AKIL@ JAVED v. STATE OF NCT OF DELHI

Judgment

13 S.C.R. 659 AKIL@ JAVED v. STATE OF NCT OF DELHI (Criminal Appeal No. 1735 of 2009) DECEMBER 06, 2012 A 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. 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 G 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 conviction of the co-accused u/s. 392/34 IPC was confirmed while he was acquitted u/s. 302/34 IPC. 0 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 maneuvering. (Paras, 8, 11 and 20) [671-H; 673-C-H; 682- E-F] long adjournment provided scope 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 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 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] E 0 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. 8

2.1 There is dire need for the courts dealing with 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.