share this post:

Documentary evidence – FIR is a public document and also a dying declaration

summary:

Documentary evidence - FIR is a public document and also a dying declaration hence it shall be treated as substantive piece of evidence and admissible under section 32(1) Evidence Act.,1872

Appeal against acquittal

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.

Findings of the High court in dismissing criminal revision

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.
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.

Arguments of the appellant

58. 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.

Respondent side arguments

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 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.

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.

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.

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 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 treated to be a reliable evidence against such accused, especially in view of the checkered and abnormal history of the case?

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 82 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:

“…….”

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 85 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. Unni – (2007) 2 SCC 365, 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 – (2022) 1 SCC 115, 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 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.” (Emphasis added)

d) In the case of Joseph M Puthussery vs T.S. Jhon and others -(2011) 1 SCC 503, 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 123 of 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” 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 88 “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 90 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 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.

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 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 case in 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 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 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 7 AIR 1960 SC 500 95 motive of the appellant would be very clear indeed…
***
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 highhandedness.

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 97 observations recorded by the Division Bench of the High Court in the Habeas Corpus Petition.

FIR was not marked as exhibit

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.

Legal position to treat FIR as dying declaration

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.

FIR is public document

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.
82. This Court endorses the above view and holds that FIR is a public document defined under Section 74 of the Evidence Act.

How to prove public document

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.

How to mark exhibits?

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).

How prove a document in trial?

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, whereafter, 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 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 – (2003) 8 SCC 745 , 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.

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, nonproduction 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.

90. The above view finds support from the judgement of this Court in the case of Ram Bihari Yadav vs State of Bihar & Ors- 1998) 4 SCC 517 , 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.”

Treating FIR as dying declaration

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; a dying declaration can be the sole basis for conviction.

92. In the case of Munnu Raja and another v. State of M.P. -(1976) 3 SCC 104, the following observations are relevant:
“….”

93. This Court in the case of Ram Bihari Yadav vs State of Bihar & Ors – (1998) 4 SCC 517, has discussed the law in paragraph 6 as follows:

“……”

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) 114 16 SCC 466, which reads as follows:
“…….”

Apex court treated the FIR as dying declaration – Public document directly marked as substantive piece of evidence

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.

Appreciation of oral or ocular witness

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 Maharashtra [2023 SCC OnLine SC 355] https://demonew.section1.in/suggestions-put-to-the-witnesses-are-part-of-the-evidence-based-on-that-suggestions-court-can-convict-the-accused/ has summarized as principles of appreciation of ocular evidence in a criminal case, which we can usefully reproduce hereinafter:
“…….”

Duty of the stake holders in criminal trial

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.

Comments on public prosecutors

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 18 AIR 1992 SC 604 131 quote with profit the role of the Prosecutors as stated in the 197 th 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.”

Remarks passed on the public prosecutor by Supreme court

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 highhandedness 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.

Section 311 powers and appreciation

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. 136 The said section is reproduced hereunder:

“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 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.