Aftab Ahmad Khan Vs. The State of
Hyderabad [1954] INSC 59 (6 May 1954)
HASAN, GHULAM MUKHERJEA, B.K.
BOSE, VIVIAN
CITATION: 1954 AIR 436 1955 SCR 588
ACT:
Criminal Procedure Code (Act V of 1898), ss.
233, 235-Scope of s. 233-Law as to joinder of charges-exception there to
enacted in s. 235--Joint trial of distinct offences.
HEADNOTE:
Section 233 of the Code of Criminal Procedure
(Act V of 1898) embodies the general law as to the joinder of charges and lays
down a rule that for every distinct offence there should. be a 589 separate
charge and every such charge should be tried separately. No doubt 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
are tried together but the Legislature has engrafted certain exceptions upon
this rule contained in sections 234, 235, 236 and 239.
Section 235 of the Code of Criminal Procedure
provides that if in one series of acts so connected together as to form the
same transaction, more offences than one are committed by the same person, he
may be charged with, and tried at one trial for every such offence.
The prosecution story showed that the offence
of extortion committed on a particular day was one of a series of acts
connected with the offence of murder and attempt to murder committed on their
previous day in such a way as to form one transaction.
The incidents related in the evidence left no
doubt that from the moment the accused (a Reserve Inspector of Police) started
from the Police State, he committed a series of acts involving killing,
injuring people, unlawfully confining others and extorting money from one of
them and therefore the series of acts attributed to him constituted one
transaction in the course of which two offences which were alleged to be
distinct were committed.
Held, that under the circumstances the case
fell within the purview of section 235 of the Code of Criminal Procedure and
such joinder was permitted by the exception enacted in that section.
Where the two Judges of the High Court on
appeal are divided in their opinion as to the guilt of the accused and the
third Judge to whom reference is made agrees with one of them who is upholding
the conviction and sentence, it is desirable as a matter of convention though
not as a matter of strict law that ordinarily the extreme penalty should not be
imposed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 82 of 1953.
Appeal under article 134(1)(c) of the
Constitution of India from the Judgment and Order dated the 16th August, 1953,
of the High Court of Judicature at Hyderabad in Criminal Appeal No. 1557/6 of
1950, arising out of the Judgment and Order dated the 16th October, 1950, of
the Court of Special Judge, Warangal, in Case No. 28/2 of 1950.
A. A. Peerbhoy, J. B. Dadachanji and Rajinder
Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the
respondent.
590 1954. May 6. The Judgment of the Court
was delivered by 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.
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 Somanaboyanna Muthandu (P.W. 2)
were injured in the knee, while the other two Kotta Ramiah (P.W. 3) and Kancham
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 and 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 591 consisting of P.W. 3, P.W. 4, P.W. 5 and P.W. 9
then went to Korivi 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
Congress men. 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. I
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. I
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 the 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 to 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 released. P.W. 9 was unable to pay any
money and he was let off.
The defence was a denial of the offence. The
appellant denied having zone 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.
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 prosecuted and the charge sheet submitted against him on
October 30, 1949. The charge was framed by a Munsiff Magistrate who committed the
appellant to the Sessions. As already ,stated, the learned Special Judge
convicted and 592 sentenced the appellant and his convictions and sentences
were upheld by a majority of two Judges.
It has been argued by Mr. Peerbhoy, learned
counsel on behalf of the appellant, that his client had no fair trial and has
detailed a number of circumstances as supporting his contention. We think it
unnecessary to deal with each and every one of these circumstances as in our
opinion they do not affect the substance of the matter and are too trifling to
justify the conclusion that the appellant suffered any prejudice or that any
miscarriage of justice had resulted.
We shall confine ourselves only to a few of
them which need examination. It was complained that the appellant was not
furnished with copies of the statements of prosecution Witnesses recorded by
the Police and this hampered the appellant in cross-examining the witnesses
with reference to their previous statements. It appears that the appellant
filed an application through counsel on August 28, 1950, asking for copies of
such statements under section 162 of the Code of Criminal Procedure. The
corresponding section of the Hyderabad Penal Code is 166 which is not the same
as section 162. While under section 162 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 crossexamine
such a witness with reference to his previous statement, no such duty is
imposed by section 166 and the matter is left entirely to the discretion of the
Court.
This application was made for
re-cross-examination of witnesses which obviously refers to the last stage of
the prosecution evidence. The order passed on the application as translated is
unintelligible and does not convey the real intention of the Court. The
original which was shown to us, however, leaves no doubt whatever that the
Court ordered that the case diaries and the statements were in Court and the
appellant's 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 Special Judge about any prejudice having been caused to the 593
appellant by this order, nor was this point taken before the High Court. Had
the appellant any legitimate ground for grievance on this score, he would no
doubt have raised it before the High Court. We think, therefore, that there is
no substance in this point.
It was also contended that the prosecution
should have produced the duty register of the appellant who wasa Government
servant in order to put the matter beyond doubt whether, the accused had left
the Headquarters on the crucial date. We do -.lot think that it was any part of
the duty of the prosecution to produce such evidence, particularly in view of
the fact that direct evidence of the offence was produced in the case. It
appears, however, that the appellant himself summoned the Sub-Inspector of
Police with the attendance register for 1358 Fasli, corresponding to October,
1948. The Deputy Superintendent of Police in his letter had stated that the
entries for October were made in the register for 1357 Fasli and that register
was destroyed during the Police action. The appellant's counsel inspected the
register and on noticing that the entry for October did not find a place
therein and had been made in the previous register for 1357 Fasli, which was
destroyed during the Police action, he withdrew the witness. The appellant
satisfied himself from the inspection of this register that the desired entries
were not to be found. 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.
It was also faintly contended that there was
no evidence to show that Mura Muthiah had actually died. The father of the
deceased gave evidence that the dead body of his son was cremated by him and in
this he was supported by other witnesses. There is no force in this point.
Upon the whole we are satisfied that the
appellant has not been able to substantiate his contention that he did not have
a fair trial.
The next contention advanced by the
appellant's learned counsel is that there was a misjoinder of 76 594 charges,
-that though the charges of murder and attempt to murder could be joined and
tried together, the charges of extortion and wrongful confinement were distinct
offences for which the appellant should have been charged and tried separately
as required by the mandatory provisions of section 233 of the Code. The first
two offences took place on September 13, 1948, in the night, while the act of
extortion took place next morning on the 14th and the latter charge had nothing
whatever to do with the offences committed on the previous night. Learned
counsel contends that where, as here, there is disobedience to an express
provision as to the mode of trial contained in section 233, the trial is wholly
vitiated and the accused is not bound to show that the misjoinder has caused
any prejudice to him.
The contention is based on the case of
Subramania Ayyar v. King-Emperor(1) showing that the misjoinder of distinct
offences being prohibited by the express provision of the Code renders the
trial illegal and does not amount to a mere irregularity curable by section
537. This was a case in which the accused was charged with 41 acts extending
over a period of two years which was plainly against the provisions of section
234 which permitted trial only for three offences of the same kind if committed
within a period of twelve months. The decision of Lord Halsbury, Lord
Chancellor, in this case was distinguished in the case of Abdul Rahman v. The
King-Emperor (1) by the Privy Council. That was a case of conviction on a
charge of abetment of forgery in which the depositions of some witnesses were
not read over to the witnesses but were handed over to them to read themselves.
It was held that though the course pursued
was in violation of the provisions of section 360, it was a mere irregularity
within section 537 and that as no failure of justice had been occasioned, the
trial was not vitiated. Both the above cases were referred to by the Privy
Council in Babulal Chaukani v. King-Emperor(1).. The question in that case
arose as to the true effect of section 239(d), which provides that persons who
are (1) 28 I.A. 257.
(2) 541.A. 96, (3) A.I.R. 1938 P.C. 130, 595
accused of different offences committed in the course of the same transaction
may be charged and tried together. The question was whether the correctness of
the joinder which depends on the sameness of the transaction is to be
determined by looking at the accusation or by looking at the result of the
trial. It was held that the relevant point of time is the time of accusation
and not that of the eventual result. The charges in this case were conspiracy
to steal electricity and theft of electricity both under the Electricity Act
and under the Penal Code. The Privy Council referred to the fact that the
parties had treated an infringement of section 239(d) as an illegality
vitiating the trial under the rule stated in Subramania Ayyar v. King Emperor(1)
as contrasted with the result of irregularity as held in Abdul Rahman v. The
King,, Emperor (2) . The Privy Council merely assumed it to be so without
thinking it necessary to discuss the precise scope of the decision in
Subramania's case, because in their view the question did not arise. Again in
Pulukuri Kottaya and Others v. Emperor (3) the Privy Council treated a breach
of the provisions of section 162 of the Code as a mere irregularity curable
under section 537 and as no prejudice was caused in the particular
circumstances of that case, the trial was held valid.
Reference was made to Subramania Ayyar v.
King-Emperor(1) as one dealing with the mode of trial in which no question of
curing any irregularity arises but if there is some error or irregularity in
the conduct of the trial, even though it may amount to a breach of one or more
of the provisions of the Code, it was a mere irregularity and in support of
this reference was made to Abdul Rahman v. The King-Emperor(1).
Several decisions of the High Courts were
referred to in course of the arguments with a view to showing what is the true
state of the law in view of the Privy Council decisions referred to above but
we do not think that that question arises in the present case. We are of opinion
that the present is not a case under section 233 of the Code and it is,
therefore, unnecessary to consider whether the violation of its provisions
amounts to an illegality vitiating the trial altogether (1) 28 I.A. 257.
(2) 54 I.A. 96.
(3) A.I.R. 1947 P.C. 67.
596 or it is a mere irregularity which can be
condoned under section 537. Section 233 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 are tried together but the Legislature
has engrafted certain exceptions upon this rule contained in sections 234, 235,
236 and 239. Having regard to the facts and the circumstances of this case, we
are of opinion that the present case falls under section 235. It provides that
if in one series of acts so connected together as to form the same transaction,
more offences than one are committed by the same person, he may be charged
with, and tried at one trial for, every such offence. The prosecution story as
disclosed in the evidence clearly shows that the offence of extortion committed
on the 14th September was one of a series of acts connected with the offence of
murder and attempt to murder committed on the previous day in such a way as to
form the same transaction. The prosecution case was that when the appellant
accompanied by his party came, he caught hold of two persons (P.W. 5 and P.W.
9) at Rajole and proceeded to Korivi. He took them into custody without any
rhyme or reason. Then outside the village seeing the deceased, P.W. 2, P.W. 3 and
P. W. 4 he shot at them. The deceased fell down while the others ran away. He
pursued them and brought two of them back to the spot where the deceased was
lying but was yet alive. He shot him in the chest and killed him. Then he
proceeded to the village itself where he stayed for the night. He released P.
W. 3 and P. W. 4 on the intercession of certain persons but kept P. W. 5 and P.
W. 9 in wrongful confinement and released them only next morning after
extorting Rs. 200 from P. W. 5.
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 597 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 opinion that such misjoinder was permitted by
the exception. No question of contravention of any express provision of the
Code such as section 233 arises and in the circumstances it is not necessary
for us to consider how far the violation of any express provisions of the Code
relating to the mode of a trial or otherwise constitutes an illegality which
vitiates the trial as distinguished. from an irregularity which is curable
under section 537. This conclusion in our opinion disposes of the contention
about misjoinder of the charges. 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.
Turning to the merits of the matter, we are
not satisfied that any prejudice was caused to the appellant in fact. It is not
possible to say that the Court being influenced by the evidence on the question
of extortion was easily led into the error of believing the evidence on the
question of murder. The witnesses on the point of extortion are P.W. 5 and P.W.
9. These are the two persons who were taken away from village Rajole and were
wrongfully confined, P.W. 5 being released on payment of Rs. 200 and the other
let off without payment. These two witnesses are also witnesses to the fact of
murder, in addition to the other three witnesses, P.W. 2, P.W. 3 and P.W. 4.
P.W. 5 was injured by the gun-shot but survived. The other two were scared on
hearing the gun-shot and ran away taking protection under the babul tree. It is
not possible to contend that the Sessions Judge having believed the evidence of
extortion from P.W. 5 must have been persuaded into believing that the story of
murder deposed to by him must be correct, for there is not only the evidence of
P. W. 5, but three other independent witnesses.
Lastly it was contended that the judgment of
one of the agreeing Judges Manohar Pershad J. is purely 598 mechanical and does
not show that he has applied his mind to the facts of the case. No such
complaint is made about the judgment of the other agreeing Judge Srinivasachari
J. It is true that the learned Judge has made copious quotations verbatim from
the evidence of the witnesses 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 witness 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.
The prosecution evidence was believed by the
trial Judge and the defence evidence to the effect that the deceased was killed
by the Military and that the appellant was not present at the time of the
occurrence was disbelieved. This finding was accepted by both the learned
agreeing -Judges.
This Court cannot interfere with the finding
arrived at, on an appreciation of the evidence. We are satisfied that there is
no good ground for disturbing the conviction of the appellant.
The only question which remains for
consideration is whether the sentence of death is the appropriate sentence in
the present case. No doubt there are no special circumstances which justify the
imposition of any other but the normal sentence for the offence of murder. We
think, however, that where the two Judges of the High Court on appeal are
divided in their opinion as to the guilt of the accused and the third Judge to
whom reference is made agrees with one of them who is upholding the conviction
and sentence, it seems to us desirable as a matter of convention though ,not as
a matter of strict law that ordinarily the extreme penalty should not be
imposed. We accordingly, while maintaining the conviction of the appellant,
reduce his sentence to one of transportation for life. In other respects the
appeal stands dismissed. All the sentences will run concurrently.
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