2023 Supreme(SC) 770

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, ABHAY S. OKA, VIKRAM NATH, JJ.
Harendra Rai - Appellant
Versus
The State Of Bihar & Ors. - Respondents
Criminal Appeal No.1726 Of 2015
Decided On : 18-08-2023

IMPORTANT POINTS
(1) Doctrine of judicial notice is an exception to general rules of evidence applicable for proving any fact by adducing evidence in Court of law – Except in rarest of rare cases, judicial notice of any fact is generally not taken in criminal matters in normal course of proceeding.
(2) Recall of witness – Section 311 of Cr.P.C. 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.
(3) Dying declaration must not cover whole incident or narrate case history – Dying declaration can be sole basis for conviction.

Headnote:

(A) Indian Evidence Act, 1872 – Section 56 – Fact judicially noticeable need not be proved––Doctrine of judicial notice is an exception to general rules of evidence applicable for proving any fact by adducing evidence in Court of law – Except in rarest of rare cases, judicial notice of any fact is generally not taken in criminal matters in normal course of proceeding, and case is decided on the basis of oral, material and documentary evidence adduced by parties to find out guilt or innocence – In present case, judgment in Habeas Corpus Petition is well discussed and is based upon authoritative materials and was passed in consonance with doctrine of audi alteram partem – Moreover, it has a torch bearer effect over facts of the case – It qualifies requirement of law for the purpose of taking judicial notice thereof. (Paras 66, 67 and 68)

(B) Indian Penal Code, 1860 – Sections 302/149, 147 and 148 – Arms Act, 1959 – Section 27 – Twin murders and rioting – Common object – Appeal against acquittal – High Court has completely failed to take up merit of case in its right perspective and failed to take note of sensitivity attached to the case – A witness cannot be expected to possess a photographic memory and to recall details of an incident – Variations of trivial nature in her testimony are liable to be ignored – Trial Court and High Court miserably failed to notice sensitivity and intricacies of case – Both Courts completely shut their eyes to the manner of investigation, Prosecutor’s role and highhandedness of accused as also conduct of Presiding Officer of Trial – Court, despite observations and findings having been recorded not only by Administrative Judge but also by 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 draw any adverse inference against accused with respect to their guilt – It was Accused-respondent no.2, who had caused the injuries from his firearm weapon which proved to be fatal for two out of three injured and also caused injury to third surviving injured – Accused-respondent no.2 convicted under Sections 302 and 307 of IPC. (Paras 78, 79, 99, 103, 111 and 114)

(C) Indian Evidence Act, 1872 – Section 74 – Public document–FIR is a public document defined under Section 74 of the Evidence Act – Any public document does not stand proven by mere fact of its production – It is proved in usual manner of proof when an objection to it is taken – Court usually accepts a fact as proved when, after considering the document and evidence before it, concludes that what is stated in the document is believable based on what the document, on face of it, states along with what a witness to the document states about contents and how document was prepared/authored – At the stage of exhibiting any document as a piece of evidence, truth of what is stated in the document is not considered – It is left open to final evaluation at trial. (Paras 82, 83 and 85)

(D) Indian Evidence Act, 1872 – Section 32 – Dying declaration – 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 Evidence Act – Dying declaration must not cover whole incident or narrate case history – Corroboration is not necessary for this situation – Dying declaration can be sole basis for conviction. (Para 91)

(E) Criminal Procedure Code, 1973 – Section 311 read with Sections 367 and 391 – Recall of witness – Section 311 of Cr.P.C. 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 – It should be essential for just decision of case – This power can be exercised not only by Trial Court but also by appellate Court or revisional Court – Endeavour of Courts is to find out truth which would be essential for just decision of case – Sections 367 and 391 of Cr.P.C. confers powers on High Court dealing with death reference and appellate Courts to take additional evidence – Appellate Courts can exercise all powers vested in Trial Court in an attempt to arrive at a just and fair decision. (Para 112)

Facts of the case:

Present appeal assails the correctness of judgment and order dated 02.12.2021 passed by Single Judge of the Patna High Court in Criminal Revision Petition No. 1345 of 2009, whereby Revision Petition was dismissed confirming the judgment of 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 charges.

Findings of Court:

Secretary, Department of Home, State of Bihar and the Director General of Police, Bihar are directed to ensure that Respondent No. 2 is taken into custody forthwith and produced before this Court to be heard on the question of sentence in view of Section 235 Cr.P.C.

Result : Appeal allowed. Matter listed on question of sentence.