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Issues for consideration: In a double murder case, wherein it wasalleged that accused no.1-respondent no.2 had opened fi re from his rifl eresulting in injury to three persons, out of which two died, and the trial courthad acquitted accused-respondent nos. 2 to 8 of all the charges, which wasconfi rmed by the High Court in criminal revision, the issues before thisCourt were:(i) Whether the Supreme Court, in appeal against acquittal, couldconsider the High Court’s judgment dated 13.03.2007 passed in a HabeasCorpus Writ Petition (fi led pursuant to abduction of CW1, mother of oneof the deceased, ten days before the date fi xed for recording her statement),which was not part of the evidence produced (although it was part of theTrial Court record) and was not relied upon by the prosecution before theTrial Court, as a piece of incriminating evidence in the nature of a PublicDocument 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 accusedin view of Section 8 of the Evidence Act.(iii) Whether the FIR or Bayan Tahriri can be said to be proved as apiece of reliable prosecution evidence and if so, what would be the position oflaw on the issue of treating the FIR or Bayan Tahriri as the Dying Declaration.(iv) Whether the testimony of CW1 (an old feeble, rustic, illiteratelady and mother of the deceased and an eyewitness 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 treatedto be a reliable evidence against such accused, especially in view of thecheckered and abnormal history of the case.Evidence Act, 1872 – s.56 – Doctrine of judicial notice – JudicialNotice of fact in criminal matters – Maxim “res judicata pro veritateaccipitur”.Administration of Criminal Justice – Failure of three mainstakeholders in a criminal trial – Undesirable favour to accused – Pathdiff erent from the normal adopted to determine guilt of the accused.Held: Doctrine of judicial notice, as provided u/s.56 of the EvidenceAct, is an exception to general rules of evidence applicable for proving anyfact by adducing evidence in the Court of law. Except in the rarest of rarecases, judicial notice of any fact is generally not taken in criminal mattersin the normal course of proceeding. The present matter falls in the categoryof rarest of rare cases. Certain inferences, observations and fi ndings arrivedat by the Division Bench of High Court in judgment dated 13.03.2007in the Habeas Corpus Petition, have a crucial impact on the merit of thepresent case, as it gives a complete picture as to how the prosecutionversion in the present case was being demolished brick by brick by usingpolitical authority and muscle power with the aid of not only the policeadministration but also with the aid of Public Prosecutor and, the PresidingOffi cer of the Trial Court also conducted himself in a manner unbecomingof a Judicial Offi cer, despite directions and continuous vigil by the HighCourt. The judgment dated 13.03.2007, which is a public document, iswell discussed and is based upon authoritative materials and was passedin consonance with the doctrine of audi alteram partem. Moreover, it hasa torch bearer eff ect over the facts of the case. Accordingly, judicial noticetaken by the Supreme Court of the inferences, observations and fi ndingsarrived at by the Division Bench and the directions issued in its judgmentdated 13.03.2007 to the extent of the subsequent conduct of the accused,deplorable functioning of the Public Prosecutor, Police Administrationand the Presiding Offi cer of the Trial Court to extend undesirable favourto the accused. [Paras 66, 67 and 68] Evidence Act, 1872 – s.8 – Subsequent conduct of accused – Adverseinference – Maxim “qui sentit commodom, sentire debit et onus.”:Held: In the case in hand, a double murder case, the conduct ofaccused-respondent no.2 was not only relevant u/s.8 of the Evidence Actbut also one of the major circumstances to arrive at a conclusion about hisguilt. Respondent No.2 was instrumental in making all possible eff orts towipe out the evidence against him. The tainted investigation shows thehighhandedness of the Respondent no.2, who was a powerful person, beinga sitting M.P. of the Ruling Party. The question is why the accused wasinstrumental, when he was not guilty of the off ence to which he was beingtried. The obvious answer would be that his guilty mind was fearful aboutthe result. [Paras 70, 72, 73 and 114]Evidence Act, 1872 – s.74 – Bayan Tahriri / Written Statement ofdeceased – Evidentiary value:Held: FIR is a public document defi ned u/s.74 of the Evidence Act. Anypublic 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 truthof what is stated in the document is not considered. It is left open to fi nalevaluation at the trial after cross-examination, and the entire testimony ofthe witness about the existence and contents of the document is weighedin conjunction with various other factors emerging during a trial. Themarking of a piece of evidence as ‘exhibit’ at the stage of evidence in a trialproceeding is only for the purpose of identifi cation of evidence adducedin the trial and for the convenience of the Court and other stakeholders inorder to get a clear picture of what is being produced as evidence in a trialproceeding. In the present case, considering the failure of State machineryand failure of the Trial Court to ensure a fair trial from the perspective ofthe victim side, the aspect of non-marking of the FIR and Bayan Tahririas an exhibit, non-production of the formal witnesses, i.e., the ConstableClerk and Investigating Offi cer to prove the lodging of FIR/Bayan Tahririand fl imsy rejection of application fi led by a person seeking his examinationas a witness along with examination of two persons (who had signed saidwritten statement/Bayan Tahriri as attesting persons) as witnesses in the Trialproceeding do not vitiate the genuineness of the FIR and Bayan Tahriri, andno 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 asdying declaration:Held: Statement by an injured person recorded as FIR can be treated asa dying declaration and such a statement is admissible u/s.32 of the EvidenceAct. On facts, the deceased gave his statement in the form of Bayan Tahririand narrated the entire incident and circumstances of the transaction whichresulted in his death. Subsequently, he died on account of injuries suff eredby him in the incident in question. FIR lodged on the basis of Bayan Tahrirof the injured is liable to be treated as a dying declaration, which itself is asubstantive piece of evidence and is admissible u/s.32(1) of the EvidenceAct. [Paras 91 and 95]Evidence – Ocular evidence – Testimony of deceased’s mother,an eyewitness, who was abducted by the accused side just before herexamination in the trial court.Held: The High Court ought to have considered the checkered historyof events that occurred in the case, resulting in the judgment of the DivisionBench of the High Court in the Habeas Corpus Petition containing seriousobservations about the conduct of all the stakeholders of the said criminaltrial. CW-1’s fi rst examination was scrapped by the High Court on theallegation of her kidnapping just a few days before that fi rst examinationdated 03.11.2006. She was under continuous threat and fear of facing direconsequence, which is apparent on the face of the record. Under thesecircumstances, in case she had stated in the end of her cross-examination thather 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 thesubstantive ocular evidence as tutored one. There is no serious discrepancyor variation in the testimony of CW-1 with regard to the sequence of eventsthat occurred during the incident in question. When the entire family of CW-1was 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) thatshe should not forget to disclose the name of accused persons, in as much asthe second occasion of her examination, as ordered by the Division Benchof High Court under Section 311 of CrPC, was the last opportunity for herto speak the truth before the Trial Court. There is nothing unusual in thestatement of CW-1. Her statement is found to be reliable, and the Courtsbelow 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 anyinquiry, trial or other proceeding under this Code to summon material witnessor examine person present. Such person may not be a person summonedas a witness. Power to recall and re-examine is also vested. The concept isthat it should be essential for the just decision of the case. This power canbe exercised not only by the Trial Court but also by the appellate Court orrevisional Court. The logic behind this provision is that the endeavour of theCourts is to fi nd out the truth which would be essential for the just decisionof the case. [Para 112]Penal Code, 1860 – ss.302 and 307 – Double murder – Due toinjuries caused by fi re arm – Appeal against acquittal.Held: On facts, the post-mortem reports, show that the deaths werehomicidal in nature. The medico legal reports supported the prosecution’sstory to the extent that the injuries were caused by a fi re arm, which provedfatal for two out of the three injured. Fard Bayan registered on oral statementgiven by one of the injured (who died subsequently), which was laterconverted into an FIR, was admissible in evidence and is to be read as adying declaration or his last statement. The prosecution had established, eventhrough the hostile witnesses, that the date, time, and place of incidence asgiven in the Fard Bayan were fully established. Adverse inference againstthe accused is drawn in view of their subsequent conduct. Judicial notice istaken of judgment in the Habeas Corpus petition dated 13.07.2007 regardingthe conduct of the accused, the investigating agency, the Public Prosecutorand the Presiding Offi cer conducting the trial. Statement of CW-1 is foundto be reliable, and the Courts below wrongly discarded it on the groundthat it was hearsay and tutored. The dying declaration and the statement ofCW-1 fully establish that it was Respondent No.2 (accused no.1), who hadcaused the injuries from his fi rearm weapon, which proved to be fatal fortwo out of the three injured and also caused injury to the third survivinginjured. Respondent no.2 thus liable to be convicted under ss.302 and 307IPC. The rest of the accused, although named in the chargesheet after dueinvestigation, since their names were not refl ected either in the Fard Bayanof the deceased (dying declaration) or in the statement of CW1, therefore,their acquittal is not disturbed. [Para 114] |
