Appeal No 43 of 1952
Appeal by special leave granted by the Supreme Court of India on 11th May 1951 from the Judgment and Order dated 11th December 1950 of the Hyderabad High Court in Criminal Appeal No 5986 of 1950
BJ M Mackenna A A Peerbhoy and J B Dadachanji with him for the appellant
VRajaram Iyer R Ganapathy Iyer with him for the respondent  1953
October 5
The Judgment of the Court was delivered by 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 F under sections 243 248 368 282and 124 of the Hyderabad Penal Code corresponding to sections 302 307 436 342 and 148 Indian Penal Code and the respective sentences passed under these sections against him
The case for the prosecution which has been sub stantially 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 am 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 477 received bullet wounds and died subsequently five others received bullet wounds but they recovered that the appellant gave match boxes 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 arsonetc
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 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
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 allow he accused acquitted
The case was then to a third Judge Manohar Prasad J who by 478 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
This appeal was in the first instance heard by the Constitution Bencb1 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 of 1359 F became void after the 26th January 1950 by reason of its conflict with the equal protection clause embodied in article 14 of the Constitution
The constitutional points raised by the appellant failed and the application preferred by him under article 32 of the Constitution was rejected and the case was directed to be posted in the usual course for being heard on its merits and it is now before us
To appreciate the contentions raised on behalf of the appellant it is necessary to give a short narrative of the incident and the events following thereupon which led to the prosecution of the appellant
In the first information report lodged against the appellant on the 29th January 1949 it was said that the following persons accompanied the Subedar that morning 1
Moulvi Ghulam Afzal Biabani Deputy Commissioner District Police Warangal
Abdul Lateef Khan Circle Inspector of Police Warangal absconding accused
Military Assistant
Naseem Ahmed Sub Inspector Vardhanapeth
Head Constables of Police Vardhanapeth
Abdul Waheed Girdavar
Abdul Aleem Sahib Vakil of Hanamkonda
8 70 military men 10 policemen and 1 1 razakers
It appears that another person Abdul Wahid Assistant DSP also went with this party
He submi 1 See   479 a diary of the happenings at Gurtur on the same day
It was briefly stated therein that the people rebelled that they had to open fire and that 70 persons were arrested
Abdul Lateef Khan the absconding accused and who was the Circle Inspector of Police also submitted a diary the same day of the happenings of the 9th December
According to him a crowd of 5000 pursued the two persons who had been sent to the village and fired at the policemen threw stones by the slings by which Kankiah the jamedar was injured that one bullet fell in front of the Nayeb Nazim that the unlawful assembly shouting slogans against the Government tried to surround the policemen that the police tried to make them understand but they did not listen that the crowd was armed with guns spears lathis axes sickles and slings and that seeing the delicate circumstances the above mentioned high officers ordered the police to open fire in self defence
Turab Ali Sub Inspector of Police and Station House Officer Vardhanapeth on this information recorded the first information report under section 155 of the Hyderabad Penal Code on 9th December 1947 against Narsivan Reddy Congress leader of Mangp Banda and several others under sections 124 248 272 and 82 of the Hyderabad Penal Code
In this report the facts stated by Abdul Lateef Circle Inspector were reiterated
Turab Ali also prepared a panchnama on the same date the panches being Khaja Ahmed Wali Hyderi revenue inspector residing at Vardhanapeth and Md Abdul Wahid special Girdavar of the same place
The narrative of events given in the report of Abdul Lateef was recited in the panchnama
Annexed to this panchnama was a list of the articles and weapons recovered from the individuals arrested on the 9th December 1947
The list mentions a number of lathis spears sickles churas a muzzle loader and some axes
On the 11th December the appellant sent his report of the incident at Gurtur to Government and in this demi official letter substantially the account given by Abdul Lateef Circle Inspector was repeated and the justification for the firing was fully set out
Whether 480 Moulvi Afzal Biabani Deputy Commissioner of Police Warangal also submitted a report giving his version of the incident to Government or to the InspectorGeneral of Police is a debatable point
The Government replied to the D O letter on 21st January 1948 and called for a report from the Subedar as to how much collective fine was to be imposed on the villages mentioned in the D O letter
He was also asked to submit a resolution for the appointment of penal police soon so that sanction might be taken according to the procedure
On 13 March 1948 a challan was presented against 70 persons arrested on the 9th December 1947 by the police for offences under sections 124 248 etc
in the Court of the Special District Judge of Hyderabad
The accused were remanded to the Central Jail Warangal and it was ordered that if there were any material objects in the case the police should bring them at the next hearing viz 31st March 1948
On that date the special magistrate committed to the court of session 22 persons to be tried under sections 124 293 and 248 of the Hyderabad Penal Code
The rest of the persons arrested were discharged
The Special Judge fixed the case for hearing on 18th May 1948
On that date or some subsequent date in May the police put in an application withdrawing the case
The court accordingly acquitted all the accused and the proceedings initiated on the first information report of Abdul Lateef Circle Inspector thus terminated
On what grounds the case against these accused persons was withdrawn by the police is a matter which has been left unexplained on the record
Between the date of the withdrawal of this case and the police action in Hyderabad taken by the Government of India in September 1948 whether any investigation was made as to the incidents at Gurtur by the Government is not known but it appears that soon after the police action was over in November 1948 a statement was recorded of one Ranganathaswami who is a prosecution witness in the present case by one B J Dora Raj Deputy Collector on 5th November 1948 in which Ranga natahswami said as follows 481 On 9th December 1947 at about 10 30 am Habeeb Mohammad the Subedar Biabani the DSP Naseem the Sub Inspector Abdul Wahid Special Girdavar and about 70 persons State Police Razakars and Abdul Aleem Vakil had come to the village Gurtur taluqa Mahaboobad dist
Warangal
Policemen burnt nearly 200 houses by the order of the DSP It caused damage to the extent of Rs 1 lakh
Policemen fired the tailor Ramulu two dheds on the order of Biabani the DSP I do not know the names of the dheds
Five or six persons were injured
They were injured by the bullets
I do not know their names
At that time there I was doing the work of teaching
They arrested 70 persons saying that they are Congressmen and carried them forcibly to the Warangal jail 
They snatched gold ornaments of 8 tolas valuing Rs 400 from the women of Apana Raju and Narsivan Raju
I incurred loss of Rs 600 as the house in which I was staying was burnt
The school peon incurred loss of Rs 300 as his house was also burnt
When these above events were happening Subedar was present
They left the 70 persons who were put into the jail after taking Rs 600 bribe
I myself have seen the above events
I have read the statement
It is correct The statement bears an endorsement of the Deputy Collector to the effect that it was taken before him and was read over and admitted to be correct
It also appears that the Assistant Civil Administrator examined 76 villagers on the 28th November 1948 and their statement is to the following effect  On 9 12 47 at 9 30 am the Subedar of Warangal the Deputy Commissioner of Police Biabani who has a kanti on his neck Military Assistant Circle Inspector of Warangal Sub Inspector of Police of Vardhanapeth Head Constable of Police of Vardhanapeth Girdavar in the company of military police and 40 persons came to our village
Came from Okal and stayed out of the city on the west side
Nearly 100 or 150 persons of the Village went to them
They fired the guns by which Olsuri Eriah Olsuri Ramiah 482 and Kota Konda Venkiah died
Batula Veriah Basta Pali Maliah Olsuri Veriah Yeliah Ladaf Madar Dever Konda Lingiah and Beara Konda Peda Balraju were injured by the bullets
After this they entered into the village and after taking round in the bazar they got into the houses and looted
They looted money and clothes
Then they surrounded the village and gathering the village people took them out of the village
Made them lie down with face downwards and tied their hands and kept them in the same condition from 10 am to 3 pm
At 3 pm the Subedar gave match boxes to his men and told them to burn the houses
On this they burnt the houses
The Subedar made us stand and said see the Lanka Dahan of your village  The Deputy Commissioner also said the same thing
After this they beat us and took us to Mailaram
From there they carried us in a car to the police station Vardhanapeth 
The whole household utensils of the houses were looted due to which the damage amounted to one lakh
It was also learnt that they outraged the modesty of 4 women
They felt ashamed to state their names before the public
The women are ashamed to expose the names of the persons concerned
The names of these women are with the State Congress
 On the basis of these two statements the Inspector of CID District Police one Md Ibrahim Ghori wrote to the Sub Inspector of Police of Nalikadur dist
Warangal to issue the first information report for offences committed under sections 248 312 331 and 368 of the Hyderabad Penal Code against the Subedar and it was directed that the two sheets of original statements of the complainants should be sent to the court with the first information report and that he would himself investigate the case
On receipt of this letter the Sub Inspector of Police recorded the first information report for the offences mentioned above on 29th January 1949 in terms of the above letter
Though this first information report was recorded on 29th January 1949 the investigation of the case against the appellant did not start till the 8th August 49
What happened in this interval and why the 483 investigation was delayed by a period of over seven months is again a matter on which no explanation has been furnished on the record and the learned Advocate General who appeared On behalf of the State before us was unable to explain the cause of this delay in the investigation of the crimes alleged to have been committed by the appellant
On 28th August 1949 there was an order in terms of section 3 of the Special Tribunal Regulation V of 1358F which was in force at that time directing the appellant to be tried by Special Tribunal A
The Military Governor gave sanction for the prosecution of the appellant on 20th September 1949
On 13th December 1949 a new Regulation Regulation X of 1359 F was passed by the Hyderabad Government which ended the Special Tribunals created under the previous regulation and upon such termination provided for the appointment powers and procedure of the Special Judge
On 5th January 1950 the case of the appellant was made over to Dr Laxman Rao Special Judge who was appointed under the above regulation under an order of the Civil Administrator Warangal to whom power under section 5 of the Regulation was delegated and on the same day the Special Judge took cognisance of the offences with the result already indicated
Mr McKenna who argued the appeal on behalf of the Subedar contended that his client was considerably prejudiced by certain grave irregularities and illegalities committed in the course of the trial by the Special Judge and that there had been a grievous disregard of the proper forms of legal process and violation of principles of criminal jurisprudence in such a fashion as amounted to a denial of justice and that injustice of a serious and substantial character has occurred
The first ground of attack in this respect was that a number of material witnesses including Moulvi Afzal Biabani Deputy Commissioner of Police who accompanied the Subedar and witnessed the occurrence and who could give a narrative of the events of the 9th December 1947 were not produced by the prosecution 64 484 though some of them were alive and available that these witnesses were essential for unfolding the narrative on which the prosecution was based and should have been called by the prosecution no matter whether in the result the effect of their testimony would have been for or against the case for the prosecution
The facts relating to Biabani are these Admittedly he was a member of the party that visited village Gurtur on the fateful morning of the 9th December 1947
There can be no doubt that he was a witness of this occurrence and could give a narrative of the incidents that happened there on that day
In the statement of Ranganathaswami cited above which accompanied the first information report against the appellant it was asserted that the firing took place under the orders of Biabani and the houses were burnt by his order
In the challan that was prepared on the first information report lodged under the directions contained in the letter of Md Ibrahim Ghori Inspector of CID District Police against the appellant and the two absconding accused it was alleged that the accused merely on the pretext that the village Gurtur was the headquarters of the communists raided the village with the aid of the armed police force that the villagers appeared before the accused but accused I the appellant in view of the general policy of the Ittehad ul Muslimeen that the Hindus might be killed and be forced to run away from Hyderabad and to achieve this object opened fire on them that as a result of the firing two villagers were killed on  the spot two of them died in the hospital five others badly injured that when the villagers took to their heels the appellant distributed match boxes amongst the police Constables and ordered them to go into the village habitation loot and burn the houses and molest the villagers
In this challan the whole burden for the crimes committed on 9th December was thrown on Habeeb Mohammad in spite of the fact that in the documents accompanying the first information report this burden had been thrown on Biabani the Deputy Commissioner of Police 485 PW 21 the investigating officer was questioned on this point and he deposed that in the course of the in vestigation the offence was only proved against the appellant and the two absconding accused and that it was not proved that Ghulam Afzal Biabani Deputy Inspector Genaral of District Police or Nasim Ahmad Sub Inspector of Police or Jamedar of Police Vardhanapeth Abdul Wahib Revenue Inspector or Abdul Alim pleader or the military police had committed any crimes or aided or abetted and for this reason their names were not mentioned therein
The prose cution in these circumstances in the list of prosecution witnesses mentioned the name of Biabani as PW 2 but for some unexplained reason it did not produce him as a witness during the trial
No explanation has been given by the prosecution for withholding this material witness from the court who was the most responsible officer next to the Subedar present at the time of the occurrence and who was at the time of the trial holding an important office under Government and who presumably would have given the court an accurate and true version of what took place
On 24th March
1950 the appellant made an application to the Special Judge alleging inter alia that though a number of police officers and other officials were present at the scene of occurrence including Ghulam Afzal Biabani Kankiah Abdul Wahid Girdawar who was then confined in Warangal jail Naseem Ahmad Sub Inspector of Police Vardhanapeth Khaja Moinuddin Police Jamedar Abdul Ghaffar Khan Reserve District Police Inspector Turab Ali Sub Ins pector Vardbanapeth and Shaik Chand Police Inspector they were neither arrested nor any action taken against any of them that the investigating officer Ibrahim Ghori and Sub Inspector of Nallikudur police station were not produced in court that though Kankiah Jamedar was presented to give evidence Ghulam Afzal Biabani ex Deputy District Police Commissioner was not produced
It was alleged in this application that when this objection was raised on behalf of the accused the Government Pleader said that 486 they could not produce him and if the honourable court so desired it may summon him
It was further alleged therein that the conduct of the
prosecution showed that they were endeavouring to incriminate the accused who was not guilty and on the other hand were trying to shield the police constables and officers and that the Government Pleader had refused to produce the best evidence that could be produced in the case
It was stated that in those circumstances it would be in conformity with justice that the court should inquire into the facts and summon the persons mentioned above under section 507 of the Code of Criminal Procedure and record their statements in  order to find out the real facts
It was said further that Ghulam Afzal Biabani ex Deputy District Police Commissioner who was then in service in the Police Training School had sent a report with regard to the  incident to the Inspector General of Police and to the Secretary to Government Home Department
On this application the learned Judge recorded the following order The application of the accused is not worth con sideration because neither the complainant nor the accused can persuade the court in this way
This right can be exercised only to settle a defect in the evidence
Otherwise it is not to be exercised at all
The right should be exercised only to rectify the defects of any of the parties
The accused has full right to adduce defence witnesses
Even after producing the defence evidence if anything is omitted the court by itself will settle it
This application is filed beforehand
 Order was however made to summon the report if any made by Ghulam Afzal Biabani
In his judgment convicting the appellant regarding Biabani the learned Judge made the following observations  I regret to learn from Kesera Singh investigating officerthat such a man is in service ie in the capacity of Principal of Police Training School Will he impart to the would be subordinate officers the same lesson of protection of life and property of royts
487 And in this case the said Biabani is not challenged only because he is a police officer
This should not be construed in this sense that as the police left Biabani scot free because they favoured him so also the court should leave Habeeb Mohamed
A strange logic that  you left one therefore I leave the other  will continue
 It is difficult to support such observations made behind the back of a person
Such observations could only be made after giving an opportunity to Biabani to explain his conduct
Before the High Court Mr Walford who argued the case stressed the point that the police ought to have produced Ghulam Afzal Biabani to prove the fact that it was the appellant who ordered firing and in the alternative the court should have summoned him as a court witness
This argument was disposed of by reference to the decision of their Lordships of the Privy Council in Adel Mohammad vs Attorney General of Palestine1 wherein it was observed that there was no obligation on the prosecution to tender witnesses whose names were upon the information but who were not called to give evidence by the prosecution for cross examination by the defence and that the prosecutor has a discretion as to what witnesses should be called for the prosecution and the court will not interfere with the exercise of that discretion unless it can be shown that the prosecutor has been influenced by some oblique motive
It was held that in view of these observations it could not be said that the prosecution committed any mistake in not producing Afzal Biabani or that it had been influenced by some oblique motive
It was further held that no occasion arose for interfering with the discretion exercised by the Special Judge under section 507 Hyderabad Criminal Procedure Code and that the evidence of this witness could not be regarded as essential for the just decision of the case
The dissenting Judge Siadat Ali Khan J took the view that Biabani was the second top ranking officer at the occurrence and as his report was not forthcoming 1 AIR 1945 PC 42
488 there was a lacuna in the record and that it was the duty of the court to call him as a witness
In the judgment of the third Judge Manohar Prasad J it is stated that Mr Murtuza Khan who appeared for the accused did in course of his arguments concede that from the documents filed it appeared that the order of fire was given by the appellant
Mr Murtuza Khan who is a retired Judge of the Hyderabad High Court has filed an affidavit contesting the correctness of this observation
On the question therefore whether the order to fire was given by the appellant we have the solitary testimony of PW 10 Kankiah the police Jamedar contrary to the statements contained in the document accompanying the first information report and even in his deposition it is said that the police officer took instructions from Biabani before carrying out the orders of the appellant
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
The reasons given by the learned Judge for refusing to summon Biabani do not show that the Judge seriously applied his mind either to the Provisions of the section or to the effects of omitting to examine such an important Witness
The terms in which the order of the Special Judge is couched exhibit lack of judicial balance in a matter which required 489 serious consideration
The reliance placed on the decision of their Lordships of the Privy Council in Adel Mohammad vs Attorney General of Palestine1 is again misplaced
That decision has no bearing on the question that arises in the present case
The case came from Palestine and the decision was given under the provisions of the Palestine Criminal Code Ordinance 1936
The contention there raised was that the accused had a right to have the witnesses whose names were upon the information but were not called to give evidence for the prosecution tendered by the Crown for cross examination by the defence
The learned Chief Justice of Palestine ruled that there was no obligation on the prosecution to call them
The court of criminal appeal held that the strict position in law was that it was not necessary legally for the prosecution to put forward these witnesses
They however pointed out that in their opinion the better practice was that the witnesses should be so tendered at the close of the case for the prosecution so that the defence may cross examine them if they so wish
Their Lordships observed that there was no obligation on the part of the prosecution to tender those witnesses
They further observed that it was doubtful whether the rule of practice as expressed by the court of criminal appeal sufficiently recognised that the prosecutor had a discretion as to what witnesses should be called for the prosecution and the court would not interfere with the exercise of that discretion unless perhaps it could be shown that the prosecutor was influenced by some oblique motive
No such suggestion was made in that case
The point considered by their Lordships of the Privy Council there as somewhat different from the point raised in the present case but it is difficult to hold on this record that there was no oblique motive of the prosecution in the present case for not producing Biabani as a witness
The object clearly was to shield him who possibly might be a co accused in the case and also to shield the other police officers and men who formed the raiding party
In our opinion the true rule 1 AIR 1945 PC 42 490 applicable in this country on the question whether it is the duty of the prosecution to produce material witnesses has been laid down by the Privy Council in the case of Stephen Senivaratne vs The King 1 and it is in these terms  It is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as Ram Ranjan Boy vs Emperor 2 to the effect that all available eye witnesses should be called by the prosecution even though as in the case cited their names were on the list of defence witnesses
Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case
Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions but at the same time they cannot speaking generally approve of an idea that a prosecution must call witnesses irrespective of consi derations of number and of reliability or that a pro secution ought to discharge the functions both of prosecution and defence
If it does so confusion is very apt to result and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross examination
Witnesses essential to the unfolding of the narrative on which the prosecution is based must of course be called by the prosecution whether in the result the effect of their testimonyis for or against the case for the prosecu tion
 In a long series of decisions the view taken in India was as was expressed by Jenkins CJ in Ram Banjan Boy vs Emperor2 that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent not the police but the Crown and this duty should be discharged fairly and fearlessly with a full sense of 1 AIR 1936 PC 289
2 ILR 491 the responsibility attaching to his position and that he should in a capital case place before the court the testi mony of all the available eye witnesses though brought to the court by the defence and though they give different accounts and that the rule is not a technical one but founded on common sense and humanity
This view so widely expressed was not fully accepted by their Lordships of the Privy Council in Stephen Senaviratne vs The King1 that came from Ceylon but at the same time their Lordships affirmed the proposition that it was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the events on which the prosecution is essentially based and that the question depended on the circumstances of each case
In our opinion the appellant was considerably prejudiced by the omission on the part of the prosecution to examine Biabani and the other officers in the circumstances of this case and his conviction merely based on the testimony of the police jamedar in the absence of Biabani and other witnesses admittedly present on the scene cannot be said to have been arrived at after a fair trial particularly when no satisfactory explanation has been given or even attempted for this omission
Another grave irregularity vitiating the trial and on which Mr McKenna laid great emphasis concerns the refusal of the Special Judge to summon six defence witnesses whom the appellant wished to call
The facts relating to this matter are these On the 24th March 1950 the appellant filed a list of defence witnesses containing the following names 1
Moulvi Syed Hussain Sahib Zaidi Ex District Superintendent of Police Warangal who was then special officer Bahawalpur State Pakistan
Moulvi Abdul Hamid Khan Ex Secretary Revenue Department at present Minister for Sarf e Khas Mubarak
Nawab Deen Yar Jung Bahadur Ex Inspector
General of Police Districts and City
1 AIR 1936 PC 289
65 492 4
Moulvi Abdul Rahim Ex Railway Minister
Rai Raj Mohan Lal Ex Law Minister
Moulvi Zahir Ahmed Ex Secretary to Government Home Department at present residing at London
The first witness was called to prove that the inhabit ants of Gurtur committed destructive activities and threw stones on the police and that the police fired in self defence by the order of the Deputy Police Commissioner of the District
It was said that he would also reveal many other facts
Regarding the second witness it was said that he would depose as to what happened to the D O letter sent by the accused and he would also reveal other facts
Regarding the third witness it was said that he would confirm the report of Ghulam Afzal Biabani the Deputy Commissioner of Police and would reveal other facts about Gutur incidents
About the fourth and fifth witnesses it was said that they would depose about the accused s efficiency and his behaviour towards ryots and they would also reveal other facts
On 14th April 1950 an application was made by the pleader for the accused that instead of sending for Syed Hussain Zaidi Superintendent of Police residing at Pakistan Abdur Rasheed Khan Sahib former Assistant Superintendent of Police Warangal district may be sent for
The learned Judge on this made the following order This request is improper
The application of the accused dated 24th March 1950 about the list of the defence witnesses may be referred
In it the first name is of Zaidi the Superintendent of Police
It is written in it by the accused himself that Mr Zaidi will say whatever he has heard from the other policemen
Now I cannot understand when it is written so in the list how can Abdur Rasheed be called for instead of Zaidi and what evidence he will give
So the application to call for Abdur Rasheed Khan Sahib is disallowed
 Regarding witness No 2 Abdul Hameed Khan the learned Judge made the following order 493 It is stated that he will speak about the efficiency of the accused and also about his behaviour towards his subjects
Efficiency and behaviour is neither a point at issue in this case nor a relevant fact section 216 Criminal Procedure Code and section 110 sections 3 and 4 of the Evidence Act may be referred
It is also written below it that he will state what action was taken on the DO letter of the accused
No such paper is produced to show as to what has happened to the proceedings for which Abdul Hameed Khan can be summoned to prove
Besides this the statement of the accused is in regard to something and witness Abdul Hameed Khan is being summoned for some other thing
 Regarding the third witness the Judge said as follows Nawab Deen Yar Jung Bahadur former Inspector General of Police is called for to certify the report of Ghulam Afzal Biabani Deputy Director of Police
The report of Ghulam Afzal Biabani was called for from the office of the Inspector General of Police Home Secretary and from the office of the Civil Administrator Warangal
But from all these offices we have received replies stating that there is no report of Ghulam Afzal Biabani
In the light of these replies it is unnecessary to summon Deen Yar Jung Bahadur
When there is no report what can Regarding witnesses 4 and 5 the Judge observed as follows These witnesses are called for to state about the efficiency and behaviour of the accused
It is not a point at issue nor a relevant fact
 Regarding witness 6 the Judge thought that there was no procedure to summon a witness residing in London
Finally it was observed that by seeing the list of witnesses and the defence statement of the accused which are many pages it appears that these applications are given only to prolong the case unjustifiably and to disturb the justice
These are not worthy be allowed
So the said application dated 494 24th March 1950 is disallowed
 Section 257 Criminal Procedure Code which corresponds to section 216 of the Hyderabad Criminal Procedure Code is in these terms   If the accused after he has entered upon  his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross examination or the production of any document or other thing the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice
Such ground shall be recorded by him in writing
 We have not been able to appreciate the view of the learned Judge that the application to summon defence witnesses who were available in Hyderabad was of a vexatious character and its object was to delay or defeat the ends of justice
There was controversy in the case between the prosecution and the defence about the motive of the accused which was stated by the prosecution to be that in pursuance of the policy of the Ittehad ul Muslimeen and with the common object of destroying the Hindus and turning them out of Hyderabad the appellant went to this village to achieve that object with the help of the police
The accused was entitled to disprove the allegation and prove his Version that the village was in a state of rebellion that the people who came out in a crowd did not come with peaceful motives but they were aggressive and were armed with weapons that he was not inimical to the Hindus that his behaviour towards them had always been good and his state of mind was not inimical to them and the idea of exterminating them was far from his mind
Under the provisions of section 53 of the Evidence Act evidence as to the character of an accused is always relevant in a criminal case
So is the evidence as to the state of his mind
Evidence as to disturbed condition prevailing at Gurtur and of the destructive activities of its inhabitants was also a relevant fact
Whatever may be said about the other 495 witnesses three of the witnesses named in that list were certainly material witnesses for the purpose of the defence
In criminal proceedings a man s character is often a matter of importance in explaining his conduct and in judging his innocence or criminality
Many acts of an accused person would be suspicious or free from all suspicion when we come to know the character of the person by whom they are done
Even on the question of punishment an accused is allowed to prove general good character
When the allegation against the appellant was that he was acting in pursuance of the policy of the Ittehad ul Muslimeen that his state of mind was to exterminate the Hindus he was entitled to lead evidence to show that he did not possess that state of mind  but that on the other hand his behaviour towards the Hindus throughout his official career had been very good and he could not possibly think of exterminating them
But even if the Judge was right in thinking that the evidence of character in this particular case would not have affected materially the result the evidence of other witnesses who would have deposed as to whether Biabani had submitted a report and what version he had given or of those who were able to depose as to the condition of things at Gurtur where the incident took place or who were in a position to depose from reports already submitted to the Home Department and the Inspector General of Police about the behaviour of the villagers of Gurtur would have very materially assisted the defence if those witnesses were able to speak in favour of the appellant s contention
In our opinion the trial before the Special Judge was vitiated by his failure in summoning the defence witnesses who were available at Hyderabad and who might have materially helped to prove the defence version
The first witness or his substitute may well have been able to depose as to what happened to the arms that were alleged to have been captured from the villagers on the 9th December 1947 and regarding which a panchnama was prepared and as to whether they existed in fact or not
That would have thrown a flood of light on the character of the 496 mob that was fired upon and it may well have transpired from that evidence that the firing was ordered at the instance of Biabani and not at the instance of the accused as alleged in the first instance by Ranganathaswamy
In the result we are constrained to hold that the accused has been denied the fullest opportunity to defend himself
Another point that was stressed by the learned counsel for the appellant is that the police investigation into the offences with which the appellant has been charged after the first information report has been lodged in January 1949 has been not only of a perfunctory nature but that there has been an unexplained delay of more than six months in making it and this has considerably prejudiced the defence
It was suggested that during this period most likely the police was cooking evidence against the accused without making any entries in the case diaries of statements made by the villagers
On this question it is necessary to set out a part of the statement of PW 21 the investigating officer on which reliance was placed to support this contention
In cross examination the witness said as follows I went for investigation in the month of Mehir 1358 F August 1949 Union officers did not investigate prior to my investigation not even any  Collector undertook any investigation Mohd Ibrahim Ghori Inspector CID informed Sub Inspector of Nallikadur through a D O dated the 29th Isfandar 1358 F to issue an information report
I have no knowledge which officer ordered Mohd Ibrahim Ghori to investigate and who signed on it
Superintendent of CID Police whose name I do not remember now gave order to Mohd Ibrahim Ghori to investigate the facts
Now the case diary is not with me The names of Mohd Ibrahim and Achal Singh are not mentioned in the witnesses lists of A  B Charges under sections 312 and 331 are mentioned in the report but during my investigation these offences were not proved The Superintendent of CID Police gave me order to 497 investigate but I do not remember the date of that order now
I prepared panchnamas on 8th Mehar 1358 F probably I reached Gurtur one or two days earlier
I finished circumstantial investigation with in eight days
Afterwards proceedings for permission were continued
At last on 28th August 1949 the Civil Administrator gave order to file a challan  
In the course of my investigation it was proved that accused Habeeb Mohammad Abdul Latif Khan and Abdul Wahid had committed crimes
It was not proved during the course of my investigation that Ghulam Afzal Biabani Deputy I G of District Police Assistant of Force Nasim Ahmad Saheb Sub Inspector of Police Vardhanapeth Jamedar of Police Vardhanapeth Abdul Wahid Revenue Inspector Abdul Alim Saheb pleader Hanamkonda 70 military men and police and Razakars bad committed crimes or aided and abetted
Therefore their names were not mentioned in the challan
The crimes against them are not proved means that they are not identified  the witnesses are not acquainted with them so they are not prosecuted
Though in the information report 70 military men were mentioned I found in the course of my investigation 70 policemen only
I could not make out the identity of these policemen but I came to know that they belonged to Warangal district police force
I do not know how many of them were Hindus and how many were Muslims
But the names of Kankiah police jamedar head constable and Abdul Latif Khan Circle Inspector were evident from the diary  therefore it is produced as evidence
On enquiry Kankiah said to me that he could not identify them now and that he could not recollect the number of policemen who went along with him Kankiah to Vardhanapeth
I could not see the register at Superintendent s office to ascertain who went there because it was destroyed during the police action
When I asked the line inspector in this connection he replied that he could not even say whether the register was destroyed and that he could not remember the names now
As I could not gather any information from them I did not refer their names in the case diary 
I had not 498 even mentioned about line inspector in the case diary because I considered it unnecessary
From other source also I could not make out the identity of these 70 men
Ghulam Afzal Biabani Deputy Inspector General of Police is alive and in service and I have heard that he is now the Principal of the Police Training School
I cannot tell who was Assistant of Force
I do not know the whereabouts of Nasim Ahmad as well as about his post
I did not make enquiries about Police Jamedar of Vardhanapeth who was mentioned in the information report in regard to his identity and whether he is alive or dead because I could not find out his name from my witnesses
Further I do not know who was Shaik Chand
But I came to know from Kankiah that Shaik Chand was present on the scene of occurrence
Now I do not know about the whereabouts of Shaik Chand or about his job
None of the other witnesses recognised Shaik Chand and that I had not paraded him before the witnesses because I do not know his whereabouts
Though Jamedar Kankiah deposed that Abdul Ghaffar Police Inspector was present on the scene of occurrence the other witnesses were not acquainted with him
Whether Abdul Majid Revenue Inspector was on the place of occurrence or not I could not make out and further whether he is alive or dead too I could not make out
Except Ghulam Afzal Biabani I did not examine any of the other men ie Assistant of Force Nasim Ahmed Police Jamedar of Vardbanapeth Abdul Wahid Revenue Inspector and others
I remember that after circum stantial investigation at Gurtur I went to Hyderabad and enquired the facts to Ghulam Afzal Biabani orally I did not take any statement from him
Whatever I enquired from him I entered in the case diary
I do not know what Ghulam Afzal Biabani reported to the high authority and whether he had reported it or not reported at all
I did not question him about it
I do not remember the name of the police patel of Gurtur village
I did not take his statement and he did not give any report in regard to this occurrence
Guns were not recovered because the 499 incident occurred one year ago and persons were not identified
 It is apparent from this statement that the investigation conducted by PW 21 was of a very perfunctory character
Apart from PW 10 Kankiah none of the policemen or other I officers or panches present at the scene of occurrence were examined and even their whereabouts were not investigated
This is all due to the circumstance that though the depositions of the villagers were recorded in November 1948 against the conduct of the appellant and though the first information report against him was lodged in January 1949 for some reason of which no plausible or satisfactory explanation has been suggested the matter was not investigated and relevant evidence as to this incident whether for or against the appellant was not recorded for a period of over six months
It is not unreasonable to presume that during this period of seven or eight months that evidence became either unavailable or the villagers after this delay in investigation were not able to satisfactorily identify any of the persons who were present on the occasion
It seems to us that there is force in the contention that a good deal of material evidence was lost and considerable material that might have been helpful to the case of the defence or which would have fully established the part played by the accused was in the meantime lost
In this situation the learned counsel in the courts below as well as in this court laid emphasis on the point that the case diaries were not brought into court till after the close of the case and they were withheld to avoid any controversy of this nature and this omission had also resulted in a trial which was perfunctory and prejudicial to the accused
During the examination of the investigating officer the question was put to him whether he had the case diaries
The cross examining counsel wanted to elicit from him certain materials about the conduct of the investigation after he had refreshed his memory from those diaries but PW 21 deposed that he had not the diaries with him and the matter was closed at 66 500 that stage
On 12th April 1950 an application was made to the court asking for copies of statements of PWs
recorded by the police
This application was obviously a belated one as the accused had no right to get the copies after the statements of those witnesses had been recorded by the Judge
The diaries were brought into court on 18th April 1950
The learned Special Judge in his judgment on this point said as follows I have sent for the case diary relating to Superin tendent of CID in confidential on the prayer of the accused
I have seen it intently
Statements therein are almost the same as are deposed in the court
The statements of witnesses would not become unreliable even in view of the entries made in the case diary
 Section 162 Criminal Procedure Code which concerns police diaries and the use that can be made of them is in these terms  No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced to writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made  Provided that when any witness is called for the prosecution in such inquiry or trial Whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement if duly proved may be used to contradict such witness in the manner provided by section 145 of the 
When any part of such statement is so used any part thereof may also be used in the re examination of such witness but for the purpose only of explaining any matter referred to in his cross examination
 501 Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries not as evidence in the case but to aid if in such inquiry or trial
It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking 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 was the one allowed by section 172 Criminal Procedure Code ie during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused
This he did not do because the diaries were not before him
It was pointed out in Rex vs Mannu1 by a full court that a special diary may be used by the court to assist in an inquiry or trial by suggesting means of further elucidating points which need clearing up and which are material for the purpose of doing justice between the Crown and the accused but not as containing entries which can by themselves be taken to be evidence of any date fact or statement therein contained
The police officer who made the diary may be furnished with it but not any other witness
The Judge made improper use of the diary by referring to it in his judgment and by saying that he intently perused it and the statements of witnesses taken in court were not inconsistent with those that were made by the witnesses before the police officer
It is difficult to say to what extent the perusal of the case diaries at that stage influenced the mind of the judge in the decision of the case
It may well be that that perusal strengthened the view of the judge on the evidence against the appellant and operated to his prejudice
If there was any case in which it was necessary to derive assistance from the case diary during the trial it was this case and the investigating officer who appeared in the witness box instead of giving unsatisfactory answers to 2ILR 19 All390
502 the questions put to him might well have given accurate answers by refreshing his memory from those diaries and cleared up the lacunae that appear in the prosecution case
It was next contended that a number of documents that the accused wanted for his defence were not produced by the prosecution and were intentionally withheld
Reference in this connection may be made to an application submitted by the accused to the court on the 20th April 1950
It reads thus  As many documents were called for in defence of the accused it was replied from the police or from the Home Department that the documents in question were either destroyed in the course of the police action or as they are confidential could not be sent
You are requested to review the excuses put forth by the police or other departments
In Warangal proper neither any firing took place nor any offices were burnt
I and Taluqdar Sahib lived in the headquarters for many months after the police action
Taluqdar Sahib lived for four months after the police action and I lived there for nearly one month after the police action
Each and every document of my office and Taluqdar s office are safe and which can be ascertained by the Civil Administrator Warangal himself
This is my last prayer to you to send immediately today for summary of intelligence of second third and fourth weeks of the month of Bahman 1357 F from the office of the Peshi of Mr Obal Reddy the District Superintendent of Police Warangal
These weekly reviews are confidential which are prepared at the CID branch of the office of the Inspector General of Police and despatched to the districts
The District Superintendents of Police used to send these reviews to the Deputy Commissioner of Police Subedars and Taluqdars
The Gurtur incident was mentioned in them
If they are not available from the office of the District Superintendent of Police Warangal they may be called for from the office of the Inspector General of Police CID and they may be held in the record
 503 On this application the court recorded the following order The way in which the accused Habeeb Mohamed remarked on the higher office that documents are either not received or that they are destroyed is not the proper way of remarking
Investigation against officers cannot be conducted
Besides this in this file all other things are decided and the accused was given sufficient time
Filing of an application on every hearing is not to be tolerated
 The appellant s 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
It however does appear somewhat curious that important documents which were required by the defence to establish the appellant s version of the incident are stated to have been destroyed or not available
Such bald assertions do not create much confidence in the mind of the court and it does not appear that there was any occasion during police action for the officer responsible for it to destroy records made by police officers and submitted to the Inspector General of Police or to the Home Secretary
The appellant to a certain extent was justified in such circumstances to ask the court to raise the inference that if these documents were produced they would not have supported the prosecution story
The learned Advocate General appearing for the State contended that assuming that the failure of the prosecution to examine Biabani has caused serious 504 prejudice to the accused or that the denial of opportunity to him to examine certain witnesses in defence has also caused him serious prejudice this court may direct the High Court to summon the witnesses and record their statement and transmit them to this court and that the appeal may be decided after that evidence has been taken
In our opinion this course would not be proper in the peculiar circumstances of the present case
It is not possible without setting aside the conviction of the appellant to reopen the case and allow the prosecution to examine a material witness or witnesses that ought to have been produced and allow the defence also to lead defence evidence
A conviction arrived at without affording opportunity to the defence to lead whatever relevant evidence it wanted to pro  duce cannot be sustained
The only course open to us in this situation is to set aside the conviction
The next question for consideration is whether in the result we should order a retrial of the appellant
After a careful consideration of the matter we have reached the conclusion that this course will not be conducive to the ends of justice
The appellant was in some kind of detention even before he was arrested
Since January 1949 up to this date he has either been in detention or undergoing rigorous imprisonment and sirce the last three years he has been a condemned prisoner
The events regarding which evidence will have to be taken afresh took place on the 9th December 1947 and after the lapse of six years it will be unfair and contrary to settled practice to order a fresh trial
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 mistakes 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 article 136 of the Constitution
Such questions 505 are as a general rule treated as being for the final decision of the courts below
In these circumstances it is unnecessary to examine the merits of the case on which both the learned counsel addressed us at some length
 Before concluding however it maybe mentioned that Mr McKenna apart from the points above mentioned raised a few other points of a technical character but on those points we did not call upon the learned Advocate General in reply
It was contended that the court did not examine the accused under section 256 Criminal Procedure Code after further crossexamination of the witnesses
In our opinion this omission was not material as nothing further appeared from the cross examination which the court could ask the accused to explain
The accused had given a full statement on all the matters which required explanation in the case
Then it was argued that under the Hyderabad law at least two witnesses are necessary in a murder trial for a conviction in such a case
In this case more than two witnesses were produced who directly or indirectly implicated the appellant with the commission of the murder
The section of the Code referred to does not lay down that there should be two eye witnesses of the occurrence before a conviction can be reached as regards the offence
Further it was argued that the  Special Judge had no jurisdiction because H E H the Nizam had not given his assent to the law as contained in Ordinance X of 1359 F
In our opinion there is no substance in this contention because the Nizam under a fireman bad delegated all his powers of administration including power of legislation to the Military Governor and that being so no further reference to the Nizam was necessary and the Military Governor was entitled to issue the Ordinance in question
Lastly it was argued that the sanction for the prosecution of the appellant under the provisions of section 207 of the Hyderabad Code of Criminal Procedure corresponding to section 197 of the Criminal Procedure Code was given after the Judge had taken cognizance of the case
We see no force in this point as well
Before the trial started 506 the court was fully seized of the case and by then the sanction had been given
Appeal allowed
Conviction set aside


Summary:
Though the prosecution is not bound to call all available witnesses irrespective of considerations of number or reliability witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution
Where the case against the accused a Subedar was that he gave orders to the police to fire and the Deputy Commissioner of Police who had accompanied the accused and had witnessed the occurrence was not examined by the prosecution Held that the failure to examine him not only led to an adverse inference against the prosecution case but also cast serious reflection on the fairness of the trial
Adel Mohammad vs Attorney General of Palestine AIR1946 PC 42 distinguished
Stephen Senivaratne vs The King AIR 1936 PC 289 relied on
Ram Banjan Roy vs Emperor I referred to
Police diaries of a case under inquiry or trial can be made use of by a criminal court only for aiding it in such inquiry or trial
The court would be acting improperly if it uses them in its judgment or seeks confirmation of its opinion on the question of appreciation of evidence from statements contained in those diaries
Though the Supreme Court would not interfere under article 136 of the Constitution if there were mere mistakes on the part of the court below of a technical character which had not occasioned any failure of justice or the question was purely one of the court taking a different view of the evidence given in the case it would interfere if in substance there has not been Is fair and proper trial
Where material eye witnesses were not examined to disprove the prosecution case as to the motive of the accused the court without calling for the police diaries during the trial stated in the 63 476 judgment that the statements made by the witnesses before the police were the same as those made by them in the court Held that there was in substance no fair and proper trial and the conviction should be set aside