# AKIL@ JAVED v. STATE OF NCT OF DELHI

- **Citation:** [2012] 13 S.C.R. 659
- **Court:** Supreme Court of India
- **Decided:** 2012-12-06
- **Case number:** Criminal Appeal No. 1735 of 2009
- **Bench:** Swatanter Kumar, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/akil-javed-v-state-of-nct-of-delhi-28157
- **Pages:** 38

## Headnote

A
B
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 appellantaccused, entered the house of complainant (PW 17)
G
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 eyewitnesses. 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
0 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.
The present appeal was filed by the appellantaccused. He contended that the reliance on PW 20 was
E not correct as he had turned hostile in his crossexamination 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 crossB
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; 682E-F]
C
Kunju Muhammed alias Khumani and Anr. v. State of
Kera/a (2004) 9 SCC 193; Nisar Khan alias Guddu and Ors

## Text

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[2012] 13 S.C.R. 659
AKIL@ JAVED
v.
STATE OF NCT OF DELHI
(Criminal Appeal No. 1735 of 2009)
DECEMBER 06, 2012
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
A
B
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 appellantaccused, entered the house of complainant (PW 17)
G
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 eyewitnesses. 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
0 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.
The present appeal was filed by the appellantaccused. He contended that the reliance on PW 20 was
E not correct as he had turned hostile in his crossexamination 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 crossB
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; 682E-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
0
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
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.
8
NOC 38 (Delhi); State v. Ravi Kant Sharma and Ors. 120
(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-inchief, 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-DH; 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
AIR 1988 SC 696
Referred to
Para 16
G
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
2002 VI AD (S.C.) 521
2010 (11) SCR 1064
Referred to
Para 16
Referred to
Para 16
Referred to
Para 20
8
c
D
(1979) 4 sec 125
(2004) 9 sec 193
(2006) 9 sec 386
2005 (3) SCR 797
(2005) 5 sec 212
(1912) 13 Crl. l.J. 861
Referred to
Relied on
Relied on
Relied on
Relied on
Relied on
1982 Crl. l.J. NOC 86 (All) Approved
1985 Crl. L.J. NOC 38 (Delhl)Approved
1984 (2) SCR 438
Relied on
120 (2005) DlT 213
Approved
E
2001 (4) sec 667
Relied on
Para 20
Para 21
Para 22
Para 23
Para 24
Para 28
Para 29
Para 30
Para 31
Para 32
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 realestate. 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 1015 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 countrymade 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) 1 O 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.
8. Having heard learned counsel for the appellant as well G
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
0 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
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 coaccused 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 crossexamination 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
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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,
0 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
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
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B
c
D
E
F
G
H
676
SUPREME COURT REPORTS
[2012] 13 S.C.R.
circumstances demonstrated before the Courts below and
there was no contra evidence for the appellant and the coaccused 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 coaccused 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 coaccused 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 - 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
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
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, 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
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B
c
D
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F
G
H
678
SUPREME COURT REPORTS
[2012) 13 S.C.R.
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, PW23 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.
AKIL @ JAVED v.