2023 (8) TMI 1389 - SC - Indian Laws

Abduction - Relevance and admissibility of the FIR - Conduct of the Accused - Status of the Bayan Tahriri/Written Statement of the deceased - testimony of a Prosecution Witness. Whether the Supreme Court in appeal against acquittal can consider the High Court s judgment dated 13.03.2007 passed in the Habeas Corpus Writ Petition which was not part of the evidence produced (although it was part of the Trial Court record) and was not relied upon by the prosecution before the Trial Court as a piece of incriminating evidence in the nature of a Public Document and if yes up to what extent? - HELD THAT - 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 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. The judgment dated 13.03.2007 which is a public document is well discussed and is based upon authoritative materials and was passed in consonance with the doctrine of audi alteram partem. Moreover it has a torch bearer effect over the facts of the case. Thus it qualifies the requirement of law for the purpose of taking judicial notice thereof and this Court takes judicial notice of the inferences observations and findings arrived at by the Division Bench and the directions issued in its judgment dated 13.03.2007 to the extent of the subsequent conduct of the Accused deplorable functioning of the Public Prosecutor Police Administration and the Presiding Officer of the Trial Court to extend undesirable favour to the Accused. 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? - HELD THAT - 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. 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? - HELD THAT - 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 - 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 . 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? - HELD THAT - This Court finds that the testimony of CW-1 Lalmuni Devi (mother of deceased Rajendra Rai) corroborates the same and makes it reliable. The narration about the incident s time place and manner the specific role attributed to the Accused persons etc as described by Lalmuni Devi (CW-1) conforms with the contents of the FIR/Bayan Tahriri - This Court is conscious of the fact that a path different from the normal is being adopted to determine the guilt of the Accused. The Trial Court and the High Court miserably failed to notice the sensitivity and intricacies of the case. Both the Courts completely shut their eyes to the manner of the investigation the Prosecutor s role and the high- handedness of the Accused as also the conduct of the Presiding Officer of the Trial Court despite observations and findings having been recorded not only by the Administrative Judge but also by the Division Bench deciding Habeas Corpus petition. They continued with their classical rut of dealing with the evidence in a manner as if it was a normal trial. They failed to 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 - 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. 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 Code of Criminal Procedure. Accused-Respondent No. 2 is thus convicted Under Sections 302 and 307 Indian Penal Code for the murders of Daroga Rai and Rajendra Rai and also for attempt to murder of injured Smt. Devi - The Secretary Department of Home State of Bihar and the Director General of Police Bihar are directed to ensure that Prabhunath Singh (Respondent No. 2) is taken into custody forthwith and produced before this Court to be heard on the question of sentence in view of Section 235 Code of Criminal Procedure. 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.

Summary

Issues Involved:
1. Influence and misconduct by the main accused.
2. Correctness of the acquittal judgment by the Patna High Court.
3. Admissibility and reliability of the FIR and dying declaration.
4. Conduct of the accused and its relevance under Section 8 of the Evidence Act.
5. Testimony of CW-1 and its reliability.

Summary:

1. Influence and Misconduct by the Main Accused:
The main accused, a political leader and sitting Member of Parliament, influenced the administration and the investigating agency, won over witnesses, and even abducted a court witness, Smt. Lalmuni Devi, to prevent her testimony. This led to a Habeas Corpus Petition and subsequent reports criticizing the trial's conduct.

2. Correctness of the Acquittal Judgment by the Patna High Court:
The appeal challenged the Patna High Court's judgment, which confirmed the acquittal of the accused. The Supreme Court found that the trial was conducted in a shabby manner, with the prosecution and the trial court failing to ensure a fair trial. The acquittal was criticized for ignoring significant evidence and the misconduct of the prosecution and the trial court.

3. Admissibility and Reliability of the FIR and Dying Declaration:
The FIR, based on the dying declaration of Rajendra Rai, was treated as a substantive piece of evidence. Despite the prosecution's failure to produce formal witnesses to prove the FIR, the Supreme Court held that the FIR, being a public document and a dying declaration, was reliable and admissible under Section 32 of the Evidence Act.

4. Conduct of the Accused and Its Relevance Under Section 8 of the Evidence Act:
The subsequent conduct of the accused, including influencing witnesses and the administration, was considered a significant circumstance pointing towards his guilt. The Supreme Court emphasized that the conduct of the accused in subverting the trial process was relevant and incriminating under Section 8 of the Evidence Act.

5. Testimony of CW-1 and Its Reliability:
The Supreme Court found the testimony of CW-1, Lalmuni Devi, to be reliable despite minor discrepancies. The court held that her statement corroborated the dying declaration of Rajendra Rai and provided a truthful account of the incident. The High Court's conclusion that her testimony was tutored was rejected.

Conclusion:
The Supreme Court convicted the main accused under Sections 302 and 307 of the Indian Penal Code for the murders and attempt to murder. The court directed the State of Bihar to ensure the immediate custody of the accused and scheduled a hearing for sentencing. The judgment highlighted the failure of the prosecution, investigating agency, and trial court in ensuring a fair trial and emphasized the importance of judicial notice and the conduct of the accused in determining guilt.