iminal Appeal No 82 of 1953
Appeal under article 1341c 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 15576 of 1950 arising out of the Judgment and Order dated the 16th October 1950 of the Court of Special Judge Warangal in Case No 282 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
two learned Judges of the High Court who heard the appeal differed Manohar Pershad J upholding the convictions and the sentences and M section 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 131948 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 PW 5 and Nerella Ramulu PW 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 PW 2 were injured in the knee while the other two Kotta Ramiah PW 3 and Kancham Latchiah PW 4 were uninjured
The latter two hid themselves behind the babul trees
PW 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 PW 3 and PW 4 and brought them to the spot where the deceased was lying but he could not trace PW 2
The appellant seeing that Mora Muthiah was not dead shot him in the chest and killed him
The whole party 591 consisting of PW 3 PW 4 PW 5 and PW 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 PW 8 both asked the appellant why he had arrested PW 3 and PW 4 for they were not Congress men
Upon this the appellant released them
The prosecution story proceeds that the father PW 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
PW 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 PW I and offered him Rs 200 as hush money for not disclosing the offence
The offer was refused
PW 3 and PW 4 who had been released told the father of PW 2 next morning that his son was lying injured in the bajra field
He went and had PW 2 removed to the hospital where his injuries were attended to
On the same morning the appellant who had detained PW 5 and PW 9 in custody asked them to pay Rs 200 when they would be released
PW 5 went with a constable to the house of PW 6 and PW 7 and borrowed Rs 100 from each of them
On this being paid he was released
PW 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 141949
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 cross examine 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 was a Government servant in order to put the matter beyond doubt whetherthe 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 vs King Emperor1 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 vs 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 vs King Emperor1
The question in that case arose as to the true effect of section 239d which provides that persons who are 1 28 IA 257
2 541A 96 3 AIR 1938 PC 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 239d as an illegality vitiating the trial under the rule stated in Subramania Ayyar vs King Emperor1 as contrasted with the result of irregularity as held in Abdul Rahman vs 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 vs 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 vs King Emperor1 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 vs The King Emperor1
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 IA 257
2 54 IA 96
3 AIR 1947 PC 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 PW 5 and PW 9 at Rajole and proceeded to Korivi
He took them into custody without any rhyme or reason
Then outside the village seeing the deceased PW 2 PW 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 PW 5 and PW 9
These are the two persons who were taken away from village Rajole and were wrongfully confined PW 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 PW 2 PW 3 and PW 4
PW 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 PW 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 inde pendent 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


Summary:
There are four Medical Colleges in the City of Bombay all affiliated to the University of Bombay
Out of four three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra
Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt
vide Govt
Resolution dated June 18 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges
Both the aforesaid Rules provide for collegeate institu tional preference for admission in the MD Course
In other words in each college candidates who passed their MBBS exam from that college were to be preferred for purposes of admission to the Post Graduate MD degree no matter wheth er the candidates had secured less marks than those who secured higher marks having passed the MBBS Exam
from other colleges
On this basis some candidates who were not able to secure admission to the MD Course in the respec tive colleges from which they had passed their MBBS Examination were not also admitted in the other medical colleges in the City of Bombay in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above
Those studentscandidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn
and the State Govt
in the High Court as being violative of article 14 of the Constitution
The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt
Medical College as discriminatory and violative of article 14 of the Constitution and thus in valid
Hence these appeals by Special Leave
Dismissing the appeals with some directions the Court HELD When the University is the same for all these colleges the syllabus the standard of examination and even the examiners are the same any preference to candidates to the post graduate degree course of the same University except in order of merit will exclude merit to a great extent affecting the standard of educational institutions
In such circumstances college wise institutional prefer ence cannot be supported and this Court has not approved of such preference at all
931F G So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates any preference other than in order of merit will not stand the test of article 14 of the Constitution
932C D The Rules are discriminatory and do not satisfy the test of reasonable classification and as such cannot be sus tained
The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate MD Course pursuant to the impugned Rules their admission shall not be interfered with or disturbed
933E The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate MD Course for the next year
The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate MD Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules the appellants may take into consideration the sug gestions of the High Court
934G H 935A Dr Pradeep Jain vs Union of India  Ors   distinguished
Nidamarti Mahesh Kumar vs State of Maharashtra  Ors
   not applicable
921 Jagdish Saran  Ors
vs Union of India  Ors
   not applicable
State of Rajasthan  Anr
vs Dr Ashok Kumar Gupta  Ors   not applicable