# CASE DETAILS HARENDRA RAI v. THE STATE OF BIHAR & ORS

- **Citation:** 2023 INSC 738
- **Court:** Supreme Court of India
- **Decided:** 2023-08-18
- **Case number:** Criminal Appeal No. 1726 of 2015
- **Bench:** Sanjay Kishan Kaul, Abhay S. Oka, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-harendra-rai-v-the-state-of-bihar-ors-36266
- **Pages:** 66

## Headnote

Issues for consideration: In a double murder case, wherein it was
alleged that accused no.1-respondent no.2 had opened fi re from his rifl e
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
confi rmed 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 (fi led pursuant to abduction of CW1, mother of one
of 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 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
[2023] 11 S.C.R. 403 : 2023 INSC 738
403
* Ed.Note: Subsequent judgment reported in [2023] 11 SCR 583 may also be referred to.
404
SUPREME COURT REPORTS
[2023] 11 S.C.R.
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
diff erent 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 fi ndings 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
Offi cer of the Trial Court also conducted himself in a manner unbecoming
of a Judicial Offi cer, 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 eff ect over the facts of the case. Accordingly, judicial notice
taken by the Supreme Court of the inferences, observations and fi ndings
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 Offi cer of the Trial Court to extend undesirable favour
to the accuse

## Text

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CASE DETAILS
HARENDRA RAI
v.
THE STATE OF BIHAR & ORS.
(Criminal Appeal No. 1726 of 2015)
AUGUST 18, 2023*
[SANJAY KISHAN KAUL, ABHAY S. OKA AND
VIKRAM NATH, JJ.]
HEADNOTES
Issues for consideration: In a double murder case, wherein it was
alleged that accused no.1-respondent no.2 had opened fi re from his rifl e
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
confi rmed 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 (fi led pursuant to abduction of CW1, mother of one
of 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 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
[2023] 11 S.C.R. 403 : 2023 INSC 738
403
* Ed.Note: Subsequent judgment reported in [2023] 11 SCR 583 may also be referred to.
404
SUPREME COURT REPORTS
[2023] 11 S.C.R.
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
diff erent 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 fi ndings 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
Offi cer of the Trial Court also conducted himself in a manner unbecoming
of a Judicial Offi cer, 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 eff ect over the facts of the case. Accordingly, judicial notice
taken by the Supreme Court of the inferences, observations and fi ndings
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 Offi cer of the Trial Court to extend undesirable favour
to the accused. [Paras 66, 67 and 68]
405
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 eff orts 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 off ence 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 defi ned 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 fi nal
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 identifi cation 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 Offi cer to prove the lodging of FIR/Bayan Tahriri
and fl imsy rejection of application fi led 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]
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
406
SUPREME COURT REPORTS
[2023] 11 S.C.R.
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 suff ered
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 fi rst examination was scrapped by the High Court on the
allegation of her kidnapping just a few days before that fi rst 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]
407
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 fi nd 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 fi re 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 fi re 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 Offi cer 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 fi rearm 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 refl ected either in the Fard Bayan
of the deceased (dying declaration) or in the statement of CW1, therefore,
their acquittal is not disturbed. [Para 114]
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
408
SUPREME COURT REPORTS
[2023] 11 S.C.R.
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
Aff airs (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.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1726 of 2015.
From the Judgment and Order dated 02.12.2011 of the High Court of
Judicature at Patna in CRRP No. 1345 of 2009.
409
Appearances:
Abhay Kumar, Rajat Khattry, Shagun Ruhil, Ms. Neetu Jain, Advs.
for the Appellant.
R. Basant, Sr. Adv., Neeraj Shekhar, Sunny Choudhary, Manoj Kumar,
Devashish Bharuka, Ms. Sarvshree, Ms. Nishi Kashyap, Advs. for the
Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
VIKRAM NATH, J.
1. Everything was going as per the plan and wish of the main accused
Prabhunath Singh, a political leader and a sitting Member of Parliament at
the relevant time as he had mustered full support of the Administration and
the Investigating Agency; he had infl uenced and won over almost all the
witnesses of fact mentioned in the chargesheet (who were declared hostile),
the relevant formal witnesses including the Investigating Offi cer were not
produced in the trial by the prosecution, the Public Prosecutor prosecuting
the case was supporting the defence, the Presiding Offi cers were completely
insensitive towards their pious duty, but everything turned upside 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 fi xed for recording her statement. This
led to fi ling 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 confi rming 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.
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
410
SUPREME COURT REPORTS
[2023] 11 S.C.R.
3. FIR was registered on 25.03.1995 at the Police Station Masrakh
(Panapur) District Saran at Chapra, Bihar as Case No. 62 of 1995 under
Sections 147, 148, 149/307 of Indian Penal Code, 18601 and Section 27 of the
Arms Act. Later on, Section 302 IPC was added as two out of three injured
died during treatment. The said FIR was registered based on the statement
of one of the injured Rajendra Rai at about 10AM, who subsequently
succumbed to injuries. The statement was recorded at the corridor of Camp
Rajkiya Hospital, Panapur by Sub-Inspector N.N. Thakur of Police Station,
Panapur in the presence of two other injured namely Daroga Rai and Smt.
Devi and also before two other persons namely Narendar Singh and Sanjeev
Kumar Singh who had signed as witnesses in the FIR.
4. The prosecution version, as recorded in the FIR in the statement
of Rajendra Rai, narrated that the informant along with eight-nine other
persons of his village was returning after casting their vote in the election on
25.03.1995 at around 9AM; when they reached south east of his residence,
fi ve persons came in a car armed with rifl es and guns and stopped the car;
Prabhunath Singh (accused no.1), who was the contesting candidate for
Bihar People's Party (BPP), while sitting in the car enquired as to whom
all of them had cast their votes; the informant answered that they had cast
their votes in favour of Janta Dal Party having symbol of Chakrachap; on
hearing this, the car moved towards south and stopped at a little distance;
Prabhunath Singh (accused no.1) opened fi re from his rifl e pointing towards
the informant and others and thereafter the car sped away. As a result of the
fi ring, three persons got injured.
5. On the basis of the FIR, investigation was taken up. Inspection
was made of the spot of occurrence. Three used cartridges were recovered
from the place of occurrence, they were sealed and a recovery memo was
prepared. The Investigating Offi cer recorded the statement of the witnesses.
The injured were provided medical treatment, the doctor prepared the injury
report and after two of the injured expired, the post-mortem reports of the
two deceased persons were also prepared. Daroga Rai died soon after the
incident and his post-mortem was conducted on 26.03.1995. Rajendra
Rai died after about fi ve months on 21.08.1995 and his post-mortem was
conducted on 22.08.1995.
1
In short, "IPC"
411
6. Prabhunath Singh (accused no.1) was avoiding the arrest, nor was
he surrendering as he was the member of the ruling party. The District
Magistrate, considering the amount of infl uence 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 off ences under various
Sections of IPC 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 eff ect that they saw the
incident of fi ring 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 examined on 10.08.2006.
8. In the meantime, on an application under Section 311 of the
Code of Criminal Procedure, 19732, the Trial Court, vide order dated
23.10.2006,summoned Lalmuni Devi (CW-1), mother of deceased (Rajendra
Rai) as court witnessand03.11.2006 was fi xed for recording her statement.
On 24.10.2006, Lalmuni Devi (CW-1) and her husband were abducted from
their residence by none other than the brother of Prabhunath Singh (accused
no.1) and his associates. The appellant (son of CW-1) made a complaint to the
local police and when no action was taken, he approached the Superintendent
of Police of District Saran and also the Director General of Police and the
State Home Secretary which also went unattended. This resulted into fi ling
a petition seeking a writ of Habeas Corpus before the Patna High Court.
9. The said Habeas Corpus Petition was registered as Cr.WJC No. 717
of 2006, Harendra Rai Versus State of Biharand Others.
10. The said Habeas Corpus Petition was decided by the Division
Bench of the Patna High Court vide the detailed judgment dated 13.03.2007.
2
CrPC
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
[VIKRAM NATH, J.]
412
SUPREME COURT REPORTS
[2023] 11 S.C.R.
The Division Bench issued certain directions with respect to the trial in
question. The said judgement would be dealt with in detail at a later stage.
11. Pursuant to the direction issued vide judgment dated 13.03.2007,
the trial proceeded but again in a most shabby manner, not even complying
with the directions of the High Court. The Special Public Prosecutor for
the State, instead of getting the witnesses examined before the Court, fi led
affi davits on their behalf reiterating their earlier statements. Only two
witnesses were re-examined namely PW-1 and PW-10. With respect to PW-
2, PW-4 to PW-7, affi davits were fi led stating that they had nothing further
to add and they reiterated their deposition given earlier. Shrimati Lalmuni
Devi (CW-1) was again examined and cross-examined on 29.09.2008 where
she fully supported the prosecution story. Prosecution evidence was closed
on 29.09.2008. The Trial Court, vide judgment dated 24.10.2008, acquitted
all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470
of 2007. There was no challenge to the judgment of acquittal by the State.
12. During the trial, on the date of the statement of CW-1 i.e.
03.11.2006, there was some altercation in the Trial Court where the lawyers
and pairokar of the accused, assaulted the family members 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 Offi cer of the Trial Court. The judgement in the Habeas Corpus
petition incorporates the fi ndings 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 fi rst transferred to Hazaribagh and when as a result of the
bifurcation of the State Hazaribagh fell in Jharkhand, it was brought
413
to Bhagalpur. After taking into account the reports submitted by the
District and Session Judge, the 7th Additional Sessions Judge, the
Public Prosecutor, statements of witnesses and the report of Dr. D.N.
Gautam to whom he entrusted the enquiry, the Hon'ble Judge, in his
report, found and held as follows.
"I do not have the slightest hesitation in endorsing the reports of
the District and Sessions Judge, Bhagalpur as also the Additional
Director General of Police that the witness Lalmuni Devi was not
produced under proper security. She was frightened and under
heavy stress prior to her examination. She was intimidated inside
the Court room prior to her examination. She was not normal
and the Court atmosphere was highly tensed and abnormal. The
materials on record led him to conclude that evidence of Lalmuni
Devi cannot be said to have been voluntarily made.
I am of the considered opinion that had the Presiding Offi cer
of the Court exercised little discretion, this untoward incident
ought not have taken place. The Presiding Offi cer of the Court
having found that the witness was not looking normal and, in
fact, looking frightened and having not been produced under
proper security, he ought to have taken these facts seriously and
prevented defl ecting the Court of Justice.
The direction of this Court to record evidence cannot be construed
to mean that the Court was obliged to record her statement despite
the fact that she was produced without proper security. I am of
the opinion that the Presiding Offi cer of the Court had also failed
miserably in the matter."
13. The proceedings of the Habeas Corpus petition also need to be
appropriately referred to. After the incident of abduction of Lalmuni Devi
(CW-1) on 24.10.2006, the Habeas Corpus petition was fi led on 31.10.2006
and was taken up by the Court on 01.11.2006. On the said date, it was
adjourned on the request made by the Advocate General. On 02.11.2006,
the Advocate General stated before the Court that, on receiving report of
abduction of Lalmuni Devi and Rama Rai, investigation was started and in
the night itself Rama Rai appeared before the Offi cer In-Charge and the Sub
Divisional Police Offi cer. He stated that, apprehending some threats from
diff erent quarters, he and his wife had gone underground for self-protection.
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
[VIKRAM NATH, J.]
414
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Rama 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 fi xed 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 fi xed i.e. 03.11.2006. Thereafter she was
taken from Bhagalpur to Chapra from where she had been abducted and
her statement was recorded under Section 164 CrPC before the Magistrate
at Chapra. In the said statement, she stated that she was not abducted by
anyone. The said statement was fi led before the High Court along with the
counter affi davits. On the above submissions, the Advocate General stated
that the petition had become infructuous.
15. The Division Bench was further informed that on 03.11.2006, the
deposition of Lalmuni Devi was not normal and smooth. Her appearance
had led to a clash between two groups of people although the said incident
was not reported by the Trial Judge. However, it had attracted the attention
of the Inspecting Judge, Bhagalpur through newspaper reports and based
on the same he called for reports and directed for enquiry. The fi nal report
dated 21.02.2007 given by the Inspecting Judge has already been referred
to above.
16. On behalf of the writ petitioner before the High Court, it was
submitted that their parents were not made free and they were still under the
clutches and remote control of the accused. The Division Bench, therefore,
did not close the proceedings of the case and adjourned the matter awaiting
the result of the enquiry by Justice C.K. Prasad, as he was the Inspecting
Judge.
415
17. The Division Bench further records that in the meantime two
complaints were fi led regarding the abduction of Lalmuni Devi and her
husband; one was fi led by their daughter in law Girija Devi at Panapur
Police Station registered as Case No. 81 of 2006 and the other was lodged
at Masrakh Police Station Dist. Saran registered as Case No.129 of 2006
at the instance of one Shankar Rai. Later on Shankar Rai retracted and
had fi led a written note stating that he had fi led the complaint under some
misunderstanding. The said Shankar Rai was one of the persons from the side
of the abductees accompanying Lalmuni Devi at the time of her appearance
before the Trial Court on 03.11.2006. The Division Bench directed that both
these complaints be thoroughly investigated and the reports of investigation
be submitted under the signature of the Deputy Inspector General of Police,
Saran range.
18. On 17.11.2006, Lalmuni Devi appeared before the Division Bench
and fi led an affi davit duly sworn in by her. In the said affi davit, it was stated
that she and her husband Rama Rai were abducted by the men of Prabhunath
Singh and were under their complete control 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 fl uent.
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 CrPC 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
infl uence and that her statement was to be recorded at the Guest House on
20.11.2006 by a Magistrate. The conduct of the Police was also noticed
by the Division Bench that they were not willing to see the reality and
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
[VIKRAM NATH, J.]
416
SUPREME COURT REPORTS
[2023] 11 S.C.R.
continued to work under the infl uence of Prabhunath Singh. The Division
Bench directed the Additional Director General of Police Dr. D.N. Gautam
to supervise the proceedings.
20. On 20.11.2006, the statement of Lalmuni Devi was recorded in
writing as also a video cassette by the Magistrate was prepared of the same
and submitted in a sealed cover. The Advocated General on 05.12.2006
submitted the interim report by Dr. Gautam. He had severely criticized the
supervision report and described it as one of the shallowest of the shallow
pieces of investigation. It was then that the Court directed the investigation
of two cases would be made under the overall charge of Dr. Gautam.
21. On 24.01.2007, the Advocate General submitted the report
by Dr. Gautam. In the meantime, report of the Inspecting Judge dated
21.02.2007 was also received by the Division Bench. The orders passed
on 08.11.2006, 17.11.2006 and 05.12.2006 were challenged before this
Court by way of Special Leave Petition (Criminal) Nos. 187, 377 and 378
of 2007 respectively. All the SLPs were dismissed by some observations
by a common order dated 15.01.2007.
22. The Division Bench had three materials before it namely affi davit
of Lalmuni Devi, her statement recorded by the Magistrate on 20.11.2006,
the reports of Dr. Gautam, Additional Director General of Police dated
30.11.2006, 16.12.2006 and 22.01.2007 and the enquiry report by Justice
C.K. Prasad, the Inspecting Judge, Bhagalpur dated 21.02.2007.
23. The Division Bench proceeded to record in detail the version of
Lalmuni Devi as to how she had been abducted along with her husband by
Dina Nath Singh (brother of Prabhunath Singh) and Chotelal, MLA from
Parsa. She had stated in detail as to what all places they had been taken to
and how they were ill-treated. She also described that Prabhunath Singh, his
security guard, the Mukhiya and Shankar told her to change her statement
and if she would not do the same, then Prabhunath Singh would kill her other
son (Harendra Rai) as well. She also described how she was taken to Court
room where the incident took place in which the men of Prabhunath Singh
assaulted her son, daughter-in-law and son-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
417
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 reproduced in
the order and the same is not being repeated as it is more or less the same as
recorded above. Dr. Gautam in his report also commented that the sequence
of events started only after the application under Section 311 CrPC was
allowed and Lalmuni Devi was called as a court witness on 03.11.2006.
24. Further, according to the report of Dr. Gautam, after abduction
of Lalmuni Devi, her son and daughter-in-law represented not only to the
offi cer-in-charge, Panapur Police Station but also to the Superintendent of
Police, the Director General of Police and the Home Secretary at Patna.
The Director General of Police forwarded the petition given by the son
and daughter-in-law to the Superintendent of Police, Chapra by fax for
taking necessary action on 25.10.2006. The same was communicated and
received in the offi ce of Superintendent of Police, Chapra on the same day
but it remained unattended till 02.11.2006. It was only after the petition was
instituted on 31.10.2006 that formal notice was taken of the said petition by
the Superintendent of Police. The report further notices that from 24.10.2006
till 03.12.2006, the son of Lalmuni Devi had been running from pillar to
post between Chapra, Patna and Bhagalpur but no public authority paid
any heedto his complaints. Dr. Gautam stated that he had tried to put the
investigation of the two cases back on the right track and also pointed out
the glaring omissions and defi ciencies in the investigation. He had also
observed in his report that the cases instituted against the witnesses and the
attitude of the Police was another cause of grave concern. He also made
a request to the Court to be spared from being involved in the matter any
further as he had no machinery of his own by which he could conduct an
independent and impartial investigation.
HARENDRA RAI v. THE STATE OF BIHAR & ORS.
[VIKRAM NATH, J.]
418
SUPREME COURT REPORTS
[2023] 11 S.C.R.
25. The Division Bench further proceeds to record the fi ndings of
the Inspecting Judge given in his report dated 21.02.2007, which we have
already reproduced in the earlier part of this order.
26. The Division Bench further records the fi nding that the above facts
and circumstances and the evidence placed on record clearly establish the
connection between abduction of Lalmuni Devi at Chapra and the murder
trial taking place before the Bhagalpur Court. Lalmuni Devi had been
abducted to prevent her from deposing freely in the trial relating to the
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 fi nding 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 rendered infructuous and the Court
was needlessly proceeding further in the matter. The submission was that
both the reliefs claimed in the petition namely, recovery of Lalmuni Devi
and the other for getting a case registered and investigation carried out
regarding her abduction stood already granted and the proceedings may be
brought to an end. He also objected to the Court's previous orders calling
for reports from Dr. D.N. Gautam, Addl. Director General of Police. He also
made an eff ort to argue that the report was based upon material which was
in the nature of hearsay evidence and as such on its basis the Court may not
hold that deposition of Lalmuni Devi before the Trial Court on 03.11.2006
was not free and voluntary.
419
28. The Division Bench rejected the submissions of Mr. Vindhya
Kesari Kumar, learned senior counsel appearing for Prabhunath Singh as
being without any substance or merit. The Division Bench further proceeded
to record the fi nding that the deposition of Lalmuni Devi on 03.11.2006
before the Trial Court was not voluntary but was made under duress and
intimidation while she was under the control of the accused. Following is
the relevant extract from the said judgment:
"...Every criminal trial, specifi cally a trial relating to a double murder
is supposed to be held fairly and impartially. The present trial was not
held at Chapra, in departure from the normal, but was transferred to
Hazaribagh and then to Bhagalpur in order to ensure that it should
be held fairly. But the materials before the court leave no room for
doubt that the proceedings of the trial were violently interfered with
and the trial's sanctity has been badly abused. In light of the materials
before it, the court has no hesitation in fi nding that the deposition of
Lalmuni Devi on 03.11.2006 in Sessions Trial No.19 of 2003 before
the 7th ADDL. Sessions Judge, Bhagalpur was not voluntary.