2001 Supreme(SC) 1046

2001(5) Supreme 617
Supreme Court of India
(From Patna High Court)
K.T. Thomas & R.P. Sethi, JJ.
Anil Rai —Appellant
versus
State of Bihar —Respondent
Criminal Appeal No. 389 of 1998
With
Criminal Appeal Nos. 387-388 of 1998
And
Criminal Appeal No. 199 of 1999
Decided on 6-8-2001
Counsel for the Parties :
For the Appearing Parties : Mr. P.K. Jain and Mr. K.B. Sinha, Sr. Advocates, Mr. Ajay Bhalla, Mr. Rajiv Singh, Mr. Rajesh Prasad Singh, Mr. Tripurari Ray, Mr. Vishwajit Singh, Mr. B.B. Singh and Mr. Kumar Rajesh Singh, Advocates.

Very Important Points
1. Unreasonable delay (in this case of 2 years) between conclusion of arguments and pronouncement of reserved judgment is against right of speedy criminal trial under Article 21 of Constitution. To nullify Justice delayed is justice denied at High Court level, guidelines laid down, to be followed strictly and implemented, considering them as self imposed restraints.
2. On merits conviction of A1 and A2 for offences under Sections 302 r/w 149 IPC upheld but conviction of A3 to A7 under Sections 302 r/w 149 IPC altered to under Sections 148 r/w 149 IPC on the facts, circumstances, evidence and law. Conviction of A3 under Section 27 Arms Act upheld.

Headnote:(i) Constitution of India—Art. 21 —Right to speedy criminal trial—Practice and Procedure of Court in criminal trial—Aspect of delay in pronouncing judgments after conclusion of arguments in High Court—Delay when judgment reserved in August, 1995 and pronounced in August, 1997—Guidelines to be followed—Instructions as remedial measures to overcome justice delayed is justice denied.

       Per Thomas, J. (= Sethi, J. Paras 21 and 22)

       Held : If delay in pronouncing judgments occurred on the part of the Judges of the subordinate judiciary the whip of the High Court studded with supervisory and administrative authority could be used and it had been used quite often to chide them and sometimes to take action against the erring judicial officers. But what happens when the High Court judges do not pronounce judgments after lapse of several months, and perhaps even years since completion of arguments? The Constitution did not provide anything in that area presumably because the architects of the Constitution believed that no High Court judge would cause such long and distressing delays. Such expectation of the makers of the Constitution remained unsullied during the early period of the post Constitution years. But unfortunately, the later years have shown slackness on the part of a few Judges of the superior Courts in India with the result that once arguments in a lis concluded before them the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties or the legal points advanced. Sometimes the interval is so long that the judges forget even the fact that such a case is pending with them expecting judicial verdict. Though it is an unpleasant fact, it is a stark reality. Should the situation continue to remain so helpless for all concerned. The Apex Court made an exhortation in 1976 through a judgment which is reported as R.C. Sharma v. UOI [1976(3) SCC 574] for expediting delivery of judgments. I too wish to repeat those words as follows:

       "Nevertheless an unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments."

       Quarter of a century has elapsed thereafter but the situation, instead of improving has only worsened. We understand that many cases remain in area of "judgment reserved" for long periods. It is heartening that most of the judges of the High Courts are discharging their duties by expeditiously pronouncing judgments. But it is disheartening that a handful of few are unmindful of their obligation and the oath of office they have solemnly taken as they cause such inordinate delay in pronouncing judgments. It is in the above background, after bestowing deep thoughts with a sense of commitment, that we have decided to chalk out some remedial measures to be mentioned in this judgment as instructions. Sethi J. has enumerated them succinctly as follows:

       (i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned.

       (ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/Readers of the various benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.

       (iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.

       (iv) Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the bench concerned within two days excluding the intervening holidays.

       (v) If the judgment, for any reason, is not pronounced within a period of six months any of the parties of the said lis shall be entitled to move an application before the Chief justice of the High Court with a prayer to withdraw the said case and to make it over to any other bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.

       I have chosen to reiterate the above instructions in this separate judgment only for providing added emphasis to them. I make it clear that if the Chief Justice of a High Court thinks that more effective measures can be evolved by him for slashing down the interval between conclusion or arguments and delivery of judgment in that particular court, it is open to him to do so as substitute for the measures suggested by us here-in-before. But until such measures are evolved by the Chief Justice of the concerned High Court we expect that the measures suggested above would hold the field. I may also mention that the above - enumerated measures are intended to remain only until such time as the Parliament would enact measures to deal with this problem. With the above words I respectfully concur with all what brother Sethi J. has said in his judgment. (Paras 6, 7, 8, 9 & 10)

       (ii) Indian Penal Code, 1860—Sections 302 read with 149—Present appellants alongwith five others formed an unlawful assembly in furtherance of common object to murder Lal Muni Rai and Chand Muni Rai by deadly weapons—Occurrence seen by PW 1, PW3, PW5 and PW8—A1 and A2 clearly identified to have caused murder of deceased persons—A3 to A7 only participated—Existence of enemity between accused & eye witnesses whether of any effect? (No)—Is there any delay in sending copy of FIR? (No)—Testimony of PW8 seeing A2 firing at deceased whether reliable? (Yes)—Discrepency of five arms with accused whether gun or rifle of any effect? (No)— Non-mention of names of PW1 and PW5 in FIR by PW6 is fatal? (No)—Evidence of hostile witness—Whether admissible in evidence? (Yes, with corroboration)— Non-mention by him of A2 does not exonerate A2—Injuries on accused persons—Not during occurrence and minor—A1 and A2’s conviction u/s. 302 r/w 149 maintained—Conviction of A3 to A7 altered from Sections 302 r/w 149 to 149 and 148—Order accordingly—Case law discussed—(Cr.P.C. 1973—Sections 157, 158 and 161—Evidence Act, 1872—Evidence of hostile witness—Arms Act—Section 27).

       Held : The mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing. (Para 29)

       In the present case the FIR is shown to have been lodged within 15 minutes after the occurrence and most of the accused apprehended immediately. There does not appear to be any possibility of falsely implicating the accused persons. On facts also the courts below did not find any delay in despatch of the copy of the F.I.R. to the Area Magistrate. Learned counsel for the appellant Subhash Chand Rai (A 2) has not referred to any evidence to convince us that there was any unexplained inordinate delay in sending the copy of the FIR to the Area Magistrate. (Para 32)

       PW 6 has nowhere stated that her husband had received one only gun shot. She has narrated only that shot which was fired at in her presence. The possibility of any other shot fired by Subhash Chand Rai (A 2) or a stray bullet fired by other accused persons hitting the deceased cannot be ruled out. Both the trial as well as the High Court have rightly held that her testimony inspires the confidence of the court and ruled out any possibility of her being tutored or not being an eye-witness to the occurrence. (Para 33)

       If medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of eye-witness has to be accepted. (Para 34)

       There is hardly any difference between the gun and the rifle for a common man. It has come in evidence that all the 9 accused persons were armed with fire arms, some of which were mentioned as rifles and the others as guns. They had seen weapons at a time when the accused had indulged in indiscriminate firing and the witnesses were apprehending danger to their lives. It is common experience that in the confusion of the moment the witnesses are prone to make such errors especially if seized by sudden fear. The eye-witnesses PWs 1, 2, 5 and 6 have withstood the test of cross-examination and have been relied upon by both the courts below. I do not find any ground to hold that the statements of the aforesaid eye-witnesses cannot be accepted. (Para 35)

       I also do not find any substance in the submission that because the names of PWs 1 and 5 are not mentioned in the FIR no reliance can be placed on their testimony. (Para 36)

       The mere fact that the court gave the permission to the Public Prosecutor to cross-examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. There is, therefore, no reason to hold that as the Mukati Singh (PW 12) has not named appellant Subhash Chand Rai (A2), he is entitled to acquittal. (Para 37)

       In the defence evidence produced it was shown that the accused persons had also received the injuries. It was, however, conceded that such injuries were not sustained by them during the occurrence. Be it as it may, such minor injuries noticed on the bodies of some of the accused persons do not, in any way, weaken the prosecution case. (Para 38)

       Held on these : On the basis of the ocular testimony of PWs 1, 2, 5 and 6 the recovery of weapons from Avinash Chand Rai (A1) and Subhash Chand Rai (A2), the existence of enmity between them and the deceased and the medical evidence, I find no ground to interfere with the finding of conviction and sentence in so far as it relates to Avinash Chand Rai (A1) and Subhash Chand Rai (A2). Appeals filed by Subhash Chand Rai (A2), having no merits, are dismissed. (Para 39)

       Held also : In view of the finding that A 3 to A 7 are not guilty of the offence under Section 302 read with Section 149 IPC can any benefit of this judgment be given to Satya Narain (A7). This Court in Raja Ram & Ors. v. State of U.P. [1994(2) SCC 568] considered the case of non-appealing accused which was identical to the case of the appellants and held him entitled to the benefit of altered conviction and sentence. (Para 45)

       I am of the opinion that under the facts and circumstances of the case, A7 is also entitled to the benefit of altered conviction and sentence. (Para 46)

       Held finally : Under the circumstances the appeal filed by Subhash Chand Rai (A2) is dismissed. The appeals filed by Appellants Awadh Bihari Rai (A3), Anil Rai (A4), Awani Rai (A5) and Amit Kumar Rai (A6) are partly allowed by setting aside their conviction and sentence under Section 302 read with Section 149 IPC. They are held guilty for the commission of offence punishable under Section 148 read with Section 149 IPC and sentenced to three years rigorous imprisonment. Their conviction and sentence under Section 27 of the Arms Act is upheld. As already noticed Satya Narain (A7), whose SLP was dismissed by this Court on 27.3.1998 is also given the benefit of altered conviction and sentence with the result that his conviction under Section 302 read with Section 149 is set aside and instead he is convicted under Section 148 read with Section 149 IPC and sentenced to three years rigorous imprisonment. His conviction and sentence under Section 27 of the Arms Act is upheld. The conviction and sentences awarded to A3 to A7 shall run concurrently. If the aforesaid accused persons (A3 to A7) have already undergone the sentences awarded to them, they shall be set at liberty forthwith if not required in any other case. (Para 47)