A ANIL RAI

v.

STATE OF BIHAR

AUGUST 6, 2001

B

[K.T. THOMAS AND R.P. SETHI, JJ.]

Constitution of India-Articles 21, 141 and 142-Delay in pronouncement

of Judgments by High Court-Practice deprecated-Guidelines/or expeditious

C pronouncement of Judgments laid down-Criminal Procedure Code, 1973-

S.353 (/).

Criminal Procedure Code-S.157-

FIR-Promptly recorded and investigation started-Delay in sending

D the copy to the area Magistrate-Held, does not vitiate the prosecution case­

Doubting the authenticity of FIR-Not every delay but only extraordinary and

unexplained

delay-Delay immaterial if prosecution gives cogent and

reasonable explanation for such delay.

E

F

Evidence Act 1872 :

Witnesses-Testimony

of-Name of

PWs not mentioned in the FIR­

Reliability of-Held, the purpose of FIR is to set the criminal law into motion

and does not require the details or names

of all the witnesses-Thus, merely

because names

of some of the

PWs had not been mentioned in the FIR, their

testimony does become unreliable.

Witnesses-Inimical witnesses-Reliability of-Held, cannot be discarded

merely on the ground

of enmity which is otherwise convincing and consistent,

particularly

if he enmity is proved to be the motive for the commission of

crime.

G Hostile witness-Witness declared hostile

for not mentioning the name

H

of one of the accused-Held, does not completely efface the evidence of such

witness-If his testimony is corroborated by other reliable evidence, conviction

can be based thereupon.

Penal Code-S, 3021149-Applicability of-Murder-Common object~

298

ANIL RA! v. STA TE OF BIHAR 299 ~

No proof that there was· unlawful assembly to cause the death of deceased A

persons-Held, sharing of common object and participation in the occurrence

by each one

of the accused has to be positively proved Held, on facts conviction

and sentence under

S. 3021149 cannot be sustained.

Appellants alongwith five others were prosecuted for offences under

S. 302 r/w S. 149 IPC and under S. 27 of the Arms Act. The prosecution B

case was that appellants along with others formed an unlawful assembly in

furtherance of the common object of committing the murder of 'L' and 'C' .

On the date of occurrence while 'L' was returning home, accused persons

caught hold of him. On hearing the noise, family members of 'L' viz. 'C',

PWs I, 3, 5 and 6 rushed to the spot. When 'L' succeeded in extricating C

himself and tried to run away, Al shot at him with his rifle. The moment 'C'

reached the place of occurrence, A2 shot at him with his gun. Both 'L' and

'C' died on the spot. Accused were arrested and charge-sheet was filed against

them. Trial Court convicted Al and A2 under S. 302 and rest of the accused

under S 302 r/w S. 149 IPC. Trial court also convicted all the accused under

S. 27 of the Arms Act. On appea~ High Court confirmed the conviction and D

sentence of Al to A7 and acquitted AS and A9 for offences under S-302 r/w

S. 149 IPC. SLP filed by A7 was dismissed by this court on account of his

failure to produce proof of surrender. However, subsequently it was brought

to the notice

of this court that said accused had surrendered and was confined

in jail. In the meantime

Al and A6 died. Aggrieved by their conviction and E

sentence A2 to AS have.filed the present appeals. In the present appeals, High

Court after completion of arguments pronounced the judgment only after two

years that too only when one

of the judges concerned had reached the date

of his superannuation.

On behalf of appellants it was contended that as the witnesses relied F

upon by the courts were inimical towards the accused persons, their testimony

could not be relied upon without corroboration

in material particulars; that

there was delay

in sending the copy of FIR to Area Magistrate;

PW6 cannot

be held to be an eye-witness as she has not seen the occurrence;

that as the

names

of

PWsl and 5 were not mentioned in the FIR, no reliance can be

placed upon their testimony; and that since PW 12 was declared as hostile G

witness and in his deposition he did not name A2, A2 was entitled to acquittal.

Disposing of the appeals, the Court

HELD : (Per Sethi, J)

1.1. Justice should not only be done but should also appear to have been H

300 SUPREME COURT REPORTS [2001] SUPP. 1 S.C.R.

A done. Similarly whereas justice delayed is justice denied, justice withheld is

even worst than that. The inordinate, unexplained and negligent delav 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.

Such a delay is not only against the provisions of law

B 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 had been termed

to be unjust.

Such

a course is stated to be contrary to the maxim "Actus Cariac Neminem

Gadavi", that an act of the court shall prejudice none. The prevalence of such

a practice and horrible situation

in some of the High Courts in the country

C has necessitated the desirability of considering the effect of such delay on the

rights

of the litigant public. Delay in disposal of an appeal on account of

inadequate number of judges, insufficiency of infrastructure, strike of lawyers

and the circumstances attributable to the

State is understandable but once

the entire process

of participation in justice delivery system is over and only

thing to be done

is the pronouncement of judgment, no excuse can be found

D to further delay for adjudication of the rights of the parties, particularly when

it affects any

of their rights conferred by the Constitution under

Part-III.

1306-F, C, D, E,; 307-A, Bf

Bhagwan Das Fateh Chand Daswani v. HP.A. International and Ors.,

E 1200012 SCC 13; Hussainara Khatoon v. Home Secretary, State of Bihar, 11980)

1SCC81; A.R. Antulay v. R.S. Nayak, 1199211SCC225; Kartar Singh v. State

of Punjab, [19941 3 SCC 569; Raj Dea Sharma v. State of Bihar, [1998) 7 SCC

507; Raj Dea Sharma (II) v. State of Bihar, [19991 7 SCC 604; Akhtari Bi v.

State of MP., 12001[ 4 SCC 355 and R.C. Sharma v. Union of India and Ors.,

F

119761 3 sec 574, relied on.

Surender Nath Sarkar v. Emperor, AIR (1942) Calcutta 225; Jagarnath

Singh and Ors. v. Francis Kharia and Ors., AIR (1948) Patna 414 and Sohagiya

v. Ram Brikash Mahto, (1961 BL.JR 282), referred to.

1.2. The intention of the Legislature regarding pronouncement of

G judgments can be inferred from the provisions of the Code of Criminal

Procedure. Sub-section (I) of Section 353 of the Code provides that the

judgment

in every trial in any criminal court of original jurisdiction, shall be

pronounced in open court immediately after the conclusion

of the trial or on

some subsequent time for which due notice shall be given to the parties

or

H their pleaders. The words

"some subsequent time" mentioned in Section 353

'

ANIL RAJ v. ST A TE OF BIHAR 301

contemplates the passing of the judgment without undue delay, as delay in A

the pronouncement of judgment is opposed to the principle of law. Such

subsequent time can at the most be stretched to a period of six weeks and not

beyond that time

in any case. The pronouncement of judgments in the civil

case should not be permitted to

go beyond two months.

(308-C, D, El

1.3. It is true, that for the High Courts, no period for pronouncement B

of judgment is contemplated either under the Civil Procedure Code or the .

Criminal Procedure Code, but as the pronouncement of the judgment is a

part of justice dispensation system, it has to be without delay. It is the policy

and purpose of law, to have speedy justice for which. efforts are required to

be made

to come to the expectation of the society of ensuring speedy, untainted C

and unpolluted justice.

Under the prevalent circumstances in some of the High

Courts, it is appropriate to provide some guidelines regarding the

pronouncement of judgments which shall be followed by all concerned, being

the mandate

of this Court.

Such guidelines, for the present, are as under:

(i) The Chief Justice

of the High Courts may issue appropriate directions D

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'Justice of the High Courts, on their administrative side, E

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 F

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 G

as confidential and in a sealed cover.

(iv) Where a judgment

is not pronounced within three months from

the date

of reserving it, 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 H

' 302 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A within two days excluding the intervening holidays.

B

(v) If the judgment, for any reasons, is not pronounced within a period

of six months, any of the parties of the said 1ist 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

P.ass

any other order as he deems lit in the circumstances. [308-E, G, H; 309-A-HI

2. 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

C inimical witnesses, the courts are required to scrutinize 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 motive of the crime, the witnesses proved to be

inimical should not be relied upon. Bitter animosity held

to be a double edged

D weapon may be instrumental for false involvement or for the

wituesses

inferring and strongly believing that the crime must have been committed

by the accused. Such possibility has to be kept in mind while evaluating the

prosecution witnesses regarding the involvement

of the accused in the

,

commission of the crime. Testimony of eyewitnesses, which is otherwise

E convincing and consistent, cannot be discarded simply on the ground that the

deceased were related to the eye-witnesses

or previously there were some

disputes between the accused and the deceased

or the witnesses. The existence

of animosity between the accused and the witnesses may, in some cases, give

rise to the possibility

of the witnesses exaggerating the role of some of the

accused

or trying to rope in more persons as accused persons for the

F commission of the crime.

Such a possibility is required to be ascertained on

the facts

of each case. However, 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

pr reject the testimony of the eye-witnesses,

whose deposition

is otherwise consistent and convincing. [313-C, D, E,

F, G[

G 3. S. 157 of the code 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

H of the FIR, the delay in sending the copy of the report to the Magistrate cannot

i

ANIL RA! v. ST A TE OF BIHAR 303

by itself justify the conclusion that the investigation was tainted anll the A

prosecution insupportable. Extraordinary delay in sending the copy of tl~e

FIR to the Magistrate can be a circumstance to provide a legitimate basis for

suspecting that the first information report

was recorded on a later day than

the stated day affording sufficient time to the prosecution to introduce

improvements

and imbelishment by setting up a distorted version of the B

occurrence. The delay contemplated under Section 157 of the Code of

Criminal procedure for doubting the authenticity of the FIR is not every delay

but only extraordinary and unexplained delay. However,

in the absence of

prejudice to the accused the omission by the police to submit the report does

not vitiate the trial. In the present case, the FIR

is shown to have been lodged

within

15 minutes after the occurrence and most of the accused apprehended C

immediately. There does not appear to be any

possibili9' of falsely implicating

the accused persons. On facts also the courts below did not find any delay in

despatch of the copy of FIR to the Area Magistrate.

[314-F, G, H; 315-A,

B, C, DJ

fa/a

Singh and Anr. v. State of Punjab, AIR (1972) SC 2679 and Sarwan D

Singh and Ors. v. State of Punjab, AIR (1976) SC 2304, relied on.

4. The purpose of the FIR is to set the criminal law in motion which

does not require the details

or the names of all the witnesses who have seen

the occurrence.

It is not necessary that elaboration of every fact that had E

happened should be given by the person who lodges the first information

report.

It has to be kept in mind that

PW6 whose husband had been killed

must have been extremely perturbed

at the time of lodging of the FIR and in

that state of mental agony she might not have been able to give details relating

to the names

of the wiitnesses who had seen the occurrence. The presence of

all the eyewitnesses has been accepted by the courts below and there is no F

reason to take a different view, particularly this being a question of fact which

was fully noticed by the two courts on fact and inspite

of that the courts had

believed the testimony

of

PWs I and 5. It is not the case of the appellant that

the names

of the accused persons were nof mentioned in the FIR. It is also

not the case

of the appellant that the statements made under Section 161 of

the Cr.

P.C. of the aforesaid witnesses were not immediately recorded by the G

investigation agency. The submission that because the names of PWsl and 5

are not mentioned in the FIR no reliance can be placed on their testimony is

far fetched and without any substance. [317-D, E, F, GI

5. There is no substance in the submission that as PWJ2 was declared H

304 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A hostile and his not naming A2 the prosecution case against A2 could not

~ucceed. 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

B testimony if corroborated by other reliable evidence. In the instant case PWl2

did not mention the presence of A2 for which he was declared hostile. In his

cross examination

he admitted that bloodstained earth was recovered from

the spot where the deceased

fell down. The occurrence having taken place

and the two persons having died

on the date of occurrence have been admitted

even by PW12. There

is, therefore, no reason to hold that as PWl2 has not

C named A2, he is entitled to acquittal. (317-H; 318-A, C, D, E]

6. Application

Of Section 149 IPC would be highly unsafe unless it is

positively proved that each one of the accused shared the common object and

accordingly participated in the occurrence. Where the prosecution fails to

prove the existence

of sharing of common object by all the members of the

D 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

A3 to A 7 shared the common object with which

Al and A2 and fired the shots. Neither any direct evidence nor any

E circumstances have been brought on record to hold or infer the existence of

such a common object. Even if the existence of a common object is held

proved, it cannot

be the common object for any offence other than committing

the offence

of rioting. There is no evidence to show that the unlawful assembly,

of which they were a part, had the object of causing the death of either of the

deceased persons. The prosecution has established that the common object

F of the unlawful assembly 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 Al and A2 and the prosecution

evidence does not show that other accused persons shared the said common

object. Therefore, the conviction

of A3 to A 7 for the offence punishable under

G

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.

(319-C; 321-B, C,

D, H; 322-C, Df

Masa/ti v. State of

UP., (1964( 8 SCR 133; lalji v. State of UP., (1989(

H 1sec439 and Shamshul Kanwar v. State ofU.P., [1995] 4 SCC 430, relied on.

ANIL RA! v. ST A TE OF BIHAR 305

Per Thomas, J. (Supplementing) : A

1. 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 B

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 C

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 list 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 D

pending with them expecting judicial verdict. Though it is an unpleasant fact,

it is a stark reality. It is in the above'background, after bestowing deep

thoughts with a sense

of commitment, some remedial measures as instructions

were laid down. However it

is made clear that if the Chief Justice of a High

Court thinks that more effective measures can be evolved by him for slashing E

down the interval between conclusion of arguments and delivery of judgment

in that particular court, it

is open to him to do so as substitute for the measures

suggested here-in-before. But until such measures

are evolved by the Chief

Justice

of the concerned High Court the measures suggested above would hold

the field. The above-enumerated measures are intended to remain only until

such time as the

Parliament would enact measures to deal with this problem. F

[324-F, G, H; 325-A, ·B, F; 326-G-H; 327-A)

R.C. Sharma v. UOJ, [1976) 3 SCC 574, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

389 of 1998. G

From the Judgment and Order dated 14.8.1997 of the Patna High Court

in Crl.

A. No.

170 of 1991.

WITH

Crl. Appeal Nos. 387-88/98, Crl. Appeal No. 199/99. H

306 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A R.K. Jain and K.B. Sinha, Ajay Bhalla, Rajeev Singh, Rajesh Prasad

Singh, Tripurari Ray, Vishwajit Singh, B.B. Singh and Kumar Rajesh Singh

for the appearing parties.

The Judgment

of the Court was delivered by

B

SETHI, J. Before adverting to the merits of the appeal, I propose to

deal with the shocking state

of affairs prevalent in some High

_Courts as

brought to our notice by the learned counsel for the appellants. The dismay

picture depicted before

us on the basis of the facts of these appeals is that a

few judges

in some High

Courts, after conclusion of the arguments, keep the

files withheld with them and do not pronounce judgments for periods spread

C over years. In the present appeals, the arguments were concluded and judgment

was reserved by the High

Court on 23rd August, 1995 which was pronounced

on 14th August, 1997.

The inordinate, unexclaimed and negligent delay

in pronouncing the

judgment

is alleged to have actually negatived the right of appeal conferred

D upon the convicts under the provisions of

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

E course is stated to be contrary to the maxim "Actus Cariae Neminem Gadavi",

that an act of the court shall prejudice none.

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,

F yet for preserving and strengthening the belief of people in the institution of

the judiciary, we have decided to consider this aspect and to give appropriate

directions.

It has been held time and again that justice should not only be done but

should also appear to have been done.

Similarly whereas justice delayed is

G justice denied, justice withheld is even worst than that. This Court in Madhav

Hayawadanrao Hoskot

v. State of Maharashtra, [1978] 3

SCC 544 observed

that procedure contemplated under Article

21 of the Constitution means

"fair

and reasonable procedure" which comports with civilised norms like natural

justice rooted firm

in community consciousness-not primitive processual

barabarity nor legislated normative mockery. Right

of appeal in a criminal

H case culminating in conviction was held to be the basis of the civilised

;

' •

1,

ANIL RAI v STATE OF BIHAR [SETHI, J.] 307

jurisprudence. Conferment of right of appeal to meet the requirement of A

Article 21 of the Constitution cannot be made a fraught by protracting the

pronouncement

of judgment for reasons which are not attributable either to

the litigant

or to the

State or to the legal profession. Delay in disposal of an

appeal

on account of inadequate number of judges, insufficiency of

·

infrastructure, strike of lawyers and the circumstances attributable to the

State is understandable but once the entire process of participation in justice B

delivery system is over and only thing to be done is the pronouncement of

judgment, no excuse can be found to further delay for adjudication of the

rights

of the parties, particularly when it affects any to their rights conferred

by the Constitution under

Part-III.

Learned counsel for the appellants has referred to the judgments in

Surender Nath Sarkar v. Emperor, AIR (1942) Calcutta 225, Jagarnath Singh

and Ors. v. Francis Kharia and Ors., AIR (1948) Patna 414, Sohagiya v.

Ram Briksh Mahto, (1961) BLJR 282 to show that only on the ground of

delay in rendering the judgment for the period ranging from six months to

c

ten months, the High Courts had held such judgments bad in law and set D

them aside. In RC. Sharma v. Union of India and Ors., [1976] 3 SCC 574

this Court, after noticing that the Civil Procedure Code did not provide a time

limit in delivery

of a judgment held :

"Nevertheless, we think that an unreasonable delay between nearing

of arguments and delivery of a judgment, unless explained by E

exceptional or extra-ordinary 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 F

shaken if there is excessive delay between hearing of arguments and

delivery

of judgment. Justice, as we have often observed, must not

only be done but must manifestly appear to be

done."

In Bhagwan Das Fateh Chand Daswani v. H.P.A. International and

Ors., [2000] 2 sec 13 this Court observed that "a long delay in delivering G

the judgment gives rise to unnecessary speculation in the minds of parties to

a case." This Court in various cases including Hussainar Khatoon v. Home

Secretary, State

of Bihar,

[1980] 1 SCC 81, Hussainara Khatoon v. Home

Secretary, State

of Bihar,

[1980] 1 SCC 98, A. R. Antu lay v. R.S. Nayak,

[1992] 1 SCC 225, Kartar Singh v. State of Purijab, (1994] 3 SCC 569, Raj

Dea Sharma V. State of Bihar, (1998] 7 sec 507, Raj Dea Sharma(!!) V. H

308 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A State of Bihar, [1999] 7 SCC 604 and Akhtari Bi v. State of MP., [2001] 4

sec 355 has in unambiguous terms, held that "the right of speedy trial to be

part of Article 21 of the Constitution of India."

Adverse effect of the problem of not pronouncing the reserved judgments

within a reasonable time was considered

by the Arrears

Committee constituted

B by the Government of India on the recommendation of the Chief Justices'

Conference. In its report of 1989-90 Chapter VIII, the Committee

recommended that reserved judgments should ordinarily be pronounced within

a period

of six weeks from the date of conclusion of the arguments. If,

however, a reserved judgment is not pronounced for a period of three months

C from the date of the conclusion of the arguments, the

Chief Justice was

recommended

to be authorised to either post the case for delivering judgment

in open court or withdraw the case and post it for disposal before an appropriate

bench.

The intention

of the Legislature regarding pronouncement of judgments

D can be inferred from the provisions of the

Code of Criminal Procedure. Sub­

section (I) of Section 353 of the Code provides that the judgment in every

trial

in any criminal court of original jurisdiction, shall be pronounced in

open court immediately after the conclusion of the trial or on some subsequent

time

~or which due notice shall be given to the parties or their pleaders. The

words "some subsequent time" mentioned in Section 353 contemplates the

E passing of the judgment without undue delay, as delay in the pronouncement

of judgment is opposed to the principle of law. Such subsequent time can at

the most

be stretched to a period of six weeks and not beyond that time in

any case. The pronouncement of judgments in the civil case should not be

permitted to go beyond two months.

F

It is true, that for the High

Courts, no period for pronouncement of

judgment is contemplated either under the Civil Procedure Code or the

Criminal Procedure Code, but as the pronouncement of the judgment is a part

of justice dispensation system, it has to be without delay. In a country like

ours where people consider the judges only second to God, efforts be made

G to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eye-brows, some time genuinely which, if not

checked, may shake the confidence

of the people in the judicial system. A

time has come when the judiciary itself has to assert for preserving its stature,

respect and regards for the attainment

of the Rule of Law. For the fault of

a few, the glorious and glittering name of the judiciary cannot be permitted

H to be made ugly. It is the policy and purpose of law, to have speedy justice

t

•

•

ANIL RAJ v. STA TE OF BIHAR [SETHI, J.] 309

for which efforts are required to be made to come to the expectation of the A

society of ensuring speedy, untainted and unpolluted justice.

Under the prevalent circumstances in some of the High Courts, I feel

it appropriate to provide some guidelines regarding pronouncement

of

judgments which, I am sure, shall be followed by all concerned, being the

mandate

of this Court.

Such guildelines, as for present, are as under: B

(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 C

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

D

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

pending matter. The Chief Justice may also see the desirability

of E

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

se<:!ed cover. F

(iv) Where a judgment is not pronounced within three months, from

the date

of reserving it, 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.

G

(v) If the judgment, for any reason, is not pronounced within a period

of six months, any of the parties of the said I ist 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 H

310 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A said prayer or to pass any other order as he deems fit in the

circumstances.

We hope and trust that the above guidelines shall be strictly followed

and implemented, considering them as self imposed restraints.

B Let me now deal with the merits of the appeals which are directed

against the common judgment

of the High

Court of Patna passed in Criminal

Appeal Nos. 158, 168, 170, 184 and 196of1991 confirming the conviction

and sentence

of 7 out of 9 accused persons for offences including under

Sections

302 and 149 !PC and sentencing them to life imprisonment and

acquitting the remaining two. The acquitted accused are Ram Parvesh Yadav

C (AS) and Bhajwan Yadav @ Gorakh Kahar (A9) and the Special Leave

Petion filed by Satya Narain Yadav (A7) was dismissed by this Court on

27

.3 .1998 on account of his failure to produce the proof of surrender. It has,

however, been brought

to my notice that the aforesaid accused thereafter

surrendered and

is presently confined in the jail. A vinash

Chand Rai (A I)

D and Amit Kumar Rai (A6) have since died.

The facts

of the case are that the present appellants, along with five

others formed an unlawful assembly

in furtherance of the common object of

which they committed the murder of Lal Muni Rai and

Chand Muni Rai on

21st June, 1989 at about 6 p.m. in their village Kuchhila. Both the deceased

E 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 Rojgar Vojna, the accused caught hold of him

when he reached at a place few yards towards the north

of the house of the

accused

Subhash Chand Rai (A2). Accused were armed with weapons like

F 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!), Sishir Rai (PW3), Sanjaiv

Rai (PW5) and Hoshila Devi (PW6) rushed to the spot. On reaching the spot

they saw that Lal Muni Rai had been held up by all the accused persons

G excepting

Subhash Chand Rai (A2). 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 A vinash Chand Rai

(A

1) with his rifle. The shot hit the occipital region of Lal Muni Rai who fell

down on the ground and died on the spot. Another accused who was not

immediately identified at that time also shot

at Lal Muni Rai with his gun.

H The moment Chand Muni Rai reached near the place of occurrence,

Subhash

ANIL RA! v. STATE OF BIHAR (SETHI, J.] 311

Chand Rai (A2) who was standing in his verandah shot him from there with A

his gun which hit and injured Chand Muni Rai with the result he fell down

and died on the spot. Avinash Chand Rai (A I) fired some shots towards the

other family members

of the deceased but none of them was injured. Three

of the accused ran away from the place of occurrence and left the village.

The remaining accused rushed towards the house

of Avinash Chand Rai (A

I)

and concealed themselves there. Terrified at that moment, the witnesses, the B

family members of the deceased persons, fled away from the place of

occurrence and came back th~;:e again after some time. The firing shots were

heard by police personnel at Kuchhila Police Station which was at a distance

of about half a kilometer from the place of occurrence with the result

Akhileshwar Kumar Singh, ASI (PWI I) and Arbind Kumar, AS! (PW13) C

reached on the spot with the police force. They found the dead bodies of the

deceased lying on the ground and found Hoshila Devi (PW6) weeping.

Statement

of

PW6 was recorded on the spot. The accused are stated to have

fired at the police party also. There was exchange

of

fire between the accused

and the police force. After some time Shri R.K. Sharma, S.I, arrived at the

scene along with additional police force. He directed PW! I to inform the D

senior police officers through wireless and bring more additional force for

the purposes

of apprehending the accused. R.K.

Poddar, Inspector of Police,

Mohania Police Station and other police officers arrived at the spot whereafter

the house

of the accused was searched in the presence of Yamuna Dubey and

Matuki Singh. During the search

of the house of Avinash

Chand Rai (A I), E

where he was living with Anil Rai (A4), was arrested with a rifle, four live

cartridges and six empty cartridges. On the roof of the house of the Avinash

Chand Rai (A I) two unknown persons, one armed with country made gun

and other armed with Regular Double Barrel Gun were apprehended, who

upon inquiry, disclosed their names

as Ram

Parvesh Yadav@ Bharat Dusadh

(AS) and Bhajwan Ya.;av@ Gorakh Kahar (A9). Both of them were arrested F

along with their guns, live and mis-fired cartridges. Amit Kumar Rai (A6)

was found

in the house of Avinash

Chand Rai (A I) who was arrested along

with gun and 5 cartridges. The seizure list

of the recovered articles were

prepared by the police officers

in the presence of the witnesses. The three

accused, who had run away from the village, were apprehended

fater. The G

police registered the case and after completion of investigation submitted the

charge-sheet against them. All the accused persons ple11ded not guilty and

claimed to

be tried.

In all the prosecution examined

14 witnesses. PWs I, 2, 5, 6 and 12

were cited as eye-witnesses. However, Mukati Singh (PW12) was declared H

312 SUPREME COURT REPORTS [2001) SUPP. 1 S.C.R.

A 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 prosecution

had succeeded

in proving the charges against the ac.cused persons, on proof

of which Avinash Chand Rai (Al) and Subhash Chand Rai (A2) were

B

convicted under Section 302

!PC and rest of the·accused under Section 302

read with Section 149 !PC. All the accused were also found guilty for the

commission

of the offence under Section 27 of the Arms Act. All the accused

persons were sentenced to life imprisonment for the offence under Section

302 read with Section 149

IPC and to rigorous imprisonment for one year for

the offence under Section 27

of the Arms Act. All the sentences were directed

C to run concurrently.

The appeals filed by the accused persons,

as noticed earlier, were

disposed

of by the High Court vide the judgment impugned in these appeals.

Criminal Appeal No.

15S of 1991 filed by Subhash Chand Rai (A2) and

Criminal Appeal No. 170 filed by Avinash Chand Rai

(Al) and Awadh

D Bihari Rai (A3), Criminal Appeal No.

IS4 of 1991 filed by Avinash Chand

Rai (A I) and Amit Kumar Rai (A6) and Criminal Appeal No. 196/91 filed

by Avinash Chand Rai

(Al) were dismissed. Criminal Appeal No.

1S6/91

filed by Ram Parvesh Yadav (AS) and Bhajwan Yadav (A9) was partly

allowed

in so far as their conviction under Section 302 read with Section 149

E was concerned. The said appeal, in so far as it related to Satya Narain Yadav

(A 7) was dismissed. However, conviction and sentence

of

AS and A9 under

Section

27 of the Arms Act was not disturbed.

F

The State has not filed any appeal against the judgment of acquittal

relating to

AS and A9.

Learned counsel appearing for the appellant Subhash Chand Rai (A2)

has assailed the judgments

of the trial as well as the High Courts on various

grounds. It

is contended that as the witnesses relied upon by the courts were

inimical towards the accused persons, their testimony could not be relied

upon without corroboration

in material particulars. He has also tried to take

G benefit of the alleged delay in sending the copy of the FIR to the Area

Magistrate. Referring to the deposition

of witnesses, the learned counsel

contended that Hoshila Devi

(PW6) cannot be held to be an eye-witness as

she has not seen the occurrence. It is further submitted that as the names of

PWs I and 5 are not mentioned in the FIR, no reliance can be placed upon

their testimony. Pointing out to some conflict between the deposition of eye-

H witnesses and medical evidence with respect to the injuries received by the

ANIL RA! v. STATE OF BIHAR [SETI-II, J.) 313

"

deceased and with reference to the recovery of single barrel. gun from Subhash A

Chand Rai (A2) it is contended that the prosecution has failed to connect 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

B

• (PWJ 2) declared as hostile witness, in his deposition did not name A2, he is

entitled to acquittal by setting aside the impugned judgment in these appeals.

There

is no doubt that

PWsl, 2, 5 and 6 relied upon and believed by

the trial

as well as the High Courts are not friendly to the accused persons

on account

of previous existing enmity between them. The admitted position

c

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. Jn

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 D

that despite proof of the motive of the crime, the witnesses proved to be

inimical should not be relied upon. Bitter animosity held to be a double

edged weapon may be instrumental for false involvement or for the witnesses

inferring and strongly believing that the crime must have been committed by

the accused.

Such possibility has to be kept in mind while evaluating the

E

prosecution witnesses regarding the involvement of the accused in the

commission

of the crime. Testimony of eye-witnesses, which is otherwise co~vinclrig and consistent, cannot be discarded simply on the ground that the

d-eceased were related to the eye-witnesses or previously there were some

disputes between the accused and the deceased or the witnesses. The existence

of animosity between the accused and the witnesses may on some cases, give F

rise to the possibility of the witnesses exaggerating the role of some of the

accused or trying to rope

in more persons as accused persons for the

commission

of the crime.

Such a possibility is required to be ascertained on

the facts

of each case. However, the mere existence of enmity in this case,

particularly when

it is alleged as a motive for the commission of the crime

G

cannot be made a basis to discard or reject the testimony of the eye-witnesses,

the deposition

of whom is otherwise consistent and convincing.

Regarding sending a copy

of the

FIR to the Area Magistrate, Section

I 57 of the Code of Criminal Procedure provides :

"l 57. Procedure for investigation :-( l) If, from information received H

•

A

B

c

D

E

F

314

SUPREME COURT REPORTS (2001] SUPP. I S.C.R .

or otherwise, an officer in charge of a police station has reason to

suspect the commission

of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report ot the

same to a Magistrate empowered to take cognizance

of such offence

upon a police report, and shall proceed

in person, or shall depute one

of his subordinate officers

not being below such rank as the State

Government may, be general or special order, prescribe in this behalf,

to proceed, to the spot, to investigate the facts and circumstances

of

the case, and, if necessary to take measures for the discovery and

arrest

of the offender :

Provided that :

(a) When information

as to the Commission of any such offence is

given against any person by name and the case is not of a serious

nature, the officer

in charge of a police station need not proceed

is person or depute a subordinate officers 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 (b) of the

proviso to sub-section

(I), 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

an51 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."

This provision

is designed to

I<:eep 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

G 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 cannot

by itself justify the conclusion that the investigation was tainted and the

prosecution insupportable

Pala

Singh and Anr. v. State of Punjab, AIR (1972)

SC 2679. Extraordinary delay in sending the copy of the FIR to the Magistrate

H can be a circumstance to provide a legitimate basis for suspecting that the

ANIL RAJ v. STA TE OF BIHAR [SETHI, .f.] 315

first information report was recorded at much later day than the stated day A

affording sufficient time to the prosecution to introduce improvements and

imbelishment by setting up a distorted version

of the occurrence. The delay

contemplated under Section 157

of the

Code of Criminal Procedure for

doubting the authenticity

of the FIR is not every delay but only extraordinary

and unexplained delay. However, in the absence

of prejudice to the accused B

the omission by the police to submit the report does not vitiate the trial. This

Court in Sarwan Singh and Ors. v. State of Punjab, AIR (1976) SC 2304

held that delay in despatch of first information report by itself is not a

circumstance which can throw

out the prosecution's case in its entirety,

particularly when it

is found on facts that the prosecution had given a very

cogent and reasonable explanation for the delay

in despatch of the FIR.

C

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 FIR to the Area Magistrate. Learned counsel D

for the appellant Subhash Chand Rai (A2) 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.

Assailing the testimony

of Hoshila Devi

(PW6), the learned counsel for

the appellant Subhash Chand Rai (A2) has submitted that as there is a conflict E

between her testimony and the medical evidence, she cannot be considered

to be an eye-witness.

It is further contended that as she had stated that the

said accused had fired with a rifle and the actual recovery from him was that

of a gun, she should not be believed. In her statement recorded at the trial,

Hoshila Devi

(PW6) has given a vivid description of the incident seen by her. p

She has stated that after hearing the noise from the north of the village to the

effect that Lal Muni Rai had been captured by some people, she along with

other inmates who were at home, rushed to the spot. She saw A vinash Chand

Rai (Al), Anil Rai (A4), Awani Rai (AS), Awadh Bihari Rai (A3) Amit Rai

(A6), Sat Naraina @ Satta (A 7) along with two other persons armed with

weapons like rifles and guns and had captured Lal Muni Rai who was trying

G

to escape from their clutches. As soon as Lal Muni Rai got free and moved

two-three steps, Avinash

Chand Rai (A I) fired from behind at him which hit

his forehead and he fell down on the ground. Another person who was

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 (A2) H

316 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A 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 PW6 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 the police personnel as well.

B PW6 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 (A2) 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 ofthe court and ruled out any possibility

C of her being tutored or not being an eye-witness to the occurrence.

Dr. Jai Shankar Misra

(PWI 0) deposed in the trial court that he had

conducted the post rnortem of the dead body of Chand Muni Rai. In his

cross-examination

the witness stated

"Injury Nos. I and 3 on Chand Muni

Rai are independent with each other. They have been caused by two different

D shots. Both the injuries were caused by rifle on Chand Muni". Taking

advantage

of the mention of two injuries with two different shots, the learned

counsel for the appellant

has tried to make a mountain out of the mole. As

noticed earlier, the possibility of the deceased getting another shot from the

aforesaid appellant or

any other accused cannot be ruled out. Learned counsel

E further submitted that as the doctor has stated that the aforesaid injuries were

caused

by rifle, the prosecution case cannot be accepted because what was

recovered from the appellant Subhash Chand Rai (A2) was a gun and not a

rifle.

In his examination-in-chief the witness stated that injuries were ante

mortem

and were grievous in nature which were caused by

"fire arm". There

is no dispute that both gun and rifle are the fire-arms. The expert witness has

F nowhere stated that such injuries could not be caused by gun shots. It has to

be kept in mind that the witne5s PW I 0 was expert on the medical science and

not a ballastic expert. Otherwise also the opinion

of the expert would lose its

significance in view of the reliable, consistent ocular testimony of

PWs I, ::1,

5 and 6. Such a plea was rejected by this Court in Punjab Singh v. State of

G Haryana, AIR (1984) SC 1233 for two reasons, (I) that if direct evidence is

satisfactory and reliable, the same cannot be rejected on hypothetical medical

evidence,

and (2) 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.

H Learned counsel has also tried to take benefit of alleged discrepancies

ANIL RA! v. STA TE OF BIHAR [SETHI, J.] 317

with respect to the description of guns and rifles in the hands of various .

A

accused persons. Arguing the appeal on behalf of Subhash Chand Rai (A2),

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 eye-witnesses relied upon by the trial

B

as well as the High Court are not experts of fire arms. 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 c

that in the confusion of the moment the witnesses are prone to make such

I

errors especially if seized by sudden fear. The eye-witnesses PWs l, 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.

D

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. The purpose

of the FIR is to set the criminal law into

motion which does not require the detains

or the names of all the witnesses

who have seen the occurrence.

It is not necessary that elaboration of every

E

fact that had happened should be given by the person who lodges the first

information report.

It has to be kept in mind that

PW6 whose husband had

been killed must have been extremely perturbed at the time

of lodging of the

FIR and

in that state of mental agony she might not have been able to give

details relating to the names

of the witnesses who had seen the occurrence.

The presence

of all the eye-witnesses has been accepted by the courts below F

and I don not see any reason to take a different view, particularly this being

a question

of fact which was fully noticed by the two courts on fact and

inspite

of that that courts had believed the testimony of

PW6 of PWs I and

5.

It is not the case of the appellant that the names of the accused persons

were not mentioned

in the FIR. It is also not the case of the appellant that

G

the statements made under

Section 161 of the Cr.P.C. of the aforesaid witnesses

were not immediately recorded by the investigating agency. The plea raised

is far fetched and without any substance.

I also do not find any substance

in the submission of the learned counsel

for the appellant

Subhash Chand .Rai (A2) that as Mukati Singh (PW! 2) was H

318 SUPREME COURT REPORTS [2001] SUPP. I S.C.R

A declared hostile in not naming his client, the prosecution case could not

succeed. 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

B testimony if corroborated by other reliable evidence. The said witness in his

statement recorded

in the court stated that after the meeting in the

Panchayat

Bhawan he along with Lal Muni Rai and others were coming back to the

village and when they reached near Puwal heap of Baij Nath Ram he saw

accused Avinash Chand

Rai (Al), Anil Rai and Awadh Bihari Rai with

others, equipped with rifles and guns. They caught hold

of

Lal Muni Rai. The

C 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 (A2) for which he was declared hostile. In

his cross examination he admitted that blood-stained earth was recovered

D

from the spot where Lal Muni Rai and Chand Muni Rai had fell down.

Regarding presence

of the eye-witnesses he stated,

"! do not remember that

I stated before Darogaji that by the 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

PWl2. There is, therefore, no reason to hold that as the Mukati Singh

E (PW 12) has not named appellant Subhash Chand Rai (A2), he is entitled to

acquittal.

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

F is that on account of

tJ· e torture to which the accused were allegedly subjected

after their arrest, they had received the injuries. Receipt

of injuries after the

occurrence,

if any, does not help the accused persons in any way. If the

accused had been subjected to beating or torture after their arrest, they were

at liberty to file a case against the responsible police officials but cannot

G claim the benefit of acquittal on account of alleged beating by the police after

the occurrence.

It has come in evidence that indiscriminate firing had been

resorted to at the police by the accused persons which perhaps could be a

reason

of provoking the police to give them a thrashing. 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.

H

'·

J

ANIL RA! v. STA TE OF BIHAR [SETHI, J.) 319

On the basis of the ocular testimony of PWs'l, 2, 5 and 6 the recovery A

of weapons from Avinash Chand Rai (Al) 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 (A I) and

Subhash Chand Rai (A2).

Appeals filed by Subhash Chand Rai (A2), having no merits, are dismissed. B

Learned counsel appearing for other accused persons have, however,

submitted that the conviction and sentences

of their clients under

Section 302

read with Section 149 IPC is not justified.

I

The scope of Section 149 IPC has been explained by this court in C

various judgments holding that application of Section 149 IPC would be

highly unsafe unless it is positively proved that each one of the accused

shared the common object and accordingly participated

in the occurrence. In

Masalti v. State of

UP., (1964) 8 SCR 133 it was observed :

•

"What has to be proved against a person who is alleged to be a D

member of an unlawful assembly is that he was one of the persons

constituting the assembly and he entertained along with the other

members

of the assembly the common object as defined by

Section

141 IPC. Section 142 provides that however, being aware of facts

which render any assembly

an unlawful assembly, intentionally joins E

that assembly, or continue in it, is said to be a member of an unlawful

assembly.

In other words, an assembly of five or more persons actuated

by, and entertaining one 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 F

or more of the common objects as specified in 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 G

is in that context that the observations made by this Court in the case

of

Saladin v. State o/U.P., AIR (1956) SC 181 assume significance;

otherwise,

in law; it wou

Id not be correct to say that before a person

is held to be a member of an u.nlawful assembly, it must be shown

that he had committed some illegal overt act or had been guilty of

some i !legal omission in purusuance of the common object of the H

A

B

c

D

E

F

H

320 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

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

assembly

knew to be likely to be committed in prosecution of that

object,

every person who, at the time of the committing of that offence,

is a member of the same assembly, is guilty of that offence; and that

emphatically brings

out the principle that the punishment prescribed

by Section 149 is in a sense vicarious and does not always proceed

on the

~asis that the offence has been actually committed by every

member

of the unlawful assembly".

In Lalji V.

State of U.P., [1989] I sec 439 this Court held :

"Section 149 makes every member of an unlawful assembly at the

time of committing of the offence guilty of that offence. Thus this

section created a specific and distinct offence. In other words, it

created a constructive and vicarious liability of the members of the

unlawful assembly

for the unlawful

acts, comrpitted pursl!ant to the

common liability of the members of the unlawful assembly extends '

only

to the acts done in pursuance of the 'common object of the

unlawful assembly, or

to such offences as the members of the unlawful

assembly

knew to be likely to be committed in prosecution of that

object.

Once the case of a person falls within the ingredients of the

section the question that he did nothing with his own hands would be

immaterial. He cannot put forward the defence that he did not with

his own hands commit the offence committed in prosecution of the

common object

of the unlawful assembly or such as the members of

the assembly knew to be likely to be committed in prosecution of that

object. Everyone must

be taken to have intended the probable and

natural result of the combination of the acts in which he joined. It is

not necessary that all the persons forming an unlawful assembly must

do some overt act. When the accused persons assembled together,

armed with lathis,

and were parties to the assault on the complaint

party,

the prosecution is not obliged to prove which specific overt act

was done by which of the accused. This section. makes a member of

the unlawful assembly responsible as a principal for the acts of each,

and all, merely because he is a member of an unlawful assembly.

While overt act and active participation may indicate common intention

of the person perpetrating the crime, the mere presence in the unlawful

assembly

may fasten vicariously criminal liability under section 149.

ANIL RAJ v. STATE OF BIHAR [SETHI,.1.J 321

It must be noted that the basis of the constructive guilt under Section A

149 is mere membership of the unlawful assembly, with the requisite

common object or knowledge."

In Shamshul Kanwar v. State of

UP .. [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 eye-witnesses B

clearly establish that each one of those convicted accused was 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 C

cause the death of the deceased. Both the courts below have not found on

facts that all the accused persons including A3 to A 7 shared the common

object with which A 1 and A2 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

submitted that there

is nothing in the evidence to show that the rest of the D

accused share the common object with A 1 and A2 to cause death of Lal Muni

Rai and Chand Muni Rai. Even

if the existence of a common object is held

proved,

it cannot be the common object for any offence other than committing

the offence

of rioting. 1 find substance in such a submission in the peculiar

facts and circumstances

of the case. The proved case of the prosecution is E

that when Lal Muni Rai along with others were coming back, he was

intercepted by the accused persons who were armed with weapons and

if the

object

of the

unlawful assembly was to cause his death, there was no cause

or occasion for them to only catch hold

of the said deceased

Lal Muni Rai

and beat him. He was shot at by Avinash Chand Rai

(Al) only after he

escaped from the

clutches of the other accused persons. The other accused F

persons might not have in their contemplation that if the rioting, intended to

by them, failed anyone of them would shoot at the victim.

However, there

is sufficient evidence on the record to show that A3 to

A 7 had formed

an unlawful

assembly with A I and A2, the common object

of which was to use force and violence against the deceased Lal Muni Rai. G

It has also come in evidence that the aforesaid accused persons who had

formed

an

unlawful assembly for the offence of rioting were armed with

deadly weapons which, when used as weapons of offence, were likely to

cause the death. There

is no evidence to show that the unlawful assembly, of

which they were a part, had the object of causing the death either of Lal H

322 SUPREME COURT REPORTS (2001) SUPP. I S.C.R.

A Muni Rai or the Chand Muni Rai. The death of Chand Muni Rai was caused

by Subhash Chand Rai (A2) who admittedly, was not a part of the unlawful

assembly

and is proved to have fired the gun shot from his verandah. The

High Court has not adverted to this aspect of the matter so far as A3 to A 7

are concerned but on similar reasoning acquitted A8 and A9 from the offence

B of murder with the help of Section 149

IPC, despite holding, "no doubt

Bharat

and Gorakh appellant were apprehended in the same night from the

house of co-accused Anil Rai but that by itself would not prove their

participating

in the incident of murder of Lal Muni Rai and

Chand Muni

Rai". They were, however, convicted under Section 27 of the Arms Act. I do

not find any difference between the case of A3 to A 7 and A8 and A9. The

C prosecution has established that the common object of the unlawful assembly

was to commit the offence of rioting armed with deadly weapons punishable

under Section 148 of the IPC. The causing of death of the deceased persons

was the individual acts of A 1 and A2 and the prosecution evidence does not

show that other accused persons shared

the said common object. Therefore,

D the conviction of A2 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 !PC read with Section 149 !PC. Their conviction

and sentence under the Arms Act cannot be interfered with.

As noticed earlier, the SLP filed by Satya Narain (A 7) was dismissed

E 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 A3 and A 7 are not guilty of the offence under Section 302 read with Section 149 IPC can any benefit of this judgment be

F given to Satya Narain (A 7). This Court in Raja Ram and 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. Again in Dandu Lakshmi Reddy v. State

of A.P., (1999] 7 SCC 69 this Court held :

G

H

"The ipother of the appellant Narayanamma is languishing in jail at

present pursuant to the conviction and sentence awarded to her in this

case. Of course her conviction is not before us as she did not file any

special leave petition. But this Court has set up a judicious precedent

for the purpose of averting miscarriage of justice in similar situations.

On the evaluation of a case, if this Court reaches the conclusion that

ANIL RAJ v. STATE OF BIHAR [THOMAS. J.] 323

no conviction of any accused is possible the benefit of that decision A

must be extended to his co-accused also though he has not challenged

the order

by means of an appeal petition to this court vide Raja Ram

v. State of M.P., [1994] 2

SCC 568."

I am of the opinion that under the facts and circumstances of the case,

A 7

is also entitled to the benefit of altered conviction and sentence. B

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 C

149 !PC. They are held guilty for the commission of offence punishable

under Section 148 read with Section 149 !PC 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 (A 7), 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 D

read with Section 149 is set aside and instead he is convicted under Section

148 read with Section 149 !PC and sentenced to three years rigorous

imprisonment. His conviction and sentence under Section 27 of the Arms Act

is upheld. The conviction and sentence awarded to A3 to A 7 shall run

concurrently.

If the aforesaid accused persons (A3 to A 7) have already E

undergone the sentences awarded to them, they shall be set at liberty forthwith

if not required in any other case.

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 F

I wish to add a few words on my own in support of all what

Sethi J. has said

about it.

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

is 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 the magistrates making

G

such a tremendous delay in the delivery of .his judgments." H

324 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A Now when two judges of the Patna High Court took two years for

B

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 to the High Court.

A glimpse on the situation of the case as it remained in the High Court

persuades me to feel that what happened in this case is only the tip of the

iceberg. When the sessions court convicted nine persons on different counts

including murder as per his judgment dated 4.5.1991, all the convicted persons

filed appeals before the High Court of Patna. While remaining in jail the

C convicted persons waited for their turn to reach for the High Court to get

time to hear their appeals. It took five years for such ,urn to reach. Advocates

engaged by them then addressed arguments before the Division Bench and

learned judges on conclusion

of arguments on 23.8.1995, adjourned the appeals

sine die for judgment. The convicted persons while remaining

in jail again

waited for the

D' day. The members of their family would naturally have

D been anxiously waiting for the same. but days and weeks and months and

even years passed without anything happening from the

Court. In the

meanwhile, one

of the convicted persons died in jail. By then even the anxiety

of the other convicted persons would have died down and appeals would

have been consigned to records.

It is difficult to comprehend how the judges

E would have kept the details and the nuance of the arguments in their memory

alive after the lapse

of a long long period.

Unfortunately, the judges concerned had

no concern until one of them

reached near the date

of his superannuation. They then reminded themselves

of the obligation of delivering the judgment. It was thus that the impugned

F judgment had come out, at last, from torpidity.

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

G 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

H expectation of the makers of the Constitution remained unsullied during the

ANILRAI v. STATE OF BIHAR [THOMAS, J.] 325

early period of the post Constitution years. But unfortunately, the later years A

have shown slackness on the part of a few judges of the superior Courts in

1

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 B

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 RC Sharma v.

VO!., [1976] 3 SCC 574 for expediting delivery C

of judgments. 1 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 pc ints which the D

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

E

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 F

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 :

G

(i) The Chief Justice 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 H

326

A

(ii)

B

(iii)

c

SUPREME COURT REPORTS (2001) SUPP. I S.C.R.

reserving the judgment and date of pronouncing it be separately

mentioned

by the court officer concerned.

That

Chief Justice 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.

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

D 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

E listed before the bench concerned within two days excluding the

intervening holidays.

F

(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

tg 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

judgmc·•t

G 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

substitute for the measures suggested by us here-in-before. But until such

H measures are evolved by the Chief justice of the concerned High Court we

ANIL RA! v. STATE OF BIHAR [THOMAS, J.] 327

expect that the measures suggested above would hold the field. I may also A

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. B

S.V.K. Appeals disposed of.