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SUPREME COURT OF INDIA
6th May 1954.
B.K. MUKHERJEA, BOSE AND GHULAM HASAN, JJ.
Aftab Ahmad Khan, S/o Hakim Mohamad Yar Khan, Appellant
Versus
The State of Hyderbad.
Criminal Appeal No. 82 of 1953.
Advocates appeared
A. A. Peerbhoy, J. B. Dadachanji and Rajindar Narain., Advocate, for Appellant; Messrs. Porus A. Mehta and P. G. Gokhale, Advocates, for the State of Hyderabad.
An application was made for copies of the statements forre-cross-examin8tion of witnesses which obviously referred to the last stage of the prosecution evidence. The Court ordered that the case diaries and the statements were in Court and the accuseds counsel could look into them with a view to help him in the re-cross-examination of the witnesses but if the court later felt the necessity of furnishing copies, the matter would be considered. No complaint was made before the trial Judge about any prejudice having been caused to the accused by this order nor was this point taken before the High Court. But in the appeal before the Supreme Court the accused complained that as he was not furnished with the copies of the statf3ments of prosecution witnesses recorded by the Police he was hampered in cross-examining the witnesses with reference to their previous statements: and there fore had no for trial.
Held: (1) Even if the accused had any legitimate ground for grievance on that score he would have raised it before the High Court and he having not done so there was no substance in the point.
(2) While under S. 162 of the Criminal Procedure Code it is the duty of the court to direct a copy of the statement of a witness recorded by the Police in the course of investigation to be furnished to the accused with a view to enable him to cross-examine such a witness with reference to his previous statement, no such duty is imposed by S. 166 of Hyderabad Penal Code and the matter is left entirely to the discretion of the Court. - Sections 233, 235-Joint charges and joint trials.
Held: Section 233 of the Code embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every such charge should be tried separately. There is no doubt that the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and tried together but the legislature has engrafted certain exceptions upon this rule contained in sections 234, 235,236 and 239. On the facts the present case falls under S. 235. "These incidents related in the evidence leave no manner of doubt that from the moment the appellant started from the Police Station, he committed a series of acts involving killing, injuring people, unlawfully confining others and extorting money from one of them. We are satisfied that the series of acts attributed to the appellant constitute one transaction in which the two offences which are alleged to be distinct were committed. The case falls squarely within the purview of section 235 of the Code and we are, therefore, of 6pinion that such misjoinder was permitted by the exception." The fact that the offence of extortion was committed at a different place and at a different time does not any the less make the act as one committed in the course of the same transaction. - Section 186-Duty of prosecution.
A Reserve Inspector of police in the State of Hyderabad was accused of having committed the offence of murder and extortion while on a visit to a village. Direct evidence of the offence was produced in the case. But the accused denied the offence and stated that he had not left the headquarters on the crucial date and contended that it was the duty of the prosecution to produce his attendance register for the relevant period in order to put the matter beyond doubt. It was found that the register containing the -entries for the relevant period had been destroyed during the Police action.
Held: (1) It was not any part of the duty of the prosecution to produce Such evidence particularly when direct evidence of the offence had been produced.
(2) Since the register containing the material entries was destroyed, it was impossible for the prosecution to discharge the alleged burden of proving the entries in the duty register on the material date. - Section 367-BlHlis of judgment.
Held: "It is true that the learned Judge has made copious quotations verbatim from the evidence of the witness and his comment upon the evidence is not as full and detailed as might be expected but this practice of writing judgments in this way seems fairly general in Hyderabad though we cannot help saying that it is not to be commended. It is the obvious duty of the court to give a summary of the evidence of material witnesses and to appraise the evidence with a view to arriving at the conclusion whether the testimony of the witnesses should be believed. We do not think, however, that the criticism that the judgment is mechanical and does not show a proper appreciation of the evidence is well-founded.
Judgment
GHULAM HASAN, J.:
The appellant was tried and convicted by the Special Judge, Warangal, for various offences under the Hyderabad Penal Code. These correspond to Sections 302, 307, 347 and 384 of the Indian Penal Code, the sentences awarded under the first two sections respectively being death and life imprisonment, and separate sentences of two years rigorous imprisonment under the latter two. The two learned Judges of the High Court, who heard the appeal differed Manohar Pershad. J upholding the convictions and the sentences and M. S. Ali Khan, J. acquitting the appellant. The third learned Judge A. Srinivasachari, J. on reference which was occasioned by the difference of opinion agreed with Manohar Pershad. J Leave to appeal to this court was granted by the two agreeing Judges.
2. The occurrence which led to the prosecution of the appellant took place on September 13, 1948, which was the beginning of the first day of Police action in Hyderabad. The appellant, who was Reserve Inspector of Police stationed at Mahbubabad at the material time, according to the Prosecution story, visited two villages Rajole and Korivi accompanied by a number of Razakars and the Police. He arrested Janaki Ramiah (P. W. 5) and Nerella Ramulu (P. W. 9) at Rajole and took them to Korivi.
Outside this village in the waste land he spotted four men going to their fields and shot at them with his gun. The deceased Mura Muthiah and Somanaboyamma Muthandu (P. W. 2) were injured in the knee, while the other two Kotta Ramiah (P .W. 3) and Kanchan Latchiah (P. W. 4) were uninjured. The latter two hid themselves behind the babul trees. P. W. 2 also ran away and hid himself in the bajra fields a few yards away but the deceased remained, where he fell.
The appellant searched for the three persons who had run away. He caught P. W. 3 & P. W. 4 and brought them to the spot where the deceased was lying but he could not trace P. W. 2. The appellant seeing that Mora Muthiah was not dead, shot him in the chest and killed him. the whole party consisting of P. W. 3 P. W. 4, P. W. 5and P. W. 9 then went to Korvi village. The appellant stayed at the house of one Maikaldari in the village and spent the night there.
Maikaldari and one Berda Agiah (P. W. 8) both asked the appellant why he had arrested P. W. 3 and P. W. 4 for they were not Congressmen. Upon this the appellant released them. The Prosecution story proceeds that the father (P. W. 1) of the deceased saw the appellant in the night of the 13th September and asked him why he had killed his son. The appellant without saying more advised him to cremate the dead body. P. W. 1 borrowed wood from the people and cremated the body.
Four months later the appellant went and stayed at the Government bungalow Korivi, sent for P. W. 1 and offered him Rs. 200/- as hush money for not disclosing the offence. The offer was refused. P. W. 3 and P. W. 4 who had been released told that father of P. W. 2 next morning that his son was lying injured in the bajra field. He went and had P. W. 2 removed the hospital where his injuries were attended to.
On the same morning the appellant, who had detained P. W. 5 and P. W. 9 in custody, asked them to pay Rs. 200/- when they would be released. P. W. 5 went with a constable to the house of P. W. 6 and P. W. 7 and borrowed Rs. 100/- from each of them. On this being paid he was leased. P. W. 9 was unable to pay any money and he was left off.
3. The defence was a denial of the offence. The appellant denied having gone to the village in question or having committed any of the offences attributed to him. He stated that he was posted at Mahbubabad in order to stop the subversive activities of the communists and that the witnesses being communists had falsely implicated him. He produced witnesses in defence.
4. The first Information Report was lodged on April 14 1949. This delay was due to the disturbed conditions prevailing at the time and does not affect the truth of the story. The appellant was
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