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. 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]
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]
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]
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]
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.
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