy that the Public Prosecutor himself filed the application for recall of witnesses in the changed circumstances and then filed affidavits on their behalf himself. The application of seizure list witness, Kishori Rai, for his examination and that of the two F.l.R. witnesses was rejected on absolutely frivolous grounds even after noticing that the Public Prosecutor was not supporting the application. Cr. Misc. No. 44589 of 2006, by Kishori Rai, a seizure list witness, was disposed with the observation that the Public Prosecutor has already been directed in Cr. W.J.C. No. 717 of 2006 to move appropriately Under Section 311 Code of Criminal Procedure. The duty of the Presiding Officer was to search for the truth in the criminal trial. He completely abdicated his duties and consciously chose to ignore 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 extraneo....
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....evision, vide impugned judgment dated 02.12.2011, giving rise to the present appeal. 54. Learned Single Judge of the High Court, while dismissing the revision, recorded the following findings: a) Revisional Power is akin to the appellate power in view of Section 401 Code of Criminal Procedure. b) Fard Bayan, turned into lodging of FIR, has not been proved by any witness. The officer or authority, who recorded the said statement, has not been produced as a witness. Moreover, it does not contain a certification of the mental/physical health of the injured (later deceased). Besides, the non-production of any such witness, who was present and heard the statement being made, has not been produced as a witness. Hence, Fard Bayan is not liable to be read as evidence. c) PW-10, the doctor, who attended to the injured persons and had prepared the injury report, had stated that the three injured were unconscious. Hence, the deceased Rajendra Rai (the injured) was not in a position to make his 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 ....
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....r of the case was not competent person since he was not having practice as an advocate for ten years in terms of Section 24(8), Code of Criminal Procedure. f) The findings in the impugned order are perverse and erroneous and the evidences, available on record are not appreciated properly. g) The evidence of CW-1 has not been appreciated in accordance with law either by the Trial Court or the High Court. On the sole evidence of CW-1 the conviction of Accused deserves to be recorded. h) Not a single Police Officer, including the Investigating Officer, was examined in the case showing clear malice. 57. On the other hand, learned Senior Counsel appearing for the Respondent Nos. 2 to 8 submitted as follows: a) That the judgment of the High Court and the Trial Court are just, valid and proper, based upon the evidence adduced during trial. b) It was a case of no evidence as all the witnesses turned hostile. c) Lalmuni Devi's (CW-1) evidence was tutored and could not be relied upon. d) The FIR itself was not proved. e) The Doctor, who had examined the injured, had stated that they were in an unconscious state an....
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....eal against acquittal, can consider the High Court's judgment dated 13.03.2007 passed in the Habeas Corpus Writ Petition, which was not part of the evidence produced (although it was part of the Trial Court record) and was not relied upon by the prosecution before the Trial Court, as a piece of incriminating evidence in the nature of a Public Document and, if yes, up to what extent? B) Whether the previous or subsequent conduct of the Accused, established on record, can be treated as a circumstance against the Accused in view of Section 8 of the Evidence Act? C) Whether the FIR or Bayan Tahriri can be said to be proved as a piece of reliable prosecution evidence and if so, what would be the position of law on the issue of treating the FIR or Bayan Tahriri as the Dying Declaration? D) Whether the testimony of a Prosecution Witness (an old feeble, rustic, illiterate lady and mother of the deceased and an eye-witness of the incident), who stated in the end of her cross-examination that "her son (another alive son) had asked her to take the name of Accused before the Court," can be treated to be a reliable evidence against such Accused, especially in view....
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.... 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 the Government of India; (9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette; (10) The territories under the dominion of the Government of India; (11) The commencement, continuance and termination of hostilities between [the Government of India] and any other State or body of persons; (12) The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorised by law to appear o....
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....vidence is also to be based on such pleadings. The only exception would be when the parties know each 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, Chandigarh (2015) 8 SCC 86, in paragraph 26, it was held as follows: 26................................................. The links of the escaped undertrial prisoners with the Babbar Khalsa International, a known and dreaded terrorist organisation was also clearly expressed in the impugned order, as one of the reasons, for it being impracticable, to hold an inquiry against the Appellant/Petitioners. It is a matter of common knowledge, and it would be proper to take judicial notice of the fact, that a large number of terrorists came to be acquitted during the period in question, on account of the fact that witnesses did not appear to depose against them on account of fear, or alternatively, the witnesses who appeared before the courts concerned for recording their deposition, turned hostile, for the same reason. (Emp....
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.... 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 judgment 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 statement/disclosure in Bhojpuri before one of Judges hearing the Habeas Corpus petition and several other authoritative materials after giving the opportunity of hearing to the parties, including the Accused of the crime in question. In the said judgment, certain inferences, observations and findings arrived at by the Division Bench have a crucial impact on the merit of the present case, as it gives a complete picture as to how the prosecution version in the present case was being demolished brick by brick by using political authority and muscle power with the aid of not only the police administration but also with the aid of Public Prosecutor and unfortunately, the Presiding O....
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.... 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 Bombay AIR 1960 SC 500, this Court, while holding the Accused of that case guilty of murder, has touched on the aspects of relevancy of conduct of the Accused subsequent to the incident in question, and its inference by the Court to decide the guilt and innocence of the Accused. Relevant extracts from the aforesaid judgment are quoted herein below: ...A criminal trial, of course, is not an enquiry into the conduct of an Accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material... *** What inference can be drawn from his conduct after the death of Laxmibai is a matter to be considered by us. And in this connection, we can....
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....1995, and on 27.03.1995, the FIR was seen by the Judicial Magistrate. 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 ....
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....ainst 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 v. State of U.P. and Ors. 1998 Crl LJ 2879, the Division Bench of Allahabad High Court followed the same view. d) The Division Bench of the Delhi High Court, while dealing with a public interest litigation being Court on its Own Motion through Mr. Ajay Chaudhary v. State 2011 CrlLJ 1347, discussed pronouncements of various High Courts and held that there can be no trace of doubt that FIR is a public document as defined Under Section 74 of the Evidence Act. e) Recently, a Single Bench of Chhattisgarh High Court took similar view in the case of Narendra Rajput v. State of Chhattisgarh through Secretary, Department of Home Affairs (Police) and Ors. 82. This Court endorses the above view and holds that FIR is a public document defined Under Section 74 of the Evidence Act. 83. Now, what is to be seen is that any public document does not stan....
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....d 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 judgment passed by the High Court in the Habeas Corpus petition for drawing an adverse inference against the subsequent conduct of the Accused of the trial in question, it's Public Prosecutor, Police Administration and the Presiding Officer of the Trial Court as provided Under Section 8 of the Evidence Act. 89. In the present case, considering the failure of State machinery and failure of the Trial Court to ensure a fair trial from the perspective of the victim side, the aspect of non-marking of the FIR and Bayan Tahriri as an exhibit, ....
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....tion 32 of the Indian Evidence Act. It was also held that the dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation; a dying declaration can be the sole basis for conviction. 92. In the case of Munnu Raja and Anr. v. State of M.P. (1976) 3 SCC 104, the following observations are relevant: Para 5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P-14, being the FIR which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a FIR, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible Under Section 32(1) of th....
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....transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant Under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the Rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an Accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case. 94. We may usefully reproduce the relevant paragraphs of the judgment of this Court in the case of Suresh Chandra Jana v. State of West Bengal and Ors., (2017) 16 SCC 466, which reads as follows: 32. It would not be out of place to discuss the importance of dying declaration Under Section 32 of the Evidence Act. The principle underlying Section 32 of the Evidence Act is 'Nemo moriturus praesumitur mentire' i.e., man will not meet his maker with a lie in his mouth. Dying declaration is one of the exceptions to the Rule of hearsay. It is ....
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....ial must be fair is crucial for any civilized criminal justice system. It is essential in a society which recognizes human rights and is based on values such as freedoms, the Rule of law, democracy and openness. The whole purpose of the trial is to convict the guilty and at the same time to protect the innocent. In this process courts should always be in search of the truth and should come to the conclusion, based on the facts and circumstances of each case, without defeating the very purpose of justice. 95. In the case at hand, the deceased Rajendra Rai gave his statement in the form of Bayan Tahriri and narrated the entire incident and circumstances of the transaction which resulted in his death. Subsequently, he died on account of injuries suffered by him in the incident in question. This fact is not in dispute and hence, following the above case laws, the FIR lodged on the basis of Bayan Tahrir of injured Rajendra Rai is liable to be treated as a dying declaration, which itself is a substantive piece of evidence and is admissible Under Section 32(1) of the Evidence Act. 96. In the present case, the FIR, being a public document and a dying declaration of the informant, is ....
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....he 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 Code of Criminal Procedure having the foundation of inspecting notes of the Inspecting Judge of the District Judgeship and the resolution of Standing Committee of High Court. The minutes of the Standing Committee and the report of the Inspecting Judge, Justice Navin Sinha dated 04.05.2009 were on record of the High Court but it chose to completely ignore the same. 101. The High Court ought to have considered the checkered history of events that occurred in the case, resulting in the judgment of the Division Bench of the High Court in the Habeas Corpus Petiti....
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....er 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 Anr. v. State of Maharashtra has summarized as principles of appreciation of ocular evidence in a criminal case, which we can usefully reproduce hereinafter: APPRECIATION OF ORAL EVIDENCE Para 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight- jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. "I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is sha....
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..... X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or 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 ....
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....n 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 o....
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....re 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 th....
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....int bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session. (2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken. (3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court. Section 391 in The Code of Criminal Procedure, 1973 391. Appellate Court may take further evidence or direct it to be taken. (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. ....