Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1953 Supreme(SC) 84

SUPREME COURT OF INDIA
5th October, 1953
MAHAJAN, B.K. MUKHERJEA AND JAGANNADHA DAS, JJ.
Habeeb Mohammad, Appellant
Versus
State of Hyderabad.
Criminal Appeal No. 43 of 1952.
Advocates appeared
Shri. B. J. M. Mackenna, Senior Advocate, (Shri. A. A. Peerbhoy and Shri J. B,. Dadachanji, Advocates, with him), instructed by Shri. Rajinder Narain, Agent, for Appellant; Shri V. Rajaram Iyer, Advocate-General of Hyderabad, (Shri . R. Ganapathy Iyer, Advocate with him), instructed by Shri. G. H. Rajadhyaksha, Agent, for Respondent.

Advocates:
A.A.PIRBHOY, B.J.M.MACKENNA, G.H.RAJADHYAKSHA, J.B.DADACHAN, R.Ganapathy Iyer, RAJENDER NARAIN, V.RAJA RAM IYER

Headnote:Section 172 (2)-Use of police diary.
       Held: A judge is in error in making use of the police diaries at all in
       his judgment and in seeking the confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries is the one allowed by section 172 - Article 136-Crbninal appeals-Circumstances under which Supreme Court will not interfere.
       Held: "In our opinion, as in substance there has been no fair and proper trial in this case, we are constrained to allow this appeal, set aside the conviction of the appellant under the different sections of the Hyderabad Penal Code and direct that he be set at liberty forthwith. It may well be pointed out that if there had been mere mistake on the part of the court below of a technical character which had not occasioned any failure of justice or if the question was purely one of this court taking a different view of the evidence given in the case, there would have been no interference by us under the provisions of Art. 136 of the Constitution. Such questions are as a general rule treated as being for the final decision of the courts below" (per Mahajan J.) - Section 252-Material witness-Inference from not producing Evidence Act, S. 114.
       Held: "In this situation it seems to us that Biabani who was a top ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth: and in any case, the court would have been well advised to exercise its discretionary powers to examine that witness. The witness was at the time of the trial in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution case from his non-production as a witness, in view of illustration (g) to section 114 of the Indian Evidence Act, but the circumstance of his being withheld from the court casts a serious reflection on the fairness of the trial. It seems to us that the appellant was considerably prejudiced in his defence by reason of this omission on the part of the prosecution and on the part of the Court." - Section 256(1)
       Held: Where no opportunity to produce relevant evidence is afforded to defence, conviction arrived at without affording such opportunity cannot be sustained. - Section 257 (I)-Documents required by accused reported to be destroyed-Procedure
       Held: "The appellants counsel produced before us a list of the documents which were asked for, some of which were brought into court and regarding some the report was that they were destroyed or were not available. We cannot accede to the contention of the learned counsel that the court was called upon to make investigation into the question whether the replies from different officers as to what documents were destroyed or were not available were correct or not. It was open to the counsel for the accused whenever any such report came, to challenge the statement and at that stage the court might have been in a position to ask the prosecution to support their replies by affidavits or otherwise." - Section 114-Inference from non-examination of material witness.

Judgement Key Points

Key Points: - (!) (!) The diaries may only be used as a aid during trial per Section 172, not as evidence; improper use can prejudice the accused. - (!) (!) The Court set aside the conviction due to lack of fair trial and refused retrial. - (!) (!) Omission to examine a material witness Biabani and other officers prejudiced the defence; prosecution failure to produce essential witnesses undermined fairness. - (!) (!) Failure to summon defence witnesses available in Hyderabad deprived the accused of full opportunity to defend. - (!) (!) Case diaries were not properly before the court; reliance on them was inappropriate and potentially prejudicial. - (!) (!) Evidence of character and state of mind relevant, but defence witnesses could have clarified narrative; denial of opportunity to lead such evidence undermined fairness. - (!) (!) After analysis, the Supreme Court quashed the conviction and ordered liberty; retrial deemed inappropriate. - (!) (!) Investigation was perfunctory with unexplained delays, affecting reliability of evidence. - (!) (!) Court declined to compel production of allegedly destroyed or unavailable documents; defense could challenge statements but not compel production. - (!) (!) Sanction and jurisdiction issues deemed not fatal; focus remained on fairness of trial.

What is the proper use of police diaries under Section 172 and 172(2), and will interference with or reliance on such diaries affect a conviction?

What is the standard for fair and proper trial in cases tried under Regulation X and the Hyderabad Penal Code, and does failure to summon material witnesses or defence witnesses constitute a denial of justice?

What are the adverse effects of late or withheld case diaries and non-production of material witnesses on the fairness of trial, and should a conviction be set aside or retried?

Judgment

MAHAJAN J.: This is an appeal by special leave from the judgment of the High Court of Judicature of Hyderabad upholding the conviction of the appellant by the Special Judge, Warangal, appointed under Regulation X of 1359-fasli, under sections 243, 248, 368, 282 and 124 of the Hyderabad Penal Code (corresponding to sections 302, 307, 436, 342 and 148, I.P.C) and the respective sentences passed under these sections against him.

2. The case for the prosecution which has been substantially accepted by the Special Judge and by the majority of the High Court is that the appellant was in the year 1947 the Subedar of Warangal within the State of Hyderabad, that on the 9th December 1947 he proceeded to the village of Gurtur situate within his jurisdiction at about 10 A. M. along with a number of police officials and a posse of police force ostensibly to raid the village in order to arrest certain bad characters, that when a party of villagers, 60 or 70 in number came out to meet him in order to make representations, he ordered the policemen to open fire on the unarmed and inoffensive villagers, as a result of which tailor Venkayya and Yelthuri Rama died of bullet wounds on the spot. Yelthuri Eradu and Pilli Malladu received bullet wounds and died subsequently, five others received bullet wounds but they recovered, that the appellant gave match boxed and directed the policemen to go into the village and set fire to the houses as a result of which 191 houses were burnt down; that about 70 of the villagers were tied up under the orders of the appellant and taken to Varadhanapeth and were kept under wrongful confinement for some time and thereafter some were released and others were taken to Warangal jail and lodged there; that these acts were done by the appellant without legal authority or legal justification and that he and the two absconding accused were therefore guilty of the offences of murder, attempt to murder, arson, etc.

3. The prosecution produced 21 witnesses in support of their case, while the accused examined a solitary witness in defence. The firing by the police, the death of the persons concerned, the arrest of some of the villagers and the burning down of the village houses on the date and the time in question are facts which were not disputed. But what was alleged by the defence was that the appellant did not give the order to fire, that the villagers were violent and attempted to attack the officials and the police by force and therefore whatever was done in self-defence. It was said that the raiders were arrested in due course of law and that the destruction of their houses by fire was committed by the villagers themselves, and that the appellant had gone to the village only to arrest Congress mischief-mongers and to maintain and enforce law and order.

4. The Special Judge on the materials before him came to the conclusion that the accused was guilty of the offences with which he stood charged. On appeal to the High Court of Hyderabad, a Bench of two Judges (Sripatrao and Siadat Ali Khan, JJ.) delivered differing judgments, Sripatrao, J. taking the view that the appeal should be dismissed and the other learned Judge being of the opinion that the appeal ought to be allowed and the accused acquitted. The case was then referred to a third Judge (Manohar Prasad, J.) who by a judgment dated 11th December 1950 agreed with the opinion of Sripatrao, J. and dismissed the appeal. The present appeal has been preferred against the judgment of the majority of the High Court by our leave.

5. This appeal was in the first instance heard by the Constitutional Bench and at that stage the hearing was confined to certain constitutional points which had been raised by the appellant attacking the legality of the entire trial which resulted in his conviction on the ground that the procedure for trial laid down in Regulation X of1359-F. became void after the 26th January 1950 by reason of its conflict with the equal protection clause emb

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