LexHARENDRA RAI versus THE STATE OF BIHAR & ORS.
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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 Ev
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