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TMI Blog2001 (8) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... nordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of the Code of Criminal Procedure. It is submitted that such a delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is stated to be contrary to the maxim actus curiae neminem gravabit, that an act of the court shall prejudice none. 3. The prevalence of such a practice and horrible situation in some of the High Courts in the country has necessitated the desirability of considering the effect of such delay on the rights of the litigant public. Though reluctantly, yet for preserving and strengthening the belief of the people in the institution of the judiciary, we have decided to consider this aspect and to give appropriate directions. 4. It has been held time and again that justice should not only be done but should also appear to have been done. Similarly whereas jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justice, as we have often observed, must not only be done but must manifestly appear to be done". 6. In Bhagwandas Fatechand Daswani v. H.P.A. International [(2000) 2 SCC 13] this Court observed (at SCC p. 14, para 3) that "a long delay in delivery of the judgment gives rise to unnecessary speculation in the minds of parties to a case". This Court in various cases including Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], Husssainara Khatoon (IV) v. Home Secy., State of Bihar [(1980) 1 SCC 98], Abdul Rehman Antulay v. R. S. Nayak [(1992) 1 SCC 225], Kartar Singh v. State of Punjab [(1994) 3 SCC 569], Raj Deo Sharma v. State of Bihar [(1998) 7 SCC 507], Raj Deo Sharma (II) v. State of Bihar [(1999) 7 SCC 604] and Akhtari Bi v. State of M.P. [(2001) 4 SCC 355] has in unambiguous terms, held "the right of speedy trial to be part of Article 21 of the Constitution of India." 7. Adverse effect of the problem of not pronouncing the reserved judgments within a reasonable time was considered by the Arrears Committee consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h efforts are required to be made to come up to the expectation of the society of ensuring speedy, untainted and unpolluted justice. 10. Under the prevalent circumstances in some of the High Courts, I feel it appropriate to provide some guidelines regarding the pronouncement of judgments which, I am sure, shall be followed by all concerned, being the mandate of this Court. Such guidelines, as for the present, are as under : (i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a ease 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h they committed the murder of Lal Muni Rai and Chand Muni Rai on 21-6-1989 at about 6 p.m. in their Village Kuchhila. Both the deceased were real brothers with whom the accused persons are stated to have previous enmity. On the date of occurrence when Lal Muni Rai @ Rabinder Nath Rai was returning to his home after attending the meeting at Panchayat Bhawan in connection with the Jawahar Rozgar Yojna, the accused caught hold of him when he reached at a place a few yards towards the north of the house of the accused Subhash Chand Rai(A-2). The accused were armed with weapons like guns and rifles. When Lal Muni Rai was caught hold of by the accused some noise was raised which attracted the attention of his family members with the result Chand Muni Rai (deceased), Bipin Rai (PW 1), Sishir Rai (PW 3), Sanjiv Rai (PW 5) and Hoshila Devi (PW 6) rushed to the spot. On reaching the spot they saw that Lal Muni Rai had been held up by all the accused persons excepting Subhash Chand Rai (A-2). When Lal Muni Rai succeeded in extricating himself from the clutches of the accused persons and tried to run away from the place of occurrence, he was shot at by Avinash Chand Rai (A-1) with his rifle. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-9). Both of them were arrested along with their guns, live and misfired cartridges. Amit Kumar Rai (A-6) was found in the house of Avinash Chand Rai (A-1) who was arrested along with a gun and 5 cartridges. The seizure list of the recovered articles was prepared by the police officers in the presence of the witnesses. The three accused, who had run away from the village, were apprehended later. The police registered the case and after completion of investigation submitted the charge-sheet against them. All the accused persons pleaded not guilty and claimed to be tried. 14. In all, the prosecution examined 14 witnesses. PWs 1, 2, 5, 6 and 12 were cited as eyewitnesses. However, Mukati Singh (PW 12) was declared hostile at the trial. The defence has also examined three witnesses, one of whom is Dr. Basant Kumar, stated to have examined the injured accused persons. On appreciation of the evidence, the trial court held that the prosecution had succeeded in proving the charges against the accused persons, on proof of which Avinash Chand Rai (A-1) and Subhash Chand Rai (A-2) were convicted under Section 302 IPC and rest of the accused under Section 302 read with Section 149 IPC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the accused with the commission of the crime as the accused are alleged to have received some injuries allegedly inflicted upon them by the police after arrest. It is submitted that investigation being tainted, the benefit of acquittal should be given to the accused persons. It is further submitted that as Mukati Singh (PW 12), declared as hostile witness, in his deposition did not name A-2, he is entitled to acquittal by setting aside the impugned judgment in these appeals. 18. There is no doubt that PWs 1, 2, 5 and 6 relied upon and believed by the trial as well as the High Court are not friendly to the accused persons on account of previous existing enmity between them. The admitted position of law is that enmity is a double-edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a subordinate officer to make an investigation on the spot, (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (h) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated." 20. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal Muni Rai had been captured by some people, she along with other inmates who were at home, rushed to the spot. She saw that Avinash Chand Rai (A-1), Anil Rai (A-4), Awani Rai (A-5), Awadh Bihari Rai (A-3), Amit Rai (A-6), Satya Narain @ Satta (A-7) along with two other persons armed with weapons like rifles and guns had captured Lal Muni Rai who was trying to escape from their clutches. As soon as Lal Muni Rai got free and moved two-three steps, Avinash Chand Rai (A-1) fired from behind at him which hit his forehead and he fell down on the ground. Another person who was a stranger to her also fired at Lal Muni Rai. The moment her husband Chand Muni Rai reached near the place of occurrence, Subhash Chand Rai (A-2) fired from his weapon from his verandah which hit the left temple of her husband who fell down on the ground. The said accused then fired shots at PW 6 and others who saved their lives by running away from the place of occurrence. They went back at the place of occurrence after some time. It has also come in evidence that the accused had fired at the police personnel as well. PW 6 has nowhere stated that her husband had received only one gunshot. She has narrated only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of alleged discrepancies with respect to the description of the guns and rifles in the hands of various accused persons. Arguing the appeal on behalf of Subhash Chand Rai (A-2), the learned counsel submitted that as witnesses had stated that he was equipped with a rifle when he fired at Chand Muni Rai, but a gun was actually recovered at the time of his arrest, no reliance could be placed on the testimony of PWs 1, 2, 5 and 6. It is not disputed that eyewitnesses relied upon by the trial as well as the High Court are not experts of firearms. 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 firearms, 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 eyewitnesses 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith rifles and guns. They caught hold of Lal Muni Rai. The witness cried and raised alarm that Lal Muni Rai was held by the aforesaid persons after which a number of people from the village rushed to the place including Chand Muni Rai (deceased). He, however, did not mention the presence of Subhash Chand Rai (A-2) for which he was declared hostile. In his cross-examination he admitted that bloodstained earth was recovered from the spot where Lal Muni Rai and Chand Muni Rai had fallen down. Regarding presence of the eyewitnesses he stated, "I do not remember that I stated before Darogaji that by that time the wife and son of Chand Muni Rai came to secure Chand Muni Rai." The occurrence having taken place and the two persons having died on the date of occurrence have been admitted even by PW 12. There is, therefore, no reason to hold that as Mukati Singh (PW 12) has not named appellant Subhash Chand Rai (A-2), he is entitled to acquittal. 27. 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. The case of the defence is that on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin v. State of U.P. [AIR 1956 SC 181] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." 32. In Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430] it was held that to infer common object it is not necessary that each one of the accused should have participated in the attack when the evidence of the eyewitnesses clearly established that each one of those convicted accused was a member of the unlawful assembly whose common object was to commit murder. Where the prosecution fails to prove the existence of sharing of common object by all the members of the unlawful assembly, it is unsafe to convict all the accused persons merely on proof of their presence or some overt act which did not cause the death of the deceased. Both the courts below have not found on facts that all the accused persons including A-3 to A-7 shared the common object with A-1 and A-2 and A-2 and fired the shots. Neither any direct evidence nor any circumstances have been brought on record to hold or infer the existence of such a common object. Learned counsel for the appellants have sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -8 and A-9. The prosecution has established that the common object of the unlawful assembly a was to commit the offence of rioting armed with deadly weapons punishable under Section 148 IPC. The causing of death of the deceased persons was the individual acts of A-1 and A-2 and the prosecution evidence does not show that the other accused persons shared the said common object. Therefore, the conviction of A-3 to A-7 for the offence punishable under Section 302 read with Section 149 IPC is not sustainable. They are, however, liable to be convicted under Section 148 IPC read with Section 149 IPC. Their conviction and sentence under the Arms Act cannot be interfered with. 34. As noticed earlier, the SLP filed by Satya Narain (A-7) was dismissed by this Court on account of his failure to produce the proof of surrender. It has been stated at the Bar and admitted by the learned counsel appearing for the State that the said accused surrendered thereafter and is presently undergoing the imprisonment awarded to him vide the judgment impugned. 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th if not required in any other case. 37. [Judgment per : K.T. Thomas, J.]. - I read the judgment drafted by Brother Sethi, J. I am in full agreement with the conclusions regarding the merits of the case. Regarding the aspect of delay in pronouncing judgments after conclusion of arguments, I wish to add a few words on my own in support of all what Sethi, J. has said about it. 38. In 1961, a learned Judge of the Patna High Court expressed his anguish when a Magistrate took nine months to pronounce a judgment. The words used by him for expressing his judicial wrath are the following : "The Magistrate who cannot find time to write judgment within reasonable time after hearing arguments ought not do any judicial work at all. This Court strongly disapproves of the Magistrates making such a tremendous delay in the delivery of his judgments." 39. Now when two Judges of the Patna High Court took two years for pronouncing a judgment after concluding arguments when the parties were languishing in jail, the counsel appearing in this Court in challenge of the said judgment asked in unison whether the exhortation made by the Patna High Court in 1961 is not intended to apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution 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 of 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. 43. 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. Union of India [1976 (3) SCC 574] for expediting delivery of judgments. I too wish to repeat those words as follows : (SCC Headnote) "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 import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court with a 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. 46. 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 of arguments and delivery of judgment in that particular court, it is open to him to do so as a substitute for the measures suggested by us hereinbefore. But until such measures are evolved by the Chief Justice of the High Court concerned, we expect that the measures suggested above would hold the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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