Supreme Court of India
AKIL@ JAVEDversusSTATE OF NCT OF DELHI
- Citation
- 2012 INSC 567
- Decided
- 6 December 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
The conviction under IPC s.302/34 and s.392/34 is upheld as the eyewitness testimony, identification of stolen items, and recoveries provide sufficient legal evidence despite procedural irregularities.
Summary
The appellant Akil @ Javed was convicted for murder (IPC s.302) and robbery (IPC s.392) along with a co‑accused. The prosecution relied on the testimony of several eye‑witnesses, especially PW‑20 who identified the appellant, and on the recovery of a Rado watch and gold chain from the appellant that were identified by the victim as stolen. The appellant argued that PW‑20 turned hostile, that the identification was unreliable, and that the recovered items were not properly linked to the crime. The Supreme Court held that the convergence of eyewitness accounts, the identification of the stolen articles, and the appellant’s failure to explain possession of the items sufficed to sustain the conviction. Although the two‑month adjournment for cross‑examining PW‑20 violated the speedy‑trial provisions of CrPC ss.231 and 309, the Court ruled that the procedural lapse did not prejudice the verdict. Consequently, the conviction and sentence were upheld.
Issues considered
- The adequacy of PW‑20’s testimony despite his alleged hostile stance and inconsistent statements.
- Whether the recovered watch and gold chain, identified by the victim, constitute sufficient incriminating evidence.
- The applicability of CrPC sections 231 and 309 regarding adjournments and the requirement of a day‑to‑day trial.
- Whether the trial court erred in not formally declaring PW‑20 as a hostile witness.
- Whether the conviction under IPC sections 302/34 and 392/34 is sustainable on the evidence presented.
Legislation cited
- Code of Criminal Procedure, 1973s. 230, s. 231, s. 309
- Indian Evidence Act, 1872s. 155
- Indian Penal Code, 1860s. 302, s. 34, s. 354, s. 392, s. 411
Subjects
murderrobberyhostile witnessidentification evidencerecovery of stolen propertyspeedy trialadjournmentCriminal Procedure CodeIndian Penal Codeevidentiary value
Judgment
[2012] 13 S.C.R. 659
AKIL@ JAVED A
v.
STATE OF NCT OF DELHI
(Criminal Appeal No. 1735 of 2009)
DECEMBER 06, 2012
B
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - ss. 302 and 392 - Murder and
robbery - Conviction by courts below - On appeal, Held: C
Conviction justified in view of the account of eye-witnesses,
recovery of stolen articles and identification of the accused.
Witness - Witness declared hostile by prosecution - Not
treated as hostile by the Court - Evidentiary value - Discussed. D
Criminal Administration of Justice - Speedy trial - Need
for the courts dealing with cases involving a serious offence
to proceed with the trial on day to day basis until the trial is
concluded as stipulated in s. 309 Cr.P. C - In the instant case
adjournment of the case for two months for cross-examination E
amounts to flouting the provisions u/ss. 231 and 309 Cr.P. C.,
and the decision in *Rajdeo Sharma and **Shambhu Nath
cases - Direction to forward a copy of present decision to all
the High Courts to specifically follow the instructions issued
in *Rajdeo Sharma and in **Shambhu Nath cases by issuing F
appropriate circular, if already not issued - Direction to trial
courts to strictly adhere to the procedure prescribed u/ss. 231
and 309 Cr.P. C. in order to ensure speedy trial - Code of
Criminal Procedure, 1973 - ss. 231 and 309.
G
The appellant-accused, along-with co-accused was
prosecuted for robbery and murder. The prosecution
case was that three intruders including the appellant-
accused, entered the house of complainant (PW 17)
659 H
660 SUPREME COURT REPORTS [2012] 13 S.C.R.
A armed with revolvers and knife. They snatched a gold
ring and locket from the deceased and also a cash of
Rs.100/150. Thereafter, they robbed cash, a mobile phone
and jewels. When the appellant attempted to molest the
complainant, the deceased raised a protest, at which the
B appellant shot him dead. They left the scene of
occurrence, after bolting the door from outside. The
prosecution examined PWs.17, 19, 20, 23 and 25 as eye-
witnesses. When the appellant and one co-accused were
arrested in another case under Arms Act, their
c involvement in the present case was detected. There was
recovery of stolen items from them. They were identified
by PW-20. Charges were framed against them u/ss. 392/
34, 302/34, 354 and 411/34 IPC. The trial Court convicted
them for the offences u/ss. 302/34 and 392/34 IPC. The
High Court confirmed the conviction of the appellant. The
0
conviction of the co-accused u/s. 392/34 IPC was
confirmed while he was acquitted u/s. 302/34 IPC.
The present appeal was filed by the appellant-
accused. He contended that the reliance on PW 20 was
E not correct as he had turned hostile in his cross-
examination as regards the identification of the appellant;
and that reliance placed upon the recoveries of the
articles from the person of the accused was not justified.
F Dismissing the appeal, the Court
Held: 1.1 The conviction and sentence imposed on
the appellant does not call for interference. The sequence
of events, as per the prosecution, was consistently
maintained by complainant - PW.17 before the Court
G which was fully supported by the other eye-witnesses,
namely, PWs.19, 20, 23 and 25. PW 20 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
H
AKIL @ JAVED v. STATE OF NCT OF DELHI 661
that the identity made by PW.20 could not be ignored. The A
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. The trial court adjourned the case for cross- B
examination of PW.20 by two months on the request on
behalf of the appellant and according to the High Court
such a long adjournment provided scope for
maneuvering. (Paras, 8, 11 and 20) [671-H; 673-C-H; 682-
E-F] C
Kunju Muhammed alias Khumani and Anr. v. State of
Kera/a (2004) 9 SCC 193; Nisar Khan alias Guddu and Ors.
v. State of Uttarancha/ (2006) 9 SCC 386; Mukhtiar Ahmed
Ansari v. State (NCT of Delhi) (2005) 5 SCC 258: 2005 (3)
SCR 797; Raja Ram v. State of Rajasthan (2005) 5 SCC 272 D
- relied on.
Paramjeet Singh alias Pamma v. State of Uttarakhand
(2010) 10 SCC 439: 2010 (11) SCR 1064; Suraj Mal v. State
(Delhi Administration) (1979) 4 SCC 725 - referred to. E
1.2 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, when the appellant and the other F
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 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 G
which were stealthily removed from her possession. In so
far as the said part of evidence is concerned (viz), as
regards the recovery, the plea of the accused that no
public witness was joined at the time of arrest of the
accused in spite of prior information which was available H
662 SUPREME COURT REPORTS [2012] 13 S.C.R.
A with the police, was rightly rejected by both the courts
below as unsustainable. The version of PW.14 in this
regard was unassailable. The Courts below righty held
that non-mentioning of the recovered articles in the FIR
was a very minor discrepancy and on that score such a
B diabolic offence committed by the accused could not be
ignored. The plea 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
circumstances, it was for the appellant to explain as to
C 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 his statement u/s. 313
Cr.P.C, the appellant did not even attempt to explain it
away or claim ownership. Thus, the recoveries from the
appellant along with the co-accused having been proved
0
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 of the offences
alleged. Having regard to the said piece of evidence
E 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
F co-accused in the commission of the crime as alleged in
the complaint and found proved against both of them.
[Paras 14 and 15] [674-H; 675-A-H; 676-A-B]
State of Punjab v. Wassan Singh and Ors. AIR 1981 SC
G 697: 1981 (2) SCR 615; Sohrab and Anr. v. State of Madhya
Pradesh AIR 1972 SC 2020: 1973 (1) SCR 472; Appabhai
and Anr. v. State of Gujarat AIR 1988 SC 696; Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753:
1983 (3) SCR 280; Sanjay alias Kaka v. State (NCT of Delhi)
H 2001-(CR)-GJX-0071-SC; Ezhil and Ors. v. State of Tamil
AKIL @ JAVED v. STATE OF NCT OF DELHI 663
Nadu 2002 II A.O. (Cr.) S.C. 613; State of Maharashtra v. A
Suresh (2000) 1 SCC 471: 1999 (5) Suppl. SCR 215;
Nallabothu Venkaiah v. State of Andhra Pradesh 2002 VI AD
(S.C.) 521 - referred to.
2.1 There is dire need for the courts dealing with
8
cases involving a serious offence to proceed with the trial
on day to day basis in de die in diem until the trial is
concluded. The trial court dealing with sessions case is
cautioned to ensure that there are well settled
procedures laid down under the Code of Criminal
Procedure as regards the manner in which the trial C
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.
Under Section 231 Cr.P.C., it has been specifically D
provided that on the date fixed for examination of
witnesses as provided u/s. 230 Cr.P.C., 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 E
· witnesses to be deferred until any other witness or
witnesses have been examined or recall any witness for
further cross-examination. Section 309 Cr.P.C lays down
conditions for granting adjournments. The High Court of
Delhi by its Circular No.1/87 dated 12th January 1987, in F
Clause 24A directed all the Sessions Judges and
Assistant Sessions Judges to follow the provisions of s.
309(1) and (2) Cr.P.C, Criminal Rules of Practice, Kerala,
1982 and Circulars and instructions on the list system,
in order to ensure the speedy disposal of Sessions G
cases. [Paras 25, 27] [685-A-D; 687-B-C]
Badri Prasad v. Emperor (1912) 13 Crl. L.J. 861; Lt. Col.
S.J. Chaudhary v. State (Delhi Administration) (1984) 1 SCC
722: 1984 (2) SCR 438; State of U.P. v. Shambhu Nath H
664 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Singh and Ors. (2001) 4 SCC 667: 2001 (4) SCC 667 - relied
on.
Chandra Sain Jain and Ors. v. The State 1982 Crl. L.J.
NOC 86 (ALL); The State v. Bilal Rai and Ors. 1985 Crl. L.J.
NOC 38 (Delhi); State v. Ravi Kant Sharma and Ors. 120
8
(2005) DLT 213 - approved.
2.2 In the fact situation of the present case, where
PW.20 was cross-examined after two months solely at the
instance of the appellant's counsel on the simple ground
C 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
D 309 Cr.P.C. which mandate the requirement of sessions
trial to be carried on a day tQ 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.
E Everyone of the caution indicated in the decision of this
Court reported in *Rajdeo Sharma case 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 Cr.P.C. in letter and spirit. In
F fact, the High Courts were directed to take note of the
conduct of any particular trial Judge who violated the
above legislative mandate and to adopt such
administrative action against the detinquent judicial
officer as per the law. [Para 34) [694-G-H; 695-A-C]
G 2.3 In spite of the specific directions issued by this
Court and reminded once again in **Shambhu Nath case
such recalcitrant approach was made by the trial court
unmindful of the adverse serious consequences
affecting the society at large flowing therefrom. Therefore,
H even while disposing of this appeal by confirming the
AKIL @ JAVED v. STATE OF NCT OF DELHI 665
conviction and sentence imposed on the appellant by the A
trial Judge, as confirmed by the High Court, the Registry
is directed 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
case and reiterated in **Shambhu Nath case by issuing B
appropriate circular, if already not issued. If such circular
has already been issued, to 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 c
cases as well as other cases as provided u/s. 309 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. [Para 35) [695-D-
H; 696-A] D
*Rajdeo Sharma v. State of Bihar 1998 Crl. L.J. 4596;
**State of U.P. v. Shambhu Nath Singh and Ors. (2001) 4
sec 667: 2001 (4) sec 667 - relied on.
2.4 Directions are issued in the light of the provisions
contained in Section 231 r/w Section 309 Cr.P.C. for the E
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.
[Para 36) [696-B-C] F
Case Law Reference:
1981 (2) SCR 615 Referred to Para 16
1973 (1) SCR 472 Referred to Para 16
G
AIR 1988 SC 696 Referred to Para 16
1983 (3) SCR 280 Referred to Para 16
2001-(CR)-GJX-0071-SC Referred to Para 16
2002 II A.O. (Cr.) S.C. 613 Referred to Para 16 H
666 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 1999 (5) Suppl. SCR 215 Referred to Para 16
2002 VI AD (S.C.) 521 Referred to Para 16
2010 (11) SCR 1064 Referred to Para 20
(1979) 4 sec 125 Referred to Para 20
8
(2004) 9 sec 193 Relied on Para 21
(2006) 9 sec 386 Relied on Para 22
2005 (3) SCR 797 Relied on Para 23
c
(2005) 5 sec 212 Relied on Para 24
(1912) 13 Crl. l.J. 861 Relied on Para 28
1982 Crl. l.J. NOC 86 (All) Approved Para 29
D 1985 Crl. L.J. NOC 38 (Delhl)Approved Para 30
1984 (2) SCR 438 Relied on Para 31
120 (2005) DlT 213 Approved Para 32
E 2001 (4) sec 667 Relied on Para 33
and 35
1998 Crl. l.J. 4596 Relied on Para 34
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F No. 1735 of 2009.
From the Judgment and Order dated 16.09.2005 of the
High Court of Delhi at New Delhi in Criminal Appeal No. 134
of 2003.
Subramonium Prasad, Rajat Khattry and Varun Tandon for
G the Appellant.
B. Chahar, P.K. Dey, Sadhana Sandhu, B.V. Balramdas
and Anil Katiyar for the Respondent.
The Judgment of the Court was delivered by
H FAKKIR MOHAMED IBRAHIM KAllFUlLA, J. 1. First
AKIL @ JAVED v. STATE OF NCT OF DELHI 667
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
accused is the appellant before us. The challenge is to the A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
668 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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.
B 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
c injured Salvinder was taken to the hospital where he was
declared 'brought dead'. Based on the statement of Sha ma
Parveen the police registered a crime under Sections 392/354/
302 read with Section 34 IPC at Police Station Seelampur,
Delhi.
D 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
E 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
F 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
G 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.
H 4. The trial Court framed charges against the appellant and
AKIL @ JAVED v. STATE OF NCT OF DELHI 669
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the second accused under Section 392/34, 302/34, 354 and A
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 B
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 C
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 D
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 E
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.
F
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 G
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 H
670 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
8 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
C Uttarakhand - (2010) 1O 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
D 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
E 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
F 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.
G 7. As against the above submission Mr. 8. 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
H proclaimed offenders. The learned counsel, therefore, submitted
AKIL @ JAVED v. STATE OF NCT OF DELHI 671
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
that the approach of the trial Court and the High Court in A
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 B
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 c
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 D
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 E
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 F
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.
G
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 H
for interference.
672 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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-a-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
B 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
c 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.
0
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
E 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
F 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
G 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
H robbed cash kept in the almirah to the tune of Rs.15000/- and
AKIL @ JAVED v. STATE OF NCT OF DELHI 673
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
another sum of Rs.2,50,000/- in the locker and also a mobile A
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 complainanfs
cash and jewels and other materials when the appellant
attempted to molest the complainant the deceased stated to B
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 c
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 D
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, E
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 F
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 G
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.
H
674 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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
c 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 Kera/a - (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
0
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
E 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
F 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
G 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
H appellant and the other accused are concerned, another
AKIL @ JAVED v. STATE OF NCT OF DELHI 675
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
important factor which weighed with the Courts below to find A
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. B
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 c
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. D
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 E
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 F
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 G
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 H
676 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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-
B 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.
c 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
D 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,
E Appabhai and another V. State of Gujarat - AIR 1988 SC 696,
Bharwada Bhoginbhai Hirjibhai V. State of Gujarat - Al R 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.O. (Cr.) S.C. 613, State of Maharashtra V. Suresh -
(2000) 1 SCC 471, Nallabothu Venkaiah V. State of Andhra
F
Pradesh - 2002 VI AD (S.C.) 521. The relevant findings are
found in paragraphs 2, 18, 26 and 27 which reads as under:
"2 ..... During personal search of accused Akil one Rado
wrist watch and one gold chain were also recovered which
G 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/
H 354/302/411/34 IPC. On 5.11.98, 1.0. Inspector Rajinder
AKIL @ JAVED v. STATE OF NCT OF DELHI 677
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Singh moved an application for holding test identification A
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
8
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.
c
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.1.P.
D
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.1.P. E
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.l.P. is meaningless and does not carry
much weight." F
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 G
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 H
678 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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
B 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-
c 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
D
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
E 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
F 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
G 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
H
witnesses.
AKIL @ JAVED v. STATE OF NCT OF DELHI 679
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
25. It was next submitted by the learned counsel for the A
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 B
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 c
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 0
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
E
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 F
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. G
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 H
680 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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.
B 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
c 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,
D 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
E 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
F 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
G 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'
H watch regarding which entries were made at Serial no.
AKIL@ JAVED v. STATE OF NCT OF DELHI 681
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
3363 and 3364 of the Malkhana register. It was further A
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 . .!! B
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
Januarv. 1999 and on that verv day. the TIP was got done c
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 D
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 E
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 F
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 G
'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
H
682 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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-
C 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
D 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
E him to make such a statement.
20. It is also relevant to note that tile 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
F 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
G 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
H inconsistent statements in their evidence either at one stage
AKIL @ JAVED v. STATE OF NCT OF DELHI 683
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
or at two stages, the testimony of such witnesses become A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
684 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B "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,
c 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
D 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:
E
"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
F
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
G 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 S's testimony can be sidelined."
25. We have referred to the above legal position relating
H to the extent of reliance that can be placed upon a hostile
AKIL @ JAVED v. STATE OF NCT OF DELHI 685
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
witness who was not declared hostile and in the same breath, A
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 s
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 c .
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 D
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.
E
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 proceedlngs.-(1)
In every inquiry or trial, the proceedings shall be held as
expeditiously as possible, and in particular. when the F
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. G
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 H
686 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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,
B 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
c 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
D 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.
E
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.
F
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."
G 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
H
AKIL @ JAVED v. STATE OF NCT OF DELHI 687
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
adjourned, in some cases to suit convenience of counsel A
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 B
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. C
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 D
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 E
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 F
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 G
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 H
688 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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
c postponed unless that is unavoidable, and once the trial
has beguri, 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
D 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
E 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
F 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.
G (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
H Sessions Cases .
.f
AKIL @ JAVED v. STATE OF NCT OF DELHI 689
[FAKKIR MOHAMED IBRAHIM KALIFULL,A, J.]
28. In this context some of the decisions which have A
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 B
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 C
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) D
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. E
"Merely because the prosecution is being done by C.8.1.
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 F
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 G
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 H
690 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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.
C 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
D 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
E that Sessions cases must not be tried piecemeal. Before
commencing a trial, a Sessions Judge must satisfy himsel.f
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
F
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
G 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
H committing a breach of his professional duty, if he so fails
AKIL @ JAVED v. STATE OF NCT OF DELHI 691
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
to attend. The criminal miscellaneous petition is, therefore, A
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,
B
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 . c
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 D
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 E
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 F
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 G
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
H
692 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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
8
sec 667 the legal position on this aspect has been dealt with
in extenso. Useful reference can be made to paragraphs 10,
11to14 and 18:
"10. Section 309 of the Code of Criminal Procedure (for
c 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:
D 309.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
E 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
F 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
G examination "shall be continued from day to day until all
the witnesses in attendance have been examined". The
solitarv exception to the said stringent rule is. if the court
finds that adjournment "beyond the following day to be
necessarv" the same can be granted for which a condition
H is imposed on the court that reasons for the same should
AKIL @ JAVED v. STATE OF NCT OF DELHI 693
[FAKKIR MOHAMED IBRAHllV! KALIFULLA, J.]
be recorded. Even this dilution has been taken away when A
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, B
"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)
c
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). D
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, E
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 F
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 G
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. H
694 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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
c 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). ·
D
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
E 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
F 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
G 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
H was examined-in-chief, the adjournment granted by the trial
AKIL @ JAVED v. STATE OF NCT OF DELHI 695
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Court at the relevant point of time only disclose that the Court A
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- B
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 c
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.
D
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 E
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 F
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 G
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 H
696 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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
C 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.
K.K.T. Appeal dismissed.
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