Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1735 OF 2009
Akil @ Javed …Appellant
VERSUS
State of NCT of Delhi …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. First accused is the appellant before us. The challenge is to the
judgment of the Division Bench of the High Court of Delhi in Criminal
Appeal No.134/2003 dated 16.09.2005. The High Court by its common
judgment in Criminal Appeal No.166/2003 preferred by the second
accused and Criminal Appeal No.134 of 2003 preferred by the appellant
before us confirmed the conviction of the appellant for offences under
Section 302 as well as under Section 392 read with Section 34 IPC.
2. The genesis of the case of the prosecution was that one Shama Parveen
was living in House No.A-32/15, Main Road No.66, Maujpur, that while
she was using the first floor as her residential premises she had her
own shop in the ground floor where she was dealing with air-coolers
and the business of real-estate. She had three sons living with her
apart from her mother. In another portion of the same premises her
maternal uncle one Mohd. Jamil (Mammu) was having his own business.
One Salvinder alias Kake friend of Shama Parveen used to frequently
visit her house. On 27.10.1998 Shama Parveen returned back to her
house along with Salvinder after making certain purchases from the
market and after her return appellant and two other persons entered
her house and they were armed with revolvers and also a knife. After
entering the house they enquired about Mammu and when Shama Parveen
replied that he had gone to fetch vegetables the accused snatched a
gold ring, locket and cash amounting to Rs.100/150 from Salvinder.
They demanded the keys of the almirah of Shama Parveen and out of
force when she handed over the keys the accused opened the almirah and
removed sum of Rs.15000/- kept in the almirah apart from sum of
Rs.2,50,000/- kept in the locker. They also removed a mobile phone and
some other ornaments apart from ear rings and a necklace from the
person of Shama Parveen. While so, Mohd. Jamil alias Mammu also
entered the house and another friend of Shama Parveen, namely, Nasreen
and her husband Jeeta also came there. Shama Parveen’s mother was
already present in the house. After committing robbery, the appellant
stated to have attempted to molest Shama Parveen and when Salvinder
protested to such an attempt of the appellant questioning as to why
even after removing the valuables they are indulging in such
molestation, the appellant stated to have retarded towards him asking
him to shut up and also simultaneously fired a shot on his forehead.
Salvinder stated to have fell down on the bed. The three accused
thereafter stated to have left the place with the robbed items and
cash by locking the door outside the house. After 10-15 minutes one of
the sons of Shama Parveen, namely, Danish entered the house who untied
all the victims and thereafter the injured Salvinder was taken to the
hospital where he was declared ‘brought dead’. Based on the statement
of Shama Parveen the police registered a crime under Sections
392/354/302 read with Section 34 IPC at Police Station Seelampur,
Delhi.
3. Be that as it may, based on a secret information the appellant and the
second accused were arrested by officials of the Special Cell, Lodhi
Colony from Sunlight Colony, Seema Puri while they came there in a
vehicle bearing Registration No.DL-2C-B 1381. Pursuant to the arrest
when a search was made on the person of the second accused a loaded
country-made pistol was recovered from his pant pocket. On the
personal search made on the appellant he was also found in possession
of another country-made pistol along with live cartridges. Cases were
registered against them under the Arms Act vide FIR No.717 and
718/1998 at Police Station Seema Puri. Further recoveries were also
made from the person of the appellant, namely, a gold chain and a
‘Rado’ wrist watch. Based on the further investigation it came to
light that they were involved in the incident on 27.10.1998 at the
residence of Shama Parveen. The investigation further revealed apart
from the appellant and second accused two other accused were also
involved but they continued to remain absconding and, therefore, they
were declared as proclaimed offenders.
4. The trial Court framed charges against the appellant and the second
accused under Section 392/34, 302/34, 354 and 411/34 IPC. The trial
Court ultimately convicted the appellant as well as second accused for
offences under Sections 302 read with 34 and 392 read with 34 IPC.
They were acquitted of the offence under Section 354 IPC as there was
no evidence against them. The appellant and the second accused were
imposed with a sentence of life imprisonment for the offence under
Section 302 read with 34 IPC apart from a fine of Rs.5000/- each and
in default to undergo rigorous imprisonment for one year. They were
also imposed with a sentence of 10 years rigorous imprisonment for the
offence under Section 392 read with 34 IPC apart from a fine of
Rs.5000/- each and in default to undergo rigorous imprisonment for one
year.
5. The Division Bench having dealt with the appeal of the appellant in
extentso ultimately found that the second accused could not be roped
in for the offence falling under Section 302 read with 34 IPC though
his conviction under Section 392 read with 34 IPC could be confirmed.
The Division Bench of the High Court, therefore, partly allowed the
appeal of the second accused and he was acquitted of the charge under
Section 302 read with 34 IPC while his conviction under Section 392
read with 34 IPC was confirmed. The appeal preferred by the appellant,
however, came to be dismissed. Being aggrieved of the said judgment of
the Division Bench the appellant has come forward with this appeal.
6. We heard Mr. Subramonium Prasad, learned counsel for the appellant and
Mr. B. Chahar, learned senior counsel for the respondent. The learned
counsel for the appellant submitted that the case of the prosecution
was based on the ocular evidence of the eye-witnesses and that almost
all of them turned hostile insofar as identification of the accused,
that PW.20 who alone identified the accused in his chief-examination
also turned hostile in the course of the cross-examination. The
learned counsel, therefore, contended that the evidence of PW.20 could
not have been relied upon for the conviction and sentence imposed. The
learned counsel then contended that the Courts below relied upon the
articles recovered, namely, the jewels and the watch for convicting
the appellant. According to learned counsel PW.17, who identified the
articles, made it clear that those articles were already shown to her
and, therefore, the reliance placed upon such recoveries was not
justified. The learned counsel further contended that the recovery of
arms from the appellant and the other accused were not connected to
the offence and that no weapon was marked before the Court to connect
the crime. By referring to the decision of this Court reported in
Paramjeet Singh alias Pamma V. State of Uttarakhand - (2010) 10 SCC
439
in particular paragraph 10 of the said decision the learned
counsel contended that however gruesome the offence may be, an accused
can be convicted only based on legal evidence. The learned counsel
also referred to Section 155 of the Evidence Act and contended that
the version of PW.20 in the light of his later version in the cross-
examination relating to the identity of the appellant no credence can
be given as that would defeat the very basis of the principle relating
to conviction in a criminal case. The learned counsel also relied upon
Suraj Mal V. State (Delhi Administration) - (1979) 4 SCC 725 for the
proposition that where the witnesses made inconsistent statements in
their evidence either at one stage or at different stages, the
testimony of such witnesses becomes unreliable and unworthy of
credence. The learned counsel, therefore, submitted that the reliance
placed upon the version of PW.20 who made inconsistent statement about
the identity of the appellant was wholly invalid and unreliable. The
learned counsel, therefore, contended that the conviction and sentence
imposed on the appellant are liable to be set aside.
7. As against the above submission Mr. B. Chahar, learned standing
counsel for the State submitted that the relevant fact to be kept in
mind is the criminality of the offenders involved in this case where
out of four accused two of them continue to abscond even as on date
who have been declared as proclaimed offenders. The learned counsel,
therefore, submitted that the approach of the trial Court and the High
Court in weighing the evidence of the witnesses and relied upon was
well justified. The counsel for the State also brought to our notice
the attempt of the Investigating Officer by moving the concerned
Magistrate, who allowed him to interrogate the accused in the case
under the Arms Act for 30 minutes, to hold a Test Identification
Parade of the accused which included the appellant and the appellant
along with the co-accused refused to participate in the Test
Identification Parade. Further it was pointed out that their refusal
to participate would result in drawing an adverse inference against
them. But yet it is stated that the appellant and the other accused
persisted in their refusal by stating that they were shown to the
witnesses and that their photographs were also taken. The learned
counsel submitted that such a stand of the appellant and the other
accused was a lame excuse inasmuch as the information about the arrest
of the accused was given to the Investigating Officer only on 4th
November 1998 when they were formally arrested in the present case and
that the Investigating Officer was thereafter allowed to interrogate
the accused for about 30 minutes only and that too in the Court
premises. The request of the Investigating Officer to hold Test
Identification Parade was stated to be on the very next date, namely,
5th November, 1998. The learned counsel then submitted that the
identity of the articles, namely, ‘Rado watch’ and ‘gold chain’
recovered from the appellant was duly identified by PW.14 and PW.17,
the S.I. who conducted the search on the accused and the complainant
respectively and that both of them were recovered on the same day. The
learned counsel, therefore, submitted that the conviction and sentence
imposed on the appellant does not call for interference.
8. Having heard learned counsel for the appellant as well as the counsel
for the State, having bestowed our serious consideration to the
respective submissions, the material on record and the relevant
provisions, we are convinced that the conviction and sentence imposed
on the appellant does not call for interference.
9. When we consider the submissions of learned counsel for the appellant
the same was two-fold. According to learned counsel the identity of
the appellant vis-à-vis the offence alleged was not made out. As
regards the recoveries it was contended that here again the same was
not proved in the manner known to law. Since, in the impugned judgment
the High Court has dealt with both the contentions in extenso and also
with minute details, we are of the view that by making reference to
various reasoning stated therein the contention of the appellant can
be satisfactorily dealt with which we shall do in the later part of
this judgment. In that respect it can be stated that the prosecution
examined PWs.17, 19, 20, 23 and 25 as eye-witnesses to the crime. In
fact such a claim of the prosecution was never in dispute. The
narration of the event that occurred on 27.10.1998 at House No.A-
32/15, Main Road No.66, Maujpur, as described by those witnesses was
not in controversy.
10. The sequence of events were that on that day at about 6:00 p.m three
intruders in the age group of 20 to 22 years entered the place of
occurrence and that out of the three persons two were armed with
revolvers and one was possessing a knife. The description of those
persons and their physical features were also mentioned by the
complainant by stating that one of them was thin, whitish in
complexion and had a cut mark on his right cheek. The other one was
described as fair coloured, without moustaches and tall. The third
person was described as a person with round face and well built. After
entering the house they asked for the whereabouts of Mammu who was
examined as PW.20. Thereafter, they snatched a gold ring from the
person of deceased Salvinder and also a locket and cash of Rs.100/150
from him. Then they asked the complainant, who was in possession of
the keys of the almirah, noticing the keys were in her hand bag, when
she opened her hand bag to pay some cash to a juiceman. The intruders
forced her to handover the keys of the almirah by threatening to shoot
at her as well as her children with the revolver. Thereafter, they
robbed cash kept in the almirah to the tune of Rs.15000/- and another
sum of Rs.2,50,000/- in the locker and also a mobile phone and jewels
kept in the almirah. They also stated to have removed Valiya, a gold
chain and three rings which the complainant was wearing. After robbing
of the complainant’s cash and jewels and other materials when the
appellant attempted to molest the complainant the deceased stated to
have raised a protest at which point of time the appellant stated to
have shouted at the deceased by saying that he was talking too much by
pointing the revolver towards him and shot him which snatched away the
life of the deceased. According to the complainant, thereafter, they
bolted the door from outside the house and left the scene of
occurrence.
11. This sequence was consistently maintained by complainant – PW.17
before the Court which was fully supported by the other eye-witnesses,
namely, PWs.19, 20, 23 and 25.
When it came to the question of
identifying the accused, out of the three only two, appellant and co-
accused alone, were apprehended and proceeded against and they were in
Court. Since the other accused was absconding and continue to abscond
even as on date the trial Court proceeded with the trial.
When it came
to the question of such identification, the judgment of the trial
Court as well as that of the High Court has elaborately considered and
found that while the other witnesses could not identify the appellant
and the other co-accused even in the Court. PW.20 was able to identify
the appellant as the person who attempted to molest the complainant –
PW.17 and when the deceased raised a protest the appellant shot him
and thereafter the deceased fell down.
Unfortunately, on 18.09.2000,
the trial Court adjourned the case for cross-examination of PW.20 by
two months. His cross-examination was conducted only on 18.11.2000 as
the case was adjourned. The reason for the adjournment was a mere
request on behalf of the appellant that his counsel was busy in the
High Court. The High Court in the impugned judgment has stated that
such a long adjournment provided scope for maneuvering.
12. In the course of cross-examination PW.20 made a different statement as
regards the identity of the appellant by stating that he was tutored
by Inspector Rajinder Gautam who met him before his examination-in-
chief. In the light of the said development it was contended on behalf
of the appellant that irrespective of the crime as described by the
eye-witnesses taken place on the fateful day there was absolutely no
legally acceptable evidence to connect the appellant with the crime.
Learned counsel relied upon Section 155 of the Evidence Act in support
of his submission.
The learned counsel also relied upon the decisions
reported in Paramjeet Singh (supra) and Suraj Mal (supra). We can also
refer to some of the decisions reported in Kunju Muhammed alias
Khumani and another V. State of Kerala - (2004) 9 SCC 193, Nisar Khan
alias Guddu and others V. State of Uttaranchal - (2006) 9 SCC 386,
Mukhtiar Ahmed Ansari V. State (NCT of Delhi) - (2005) 5 SCC 258 and
Raja Ram V. State of Rajasthan - (2005) 5 SCC 272 in respect of the
said proposition of law.
13. Both the trial Court as well as the High Court ignored the
inconsistency in the statement of PW.20 as regards the identity of the
appellant and proceeded to rely upon what was stated by him in the
chief-examination while convicting the appellant and ultimately
imposing him the sentence. It is relevant to mention that the
appellant as well as the co-accused were charged under Section 392 IPC
as well apart from the charge under Section 302 read with 34 IPC. In
fact, we find from the judgment of the trial Court that specific
charge was framed against the appellant for the offences under
Sections 302 read with 34 and 392 read with 34 IPC. They were charged
under Section 354 read with 34 IPC and were acquitted for the said
offence.
14. As we come back to the offence alleged against the appellant, as noted
earlier, the charge was both under Section 302 read with 34 and 392
read with 34 IPC. Leaving aside the identity aspect dealt with by the
Courts below, as far as the appellant and the other accused are
concerned, another important factor which weighed with the Courts
below to find them guilty was the identity of the materials which were
recovered from the appellant and the co-accused on 03.11.1998 when the
appellant and the other accused were arrested under the Arms Act. A
‘Rado watch’ and a ‘gold chain’ were recovered from the personal
search of the appellant. Search was conducted by S.I. A.S. Rawat who
was examined as PW.14. He testified such fact that the said recovery
was made by him from the person of the appellant. PW.17 clearly
identified both the articles as belonging to her which were stealthily
removed from her possession. In so far as the said part of evidence is
concerned (viz), as regards the recovery, it was contended that no
public witness was joined at the time of arrest of the accused in
spite of prior information which was available with the police. The
said contention was rightly rejected by both the Courts below as
unsustainable.
15. As far as the identity of the recovery of articles was concerned, the
version of PW.14 was unassailable. It was only contended that the
identity by PW.17, as regards the ‘Rado watch’, cannot be relied upon
inasmuch as the same was not mentioned in the FIR. Here again, the
Courts below righty rejected the said argument inasmuch as it was a
very minor discrepancy and on that score such a diabolic offence
committed by the accused cannot be ignored. The other contention that
the material objects were shown to PW.17 is also trivial and that does
not cause any serious dent in the case of the prosecution. In the said
circumstance it was for the appellant to explain as to how he came
into possession of the articles whether it was owned by him or in what
other manner those articles came into his possession. In this respect
it was noted by the Courts below that in his statement under Section
313 Cr.P.C he did not even attempt to explain it away or claim
ownership. He stated to have simply denied of the recovery made from
him. In such circumstances, recoveries from the appellant along with
the co-accused having been proved in the manner known to law, those
were well established incriminating circumstances demonstrated before
the Courts below and there was no contra evidence for the appellant
and the co-accused to get rid off the offences alleged. Having regard
to the said piece of evidence relating to the recoveries prevailing on
record the presence of the appellant along with the co-accused at the
place of occurrence in the manner described by the witnesses, namely,
PWs.17, 19, 20, 23 and 25 was clinching enough to rope in the
appellant along with the co-accused in the commission of the crime as
alleged in the complaint and found proved against both of them.
16. At this juncture we feel it appropriate to refer certain conclusions
of the trial Court as well as the High Court as regards the recoveries
from the appellant and the co-accused to add credence to our
conclusions. Such conclusions of the trial Court are found in
paragraphs 18 to 27. The relevant portions are found in paragraphs 2,
18, 26 and 27. In the rest of the paragraphs, namely, 19 to 24 the
trial Judge has referred to the decisions of this Court reported in
State of Punjab V. Wassan Singh and others - AIR 1981 SC 697, Sohrab
and another V. State of Madhya Pradesh - AIR 1972 SC 2020, Appabhai
and another V. State of Gujarat - AIR 1988 SC 696, Bharwada Bhoginbhai
Hirjibhai V. State of Gujarat - AIR 1983 SC 753, Sanjay alias Kaka V.
State (NCT of Delhi) - 2001-(CR)-GJX-0071-SC, Ezhil & Ors. V. State of
Tamil Nadu - 2002 II A.D. (Cr.) S.C. 613, State of Maharashtra V.
Suresh - (2000) 1 SCC 471, Nallabothu Venkaiah V. State of Andhra
Pradesh - 2002 VI AD (S.C.) 521. The relevant findings are found in
paragraphs 2, 18, 26 and 27 which read as under:
“2. ….During personal search of accused Akil one Rado wrist
watch and one gold chain were also recovered which were seized
vide memo Ex.PW.14/A after being sealed with the seal of ASR.
The articles were got identified from Smt. Shama Parveen before
Sh. S.K. Sharma, Ld. M.M. on 28.1.99. Thus, the police pinned
the murder and robbery upon them and booked them under sections
392/354/302/411/34 IPC. On 5.11.98, I.O. Inspector Rajinder
Singh moved an application for holding test identification
parade of both the accused persons. Both the accused refused to
join TIP.
18. ….In the instant case SI A.S. Rawat stated that one
country made pistol, two live cartridges, one rado watch and
golden watch were recovered from accused Akil @ Javed. However,
SI Jasod Singh stated that a golden chain was recovered from
accused Murslim. The recovery memo shows that their goods were
recovered from the possession of accused Akil.
26. The last submission made by the Ld. defence counsel was
that no reliance should be placed on the identification parade
of the goods in question because Shama Parveen, PW2, stated that
she had identified the goods in the police station before
joining the T.I.P.
27. If these goods do not belong to Smt. Shama Parveen, why
did not the accused claim it? To whom these goods belong? In the
court Shama Parveen has clearly, specifically and unequivocally
stated that these goods belonged to her. Nobody has disputed
this fact. The T.I.P. of goods like watch or chain is not that
necessary. Such like goods can be identified by a person who
uses it everyday. Identification or non-identification of such
like goods before the T.I.P. is meaningless and does not carry
much weight.”
17. The High Court on its part has stated as under in paragraphs 10, 24,
25, 26, 27, 28 and 30.
“10. Before we proceed to deal with the submissions as referred
to above, what needs to be emphasized is that during arguments
before us, it was not the case of the appellants that on the day
of the commission of the offence, Shama Parveen and deceased
Salvinder were not present in house No. A-32/15, Main Road
no.66, Mauzpur, Delhi. It was also not their case that no
robbery had taken place or Salvinder had not been murdered. We
say so since on these aspects the witnesses for the prosecution
were not subjected to cross-examination by the appellants. Even
otherwise, the fact that Shama Parveen and Salvinder were
present at the above mentioned house, the further fact that
three persons had barged into that house, robbed the lady of her
jewellery and other items, and thereafter, tried to outrage her
modesty which when objected to by Salvinder cost him his life at
the hands of one of the intruders, stand proved beyond doubt
from the statements of PW- 17- Shama Parveen, PW-19 Gurmeet
Singh, PW- 23 Noorjahan and PW-25 Smt. Gurdeep Kaur, all of
whom, by and large deposed as per the FIR lodged by Shama
Parveen to the police soon after the incident. Thus, to that
extent, we would be justified in saying that there was no
challenge to the prosecution version. We may say at the cost of
repetition that the only defense taken by the accused persons
was that they were not the persons who committed either the
robbery or the murder of Salvinder.
24. It is in evidence that on 3rd November, 1998 when the
appellants were arrested under the Arms Act, certain recoveries
were made from their persons. We are here concerned with the
`Rado wrist’ watch and a `gold chain’ which were recovered from
the personal search of accused Akil. It was S.I. A. S. Rawat who
had conducted the personal search of the said accused after he
was apprehended at Sunlight Colony. He appeared before the Trial
Judge as PW-14 and testified to the effect that he recovered a
`Rado’ wrist watch and a gold chain from the person of accused
Akil. It was not the case of appellant Akil that the said `Rado’
wrist watch or gold chain were owned by him. Even in his
statement recorded under Section 313 Cr. P.C, he made no such
claim. He simply denied that any recovery was made from him. On
the other hand, Shama Parveen, identified the two articles and
claimed that they belonged to her. The recovery of articles
Therefore stands proved from the evidence of these two
witnesses.
25. It was next submitted by the learned counsel for the
appellants that the prosecution though examined three witnesses
namely, SI Satyajit Sareen (PW-3), SI Jasood Singh (PW-18) and
SI A. S. Rawat (PW-14) to prove the recovery of ‘Rado’ wrist
watch and ‘gold chain’ from accused Akil but it was only SI
A.S.Rawat who spoke about the recovery of those articles from
the accused. The other two were silent about the same. It was
therefore contended that had the recoveries been actually
effected as claimed by the prosecution all the three witnesses
would have spoken about the same. Responding to the contention,
it was submitted by learned counsel for the State, Ms. Mukta
Gupta, that after the apprehension of both the appellants, the
raiding party got divided into two groups and the search of the
two appellants was taken separately. One raiding party was
headed by SI Satyajit Sareen and the other by SI A. S. Rawat. It
was for this reason that SI Satyajit Sareen was silent about the
recovery effected from accused Akil. Learned counsel also
pointed out that SI Jasood Singh was in the raiding party headed
by SI Satyajit Sareen and that is why, he too was silent with
regard to the recovery of a `Rado’ wrist watch and a gold chain.
The Explanation so tendered by the counsel is borne out from the
evidence of SI Satyajit Sareen and SI Jasood Singh.
26. It was also contended by the learned counsel for the
appellants that the recovery of a `Rado’ wrist watch and a ‘gold
chain’ were liable to be disbelieved because no public witness
was joined at the time the accused persons were arrested, even
though, police had prior information of their arrival. The mere
fact of non-joining a public witness, to our mind, will not ipso-
facto make the evidence of the police witnesses suspect,
unreliable or untrustworthy. In any case, we find from the
evidence of SI Satyajit Sareen that after receiving the secret
information, the police did make efforts to join public
witnesses in the raiding party. As per him, they requested 4-5
passersby to join them but they all offered reasonable excuses
for not joining. Significantly, no suggestion was put to PW-3
Satyajit Sareen in cross-examination that no public witness was
asked to join the raiding party.
27. ….In the present case, as noticed above, SI Satyajit
Sareen has specifically deposed that the persons from the public
were asked to join the raiding party but none agreed. The facts
of the two cases are therefore not comparable.
28. It was further contended by counsel for the appellant that
before the complainant Shama Parveen identified the `Rado’ wrist
watch and ‘gold chain’ before the Metropolitan Magistrate, Shri
S. K. Sharma (PW-13) those articles were shown to her in the
Police Station. In support, reference was made to the cross-
examination of Shama Parveen, where she has stated that these
two items were shown to her in the Police Station and it was
thereafter that she had identified those items in the Court.
While it is true that Shama Parveen did say so in her cross-
examination but we are not inclined to attach much importance to
it. The reason is that PW-14 SI A.S. Rawat who conducted the
personal search of appellant Akil stated in his evidence that
after the articles were recovered from him, they were kept in a
parcel and were sealed with the seal of ASR. On the other hand,
the Metropolitan Magistrate PW-13 who conducted the TIP stated
in his evidence that when the case property was produced before
him for getting it identified, it was found sealed with the seal
of ASR. The evidence of these two witnesses when read together
goes to show that the seal was intact and it was opened only
before the Metropolitan Magistrate. In this context, the
evidence of Head Constable Purushotam Kumar PW 28 is also
relevant. As per him, on 3.11.1998, the special staff of N/E had
deposited in the Malkhana of police station Seemapuri, amongst
other articles, a chain and a `Rado’ watch regarding which
entries were made at Serial no. 3363 and 3364 of the Malkhana
register. It was further deposed by him that on 28th January,
1999, the chain and the `Rado’ wrist watch were transferred from
the Malkhana of police station Seemapuri to the Malkhana of
Police Station Seelampur vide Serial no. 3363 in connection with
the case FIR No.777/98 under Sections 392/354 IPC. It follows
from the testimony of this witness that the case property
containing the `Rado’ wrist watch and ‘gold chain’ all through
remained in the police station Seemapuri, till it was
transferred to Police Station Seelampur on 28th January, 1999
and on that very day, the TIP was got done before the
Metropolitan Magistrate. Where then was there any occasion for
the Investigating Officer of this case to show the case property
to Shama Parveen in the Police Station before it was got
identified by her? In any case, assuming it was so shown, how
does this fact falsify her claim that the `Rado’ wrist watch and
the chain belonged to her? Once she had identified the articles
as belonging to her the onus to prove that they did not belong
to her or that they belonged to Akil or if they did not belong
to him how he came to be in possession of the same, was on none
else than Akil. He having failed to discharge that onus we find
no reason to disbelieve Shama Parveen, moreso, as Akil has not
claimed those articles to be his.
30. In view of Section 8, the conduct of accused Akil in having
been found in possession of the robbed articles is a relevant
fact which also connects him, as well as, accused Murasalin with
the crime for they both worked as a team which is further borne
out from the fact that they were found together when arrested in
the case under the Arms Act and when the recovery of ‘Rado’
wrist watch and ‘gold chain’ was made.”
(Emphasis added)
18. Having regard to the above conclusions of the Courts below, with which
we fully concur, we are convinced that the conviction and sentence
imposed on the appellant was well justified and we do not find any
good grounds to interfere with the same.
19. In the earlier part of our judgment we have referred to the reliance
placed upon by the trial Court as well as by the High Court on the
evidence of PW.20 as regards the identity of the appellant. Both the
Courts had made a pointer to the adjournment granted at the instance
of the accused for the cross-examination of PW.20. The chief-
examination of PW.20 was recorded on 18.09.2000 and for the purpose of
cross-examination the case was adjourned by two months and was posted
on 18.11.2000. The reason for adjournment was a request on behalf of
the appellant that his counsel was busy in the High Court. PW.20
identified the appellant as the person who attempted to molest the
complainant PW.17 and that when the same was questioned by the
deceased the appellant shot at him who fell down on the bed and who
was later declared dead by the doctors. However, in the cross-
examination PW.20 stated that the identity of the appellant on the
earlier occasion was at the instance of Inspector Rajinder Gautam who
tutored him to make such a statement.
20. It is also relevant to note that the said witness was not treated as a
hostile witness in spite of diametrically opposite version stated by
him as regards the identity of the appellant. Nevertheless, both the
Courts below proceeded to hold that the identity made by PW.20 cannot
be ignored. By relying upon Section 155 of the Evidence Act and also
the decision reported in Paramjeet Singh alias Pamma (supra) and Suraj
Mal (supra) learned counsel for the appellant contended that such a
testimony of the witness is wholly unreliable. In Paramjeet Singh
alias Pamma (supra), this Court held that howsoever gruesome an
offence may be and revolt the human conscience, an accused can be
convicted only on legal evidence and not on surmises and conjecture.
In the decision reported in Suraj Mal (supra) it was held that where
witnesses make two inconsistent statements in their evidence either at
one stage or at two stages, the testimony of such witnesses become
unreliable and unworthy of credence and in the absence of special
circumstance no conviction can be based on the evidence of such
witnesses.
21. Apart from the above decisions relied upon by learned counsel for the
appellant, we ourselves have noted in the decisions reported in Kunju
Muhammed alias Khumani (supra), Nisar Khan alias Guddu (supra),
Mukhtiar Ahmed Ansari (supra), Raja Ram (supra), wherein this Court
has specifically dealt with the issue as regards hostile witness who
was not treated hostile by the prosecution and now such evidence would
support the defence (i.e.) the benefit of such evidence should go to
the accused and not to the prosecution. In paragraph 16 of the
decision reported in Kunju Muhammed alias Khumani (supra), this Court
has held as under:
“16. We are at pains to appreciate this reasoning of the High
Court. This witness has not been treated hostile by the
prosecution, and even then his evidence helps the defence. We
think the benefit of such evidence should go to the accused and
not to the prosecution. Therefore, the High Court ought not to
have placed any credence on the evidence of such unreliable
witness.”
22. In Nisar Khan alias Guddu (supra) in paragraph 9 this Court has held
as under:
“9….We are of the view that no reasonable person properly
instructed in law would allow an application filed by the
accused to recall the eyewitnesses after a lapse of more than
one year that too after the witnesses were examined, cross-
examined and discharged.”
23. In Mukhtiar Ahmed Ansari (supra), this Court in paragraphs 29 and 30
dealt with the hostile witness who was not declared hostile and the
extent to which the version of the said witness can be relied upon as
under:
“29. The learned counsel for the appellant also urged that it
was the case of the prosecution that the police had
requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash
Goel had been examined as a prosecution witness in this case as
PW 1. He, however, did not support the prosecution. The
prosecution never declared PW 1 “hostile”. His evidence did not
support the prosecution. Instead, it supported the defence. The
accused hence can rely on that evidence.
30. A similar question came up for consideration before this
Court in Raja Ram v. State of Rajasthan. In that case, the
evidence of the doctor who was examined as a prosecution witness
showed that the deceased was being told by one K that she should
implicate the accused or else she might have to face
prosecution. The doctor was not declared “hostile”. The High
Court, however, convicted the accused. This Court held that it
was open to the defence to rely on the evidence of the doctor
and it was binding on the prosecution.”
24. In the decision reported in Raja Ram (supra) a similar issue was dealt
with in paragraph 9 and was held as under:
“9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another
neighbour, cannot easily be surmounted by the prosecution. He
has testified in very clear terms that he saw PW 5 making the
deceased believe that unless she puts the blame on the appellant
and his parents she would have to face the consequences like
prosecution proceedings. It did not occur to the Public
Prosecutor in the trial court to seek permission of the court to
heard (sic declare) PW 8 as a hostile witness for reasons only
known to him. Now, as it is, the evidence of PW 8 is binding on
the prosecution. Absolutely no reason, much less any good
reason, has been stated by the Division Bench of the High Court
as to how PW 8's testimony can be sidelined.”
25. We have referred to the above legal position relating to the extent of
reliance that can be placed upon a hostile witness who was not
declared hostile and in the same breath, the dire need for the Courts
dealing with cases involving such a serious offence to proceed with
the trial commenced on day to day basis in de die in diem until the
trial is concluded. We wish to issue a note of caution to the trial
Court dealing with sessions case to ensure that there are well settled
procedures laid down under the Code of Criminal Procedure as regards
the manner in which the trial should be conducted in sessions cases in
order to ensure dispensation of justice without providing any scope
for unscrupulous elements to meddle with the course of justice to
achieve some unlawful advantage. In this respect, it is relevant to
refer to the provisions contained in Chapter XVIII of the Criminal
Procedure Code whereunder Section 231 it has been specifically
provided that on the date fixed for examination of witnesses as
provided under Section 230, the Session’s Judge should proceed to take
all such evidence as may be produced in support of the prosecution and
that in his discretion may permit cross-examination of any witnesses
to be deferred until any other witness or witnesses have been examined
or recall any witness for further cross-examination.
26. Under Section 309 of Cr.P.C. falling under Chapter XXIV it has been
specifically stipulated as under:
“309. Power to postpone or adjourn proceedings.—(1) In every
inquiry or trial, the proceedings shall be held as expeditiously
as possible, and in particular, when the examination of
witnesses has once begun, the same shall be continued from day
to day until all the witnesses in attendance have been examined,
unless the court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence
under Sections 376 to Section 376 D of the Indian Penal Code (45
of 1860), the inquiry or trial shall, as far as possible, be
completed within a period of two months from the date of
commencement of the examination of witnesses.
(2) If the court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or trial,
it may, from time to time, for reasons to be recorded, postpone
or adjourn the same on such terms as it thinks fit, for such
time as it considers reasonable, and may by a warrant remand the
accused if in custody:
Provided that no Magistrate shall remand an accused person to
custody under this section for a term exceeding fifteen days at
a time:
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without examining
them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him.
Explanation 1 – If sufficient evidence has been obtained to
raise a suspicion that the accused may have committed an offence
and it appears likely that further evidence may be obtained by a
remand this is a reasonable cause for a remand.
Explanation 2 – The terms on which an adjournment or
postponement may be granted include, in appropriate cases, the
payment of costs by the prosecution or the accused.”
27. In this context it will also be worthwhile to refer to a circular
issued by the High Court of Delhi in Circular No.1/87 dated 12th
January 1987. Clause 24A of the said circular reads as under:
“24A disturbing trend of trial of Sessions cases being
adjourned, in some cases to suit convenience of counsel and in
some others because the prosecution is not fully ready, has come
to the notice of the High Court. Such adjournments delay
disposal of Sessions cases.
The High Court considers it necessary to draw the attention of
all the Sessions Judges and Assistant Sessions Judges once again
to the following provisions of the Code of Criminal Procedure,
1973, Criminal Rules of Practice, Kerala, 1982 and Circulars and
instructions on the list system issued earlier, in order to
ensure the speedy disposal of Sessions cases.
1.(a) In every enquiry or trial, the proceedings shall be held
as expeditiously as possible, and, in particular, when the
examination of witnesses has once begun, the same shall be
continued from day to day until all the witnesses in attendance
have been examined, unless the court finds the adjournment of
the same beyond the following day to be necessary for reasons to
be recorded. (Section 309 (1) Crl.P.C.).
(b) After the commencement of the trial, if the court finds it
necessary or advisable to postpone the commencement of, or
adjourn, any inquiry or trial, it may, from time to time, for
reasons to be recorded postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers
reasonable. If witnesses are in attendance no adjournment or
postponement shall be granted, without examining them, except
for special reasons to be recorded, in writing. (Section 309 (2)
Cr.P.C.).
2. Whenever more than three months have elapsed between
the date of apprehension of the accused and the close of the
trial in the Court of Sessions, an explanation of the cause of
delay, (in whatever court it may have occurred) shall be
furnished, while transmitting the copy of the judgment.
(Rule 147 Crl. Rules of Practice).
3. Sessions cases should be disposed of within six weeks of
their institution, the date of commitment being taken as the
date of institution in Sessions Cases. Cases pending for longer
periods should be regarded as old cases in respect of which
explanations should be furnished in the calendar statements and
in the periodical returns. (High Court Circular No. 25/61 dated
26th October 1961).
4. Sessions cases should be given precedence over all other work
and no other work should be taken up on sessions days until the
sessions work for the day is completed. A Sessions case once
posted should not be postponed unless that is unavoidable, and
once the trial has begun, it should proceed continuously from
day to day till it is completed. If for any reason, a case has
to be adjourned or postponed, intimation should be given
forthwith to both sides and immediate steps be taken to stop the
witnesses and secure their presence on the adjourned date.
On receipt of the order of commitment the case should be posted
for trial to as early a date as possible, sufficient time, say
three weeks, being allowed for securing the witnesses.
Ordinarily it should be possible to post two sessions cases a
week, the first on Monday and the second on Thursday but
sufficient time should be allowed for each case so that one case
does not telescope into the next. Every endeavour should be
made to avoid telescoping and for this, if necessary, the court
should commence sitting earlier and continue sitting later than
the normal hours. Judgment in the case begun on Monday should
ordinarily be pronounced in the course of the week and that
begun on Thursday the following Monday. (Instructions on the
list system contained in the O.M. dated 8th March 1984).
All the Sessions Judges and the Assistant Sessions Judges are
directed to adhere strictly to the above provisions and
instructions while granting adjournments in Sessions Cases.
28. In this context some of the decisions which have specifically dealt
with such a situation which has caused serious inroad into the
criminal jurisprudence can also be referred to. In one of the earliest
cases reported in Badri Prasad V. Emperor - (1912) 13 Crl. L.J. 861, a
Division Bench of the Allahabad High Court has stated the legal
position as under:
“….Moreover, we wish to point out that it is most inexpedient
for a Sessions trial to be adjourned. The intention of the Code
is that a trial before a Court of Session should proceed and be
dealt with continuously from its inception to its finish.
Occasions may arise when it is necessary to grant adjournments,
but such adjournments should be granted only on the strongest
possible ground and for the shortest possible period…..
(Emphasis added)
29. In a decision reported in Chandra Sain Jain and others V. The State -
1982 Crl. L.J. NOC 86 (ALL) a Single Judge has held as under while
interpreting Section 309 of Cr.P.C.
“Merely because the prosecution is being done by C.B.I. or by
any other prosecuting agency, it is not right to grant
adjournment on their mere asking and the Court has to justify
every adjournment if allowed, for, the right to speedy trial is
part of fundamental rights envisaged under Art. 21 of the
Constitution, 1979 Cri LJ 1036 (SC), Foll.”
(Emphasis added)
30. In the decision reported in The State V. Bilal Rai and others - 1985
Crl. L.J. NOC 38 (Delhi) it has been held as under:
“When witnesses of a party are present, the court should make
every possible endeavour to record their evidence and they
should not be called back again. The work fixation of the Court
should be so arranged as not to direct the presence of witnesses
whose evidence cannot be recorded. Similarly, cross-examination
of the witnesses should be completed immediately after the
examination in chief and if need be within a short time
thereafter. No long adjournment should be allowed. Once the
examination of witnesses has begun the same should be continued
from day to day.”
(Emphasis added)
31. In the decision reported in Lt. Col. S.J. Chaudhary V. State (Delhi
Administration) - (1984) 1 SCC 722, this Court in paragraphs 2 and 3
has held as under:
“2. We think it is an entirely wholesome practice for the trial
to go on from day-to-day. It is most expedient that the trial
before the Court of Session should proceed and be dealt with
continuously from its inception to its finish. Not only will it
result in expedition, it will also result in the elimination of
manoeuvre and mischief. It will be in the interest of both the
prosecution and the defence that the trial proceeds from day-to-
day. It is necessary to realise that Sessions cases must not be
tried piecemeal. Before commencing a trial, a Sessions Judge must
satisfy himself that all necessary evidence is available. If it
is not, he may postpone the case, but only on the strongest
possible ground and for the shortest possible period. Once the
trial commences, he should, except for a very pressing reason
which makes an adjournment inevitable, proceed de die in diem
until the trial is concluded.
3. We are unable to appreciate the difficulty said to be
experienced by the petitioner. It is stated that his Advocate is
finding it difficult to attend the court from day-to-day. It is
the duty of every Advocate, who accepts the brief in a criminal
case to attend the trial from day-to- day. We cannot over-stress
the duty of the Advocate to attend to the trial from day-to-day.
Having accepted the brief, he will be committing a breach of his
professional duty, if he so fails to attend. The criminal
miscellaneous petition is, therefore, dismissed.”
(Emphasis added)
32. In a recent decision of the Delhi High Court reported in State V. Ravi
Kant Sharma and Ors. - 120 (2005) DLT 213, a Single Judge of the High
Court has held as under in paragraph 3:
“3. True the Court has discretion to defer the cross-
examination. But as a matter of rule, the Court cannot orders in
express terms that the examination-in-chief of the witnesses is
recorded in a particular month and his cross-examination would
follow in particular subsequent month. Even otherwise it is the
demand of the criminal jurisprudence that criminal trial must
proceed day-to-day. The fixing of dates only for examination-in-
chief of the lengthy witnesses and fixing another date i.e. 3
months later for the purposes of cross-examination is certainly
against the criminal administration of justice. Examination-in-
chief if commenced on a particular date, the Trial Judge has to
ensure that his cross-examination must conclude either on the
same date or the next day if cross-examination is lengthy or can
continue on the consecutive dates. But postponing the cross-
examination to a longer period of 3 month is certainly bound to
create legal complications as witnesses whose examination-in-
chief recorded earlier may insist on refreshing their memory and
therefore such an occasion should not be allowed to arise
particularly when it is the demand of the criminal law that
trial once commence must take place on day-to-day basis. For
these reasons, the order passed by the learned Additional
Sessions Judge to that extent will not hold good in the eyes of
law and therefore the same is liable to be set aside. Set aside
as such. Learned Additional Sessions Judge should refix the
schedule of dates of examination of prosecution witnesses and
shall ensure that examination-in-chief once commences cross-
examination is completed without any interruption.”
(Emphasis added)
33. In a comprehensive decision of this Court reported in State of U.P. V.
Shambhu Nath Singh and others - (2001) 4 SCC 667 the legal position on
this aspect has been dealt with in extenso. Useful reference can be
made to paragraphs 10, 11 to 14 and 18:
“10. Section 309 of the Code of Criminal Procedure (for short
“the Code”) is the only provision which confers power on the
trial court for granting adjournments in criminal proceedings.
The conditions laid down by the legislature for granting such
adjournments have been clearly incorporated in the section. It
reads thus:
309. xxxx xxxx xxxx
11. The first sub-section mandates on the trial courts that
the
proceedings shall be held expeditiously but the words “as
expeditiously as possible” have provided some play at the joints
and it is through such play that delay often creeps in the
trials.
Even so, the next limb of the sub-section sounded for a
more vigorous stance to be adopted by the court at a further
advanced stage of the trial.
That stage is when examination of
the witnesses begins. The legislature which diluted the vigour
of the mandate contained in the initial limb of the sub-section
by using the words “as expeditiously as possible” has chosen to
make the requirement for the next stage (when examination of the
witnesses has started) to be quite stern.
Once the case reaches
that stage the statutory command is that such examination “shall
be continued from day to day until all the witnesses in
attendance have been examined”.
The solitary exception to the
said stringent rule is, if the court finds that adjournment
“beyond the following day to be necessary” the same can be
granted for which a condition is imposed on the court that
reasons for the same should be recorded.
Even this dilution has
been taken away when witnesses are in attendance before the
court. In such situation the court is not given any power to
adjourn the case except in the extreme contingency for which the
second proviso to sub-section (2) has imposed another condition,
“provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without examining
them, except for special reasons to be recorded in writing”.
(emphasis supplied)
12. Thus, the legal position is that once examination of
witnesses started, the court has to continue the trial from day
to day until all witnesses in attendance have been examined
(except those whom the party has given up). The court has to
record reasons for deviating from the said course. Even that is
forbidden when witnesses are present in court, as the
requirement then is that the court has to examine them. Only if
there are “special reasons”, which reasons should find a place
in the order for adjournment, that alone can confer jurisdiction
on the court to adjourn the case without examination of
witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common
practice and regular occurrence that trial courts flout the said
command with impunity. Even when witnesses are present, cases
are adjourned on far less serious reasons or even on flippant
grounds. Adjournments are granted even in such situations on the
mere asking for it. Quite often such adjournments are granted to
suit the convenience of the advocate concerned. We make it clear
that the legislature has frowned at granting adjournments on
that ground. At any rate inconvenience of an advocate is not a
“special reason” for bypassing the mandate of Section 309 of the
Code.
14. If any court finds that the day-to-day examination of
witnesses mandated by the legislature cannot be complied with
due to the non-cooperation of the accused or his counsel the
court can adopt any of the measures indicated in the sub-section
i.e. remanding the accused to custody or imposing cost on the
party who wants such adjournments (the cost must be commensurate
with the loss suffered by the witnesses, including the expenses
to attend the court). Another option is, when the accused is
absent and the witness is present to be examined, the court can
cancel his bail, if he is on bail (unless an application is made
on his behalf seeking permission for his counsel to proceed to
examine the witnesses present even in his absence provided the
accused gives an undertaking in writing that he would not
dispute his identity as the particular accused in the case).
18. It is no justification to glide on any alibi by blaming the
infrastructure for skirting the legislative mandates embalmed in
Section 309 of the Code. A judicious judicial officer who is
committed to his work could manage with the existing
infrastructure for complying with such legislative mandates. The
precept in the old homily that a lazy workman always blames his
tools, is the only answer to those indolent judicial officers
who find fault with the defects in the system and the
imperfections of the existing infrastructure for their tardiness
in coping with such directions.”
(Emphasis added)
34. Keeping the various principles, set out in the above decisions, in
mind when we examine the situation that had occurred in the case on
hand where PW.20 was examined-in-chief on 18.09.2000 and was cross
examined after two months i.e. on 18.11.2000 solely at the instance of
the appellant’s counsel on the simple ground that the counsel was
engaged in some other matter in the High Court on the day when PW.20
was examined-in-chief, the adjournment granted by the trial Court at
the relevant point of time only disclose that the Court was oblivious
of the specific stipulation contained in Section 309 of Cr.P.C. which
mandate the requirement of sessions trial to be carried on a day to
day basis. The trial Court has not given any reason much less to state
any special circumstance in order to grant such a long adjournment of
two months for the cross-examination of PW.20. Everyone of the caution
indicated in the decision of this Court reported
in Rajdeo Sharma V.
State of Bihar - 1998 Crl. L.J. 4596 was flouted with impunity. In the
said decision a request was made to all the High Courts to remind all
the trial Judges of the need to comply with Section 309 of the Code in
letter and spirit. In fact, the High Courts were directed to take note
of the conduct of any particular trial Judge who violates the above
legislative mandate and to adopt such administrative action against
the delinquent judicial officer as per the law.
35. It is unfortunate that in spite of the specific directions issued by
this Court and reminded once again in Shambhu Nath (supra) such
recalcitrant approach was being made by the trial Court unmindful of
the adverse serious consequences affecting the society at large
flowing therefrom.
Therefore, even while disposing of this appeal by
confirming the conviction and sentence imposed on the appellant by the
learned trial Judge, as confirmed by the impugned judgment of the High
Court, we direct the Registry to forward a copy of this decision to
all the High Courts to specifically follow the instructions issued by
this Court in the decision reported in Rajdeo Sharma (supra) and
reiterated in Shambhu Nath (supra) by issuing appropriate circular, if
already not issued. If such circular has already been issued, as
directed, ensure that such directions are scrupulously followed by the
trial Courts without providing scope for any deviation in following
the procedure prescribed in the matter of a trial of sessions cases as
well as other cases as provided under Section 309 of Cr.P.C.
In this
respect, the High Courts will also be well advised to use their
machinery in the respective State Judicial Academy to achieve the
desired result. We hope and trust that the respective High Courts
would take serious note of the above directions issued in the
decisions reported in Rajdeo Sharma (supra) which has been extensively
quoted and reiterated in the subsequent decision of this Court
reported in Shambhu Nath (supra) and comply with the directions at
least in the future years.
36. In the result, while we upheld the conviction and sentence imposed on
the appellant, we issue directions in the light of the provisions
contained in Section 231 read along with Section 309 of Cr.P.C. for
the trial Court to strictly adhere to the procedure prescribed therein
in order to ensure speedy trial of cases and also rule out the
possibility of any maneuvering taking place by granting undue long
adjournment for mere asking. The appeal stands dismissed.
...........................J.
[Swatanter Kumar]
..................................J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
December 06, 2012
ITEM NO.1A COURT NO.8 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 1735 OF 2009
AKIL @ JAVED Appellant (s)
VERSUS
STATE OF NCT OF DELHI Respondent(s)
Date: 06/12/2012 This Appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Subramonium Prasad,Adv.
For Respondent(s) Mrs Anil Katiyar,Adv.
Hon'ble Mr. Justice Fakkir Mohamed Ibrahim Kalifulla
pronounced the judgment of the Bench comprising of Hon'ble Mr.
Justice Swatanter Kumar and His Lordship.
Appeal is dismissed in terms of the signed reportable
judgment.
(O.P. Sharma) (M.S. Negi)
Court Master Court Master
(Signed reportable judgment is placed on the file)
