Akil @ Javed vs State Of Nct Of Delhi

2. The genesis of the case of the prosecution was that one Shama Parveen was living in House No.A-32/15, Main Road No.66, Maujpur, that while she was using the first floor as her residential premises she had her own shop in the ground floor where she was dealing with air-coolers and the business of real-estate. She had three sons living with her apart from her mother. In another portion of the same premises her maternal uncle one Mohd. Jamil (Mammu) was having his own business. One Salvinder alias Kake friend of Shama Parveen used to frequently visit her house. On 27.10.1998 Shama Parveen returned back to her house along with Salvinder after making certain purchases from the market and after her return appellant and two other persons entered her house and they were armed with revolvers and also a knife. After entering the house they enquired about Mammu and when Shama Parveen replied that he had gone to fetch vegetables the accused snatched a gold ring, locket and cash amounting to Rs.100/150 from Salvinder. They demanded the keys of the almirah of Shama Parveen and out of force when she handed over the keys the accused opened the almirah and removed sum of Rs.15000/- kept in the almirah apart from sum of Rs.2,50,000/- kept in the locker. They also removed a mobile phone and some other ornaments apart from ear rings and a necklace from the person of Shama Parveen. While so, Mohd. Jamil alias Mammu also entered the house and another friend of Shama Parveen, namely, Nasreen and her husband Jeeta also came there. Shama Parveen’s mother was already present in the house. After committing robbery, the appellant stated to have attempted to molest Shama Parveen and when Salvinder protested to such an attempt of the appellant questioning as to why even after removing the valuables they are indulging in such molestation, the appellant stated to have retarded towards him asking him to shut up and also simultaneously fired a shot on his forehead. Salvinder stated to have fell down on the bed. The three accused thereafter stated to have left the place with the robbed items and cash by locking the door outside the house. After 10-15 minutes one of the sons of Shama Parveen, namely, Danish entered the house who untied all the victims and thereafter the injured Salvinder was taken to the hospital where he was declared ‘brought dead’. Based on the statement of Shama Parveen the police registered a crime under Sections 392/354/302 read with Section 34 IPC at Police Station Seelampur, Delhi.

3. Be that as it may, based on a secret information the appellant and the second accused were arrested by officials of the Special Cell, Lodhi Colony from Sunlight Colony, Seema Puri while they came there in a vehicle bearing Registration No.DL-2C-B 1381. Pursuant to the arrest when a search was made on the person of the second accused a loaded country-made pistol was recovered from his pant pocket. On the personal search made on the appellant he was also found in possession of another country-made pistol along with live cartridges. Cases were registered against them under the Arms Act vide FIR No.717 and 718/1998 at Police Station Seema Puri. Further recoveries were also made from the person of the appellant, namely, a gold chain and a ‘Rado’ wrist watch. Based on the further investigation it came to light that they were involved in the incident on 27.10.1998 at the residence of Shama Parveen. The investigation further revealed apart from the appellant and second accused two other accused were also involved but they continued to remain absconding and, therefore, they were declared as proclaimed offenders.

4. The trial Court framed charges against the appellant and the second accused under Section 392/34, 302/34, 354 and 411/34 IPC. The trial Court ultimately convicted the appellant as well as second accused for offences under Sections 302 read with 34 and 392 read with 34 IPC. They were acquitted of the offence under Section 354 IPC as there was no evidence against them. The appellant and the second accused were imposed with a sentence of life imprisonment for the offence under Section 302 read with 34 IPC apart from a fine of Rs.5000/- each and in default to undergo rigorous imprisonment for one year. They were also imposed with a sentence of 10 years rigorous imprisonment for the offence under Section 392 read with 34 IPC apart from a fine of Rs.5000/- each and in default to undergo rigorous imprisonment for one year.

5. The Division Bench having dealt with the appeal of the appellant in extentso ultimately found that the second accused could not be roped in for the offence falling under Section 302 read with 34 IPC though his conviction under Section 392 read with 34 IPC could be confirmed. The Division Bench of the High Court, therefore, partly allowed the appeal of the second accused and he was acquitted of the charge under Section 302 read with 34 IPC while his conviction under Section 392 read with 34 IPC was confirmed. The appeal preferred by the appellant, however, came to be dismissed. Being aggrieved of the said judgment of the Division Bench the appellant has come forward with this appeal.

10. The sequence of events were that on that day at about 6:00 p.m three intruders in the age group of 20 to 22 years entered the place of occurrence and that out of the three persons two were armed with revolvers and one was possessing a knife. The description of those persons and their physical features were also mentioned by the complainant by stating that one of them was thin, whitish in complexion and had a cut mark on his right cheek. The other one was described as fair coloured, without moustaches and tall. The third person was described as a person with round face and well built. After entering the house they asked for the whereabouts of Mammu who was examined as PW.20. Thereafter, they snatched a gold ring from the person of deceased Salvinder and also a locket and cash of Rs.100/150 from him. Then they asked the complainant, who was in possession of the keys of the almirah, noticing the keys were in her hand bag, when she opened her hand bag to pay some cash to a juiceman. The intruders forced her to handover the keys of the almirah by threatening to shoot at her as well as her children with the revolver. Thereafter, they robbed cash kept in the almirah to the tune of Rs.15000/- and another sum of Rs.2,50,000/- in the locker and also a mobile phone and jewels kept in the almirah. They also stated to have removed Valiya, a gold chain and three rings which the complainant was wearing. After robbing of the complainant’s cash and jewels and other materials when the appellant attempted to molest the complainant the deceased stated to have raised a protest at which point of time the appellant stated to have shouted at the deceased by saying that he was talking too much by pointing the revolver towards him and shot him which snatched away the life of the deceased. According to the complainant, thereafter, they bolted the door from outside the house and left the scene of occurrence.

13. Both the trial Court as well as the High Court ignored the inconsistency in the statement of PW.20 as regards the identity of the appellant and proceeded to rely upon what was stated by him in the chief-examination while convicting the appellant and ultimately imposing him the sentence. It is relevant to mention that the appellant as well as the co-accused were charged under Section 392 IPC as well apart from the charge under Section 302 read with 34 IPC. In fact, we find from the judgment of the trial Court that specific charge was framed against the appellant for the offences under Sections 302 read with 34 and 392 read with 34 IPC. They were charged under Section 354 read with 34 IPC and were acquitted for the said offence.

14. As we come back to the offence alleged against the appellant, as noted earlier, the charge was both under Section 302 read with 34 and 392 read with 34 IPC. Leaving aside the identity aspect dealt with by the Courts below, as far as the appellant and the other accused are concerned, another important factor which weighed with the Courts below to find them guilty was the identity of the materials which were recovered from the appellant and the co-accused on 03.11.1998 when the appellant and the other accused were arrested under the Arms Act. A ‘Rado watch’ and a ‘gold chain’ were recovered from the personal search of the appellant. Search was conducted by S.I. A.S. Rawat who was examined as PW.14. He testified such fact that the said recovery was made by him from the person of the appellant. PW.17 clearly identified both the articles as belonging to her which were stealthily removed from her possession. In so far as the said part of evidence is concerned (viz), as regards the recovery, it was contended that no public witness was joined at the time of arrest of the accused in spite of prior information which was available with the police. The said contention was rightly rejected by both the Courts below as unsustainable.

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.

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).

On receipt of the order of commitment the case should be posted for trial to as early a date as possible, sufficient time, say three weeks, being allowed for securing the witnesses. Ordinarily it should be possible to post two sessions cases a week, the first on Monday and the second on Thursday but sufficient time should be allowed for each case so that one case does not telescope into the next. Every endeavour should be made to avoid telescoping and for this, if necessary, the court should commence sitting earlier and continue sitting later than the normal hours. Judgment in the case begun on Monday should ordinarily be pronounced in the course of the week and that begun on Thursday the following Monday. (Instructions on the list system contained in the O.M. dated 8th March 1984).

All the Sessions Judges and the Assistant Sessions Judges are directed to adhere strictly to the above provisions and instructions while granting adjournments in Sessions Cases.

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)

(emphasis supplied)

18. It is no justification to glide on any alibi by blaming the infrastructure for skirting the legislative mandates embalmed in Section 309 of the Code. A judicious judicial officer who is committed to his work could manage with the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the only answer to those indolent judicial officers who find fault with the defects in the system and the imperfections of the existing infrastructure for their tardiness in coping with such directions.” (Emphasis added)

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.

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.

(Signed reportable judgment is placed on the file)