AKIL @ JAVED Vs STATE OF NCT OF DELHI
Bench: SWATANTER KUMAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001735-001735 / 2009
Diary number: 15854 / 2007
Advocates: Vs
ANIL KATIYAR
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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-
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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
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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
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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 -
Criminal Appeal No.1735 of 2009 15 of 37
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(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.
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“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.
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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
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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 28 th 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
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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
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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
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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:
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“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
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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
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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:
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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)
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