# HABEEB MOHAMMAD v. THE Sl'ATE OF HYDERABAD. f MEJ-m CHAND MAHAJAN, MuKHERJEA and JAGANNADHADAS JJ. J

- **Citation:** [1954] 1 S.C.R. 475
- **Court:** Supreme Court of India
- **Decided:** 1951-05-11
- **Case number:** Criminal Appeal No. 43 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/habeeb-mohammad-v-the-sl-ate-of-hyderabad-f-mej-m-chand-mahajan-mukherjea-and-307
- **Pages:** 32

## Headnote

:S.C.R.
SUPREME COURT REPORTS
HABEEB MOHAMMAD
v.
THE Sl'ATE OF HYDERABAD.
f MEJ-m CHAND MAHAJAN, MuKHERJEA and
JAGANNADHADAS JJ. J
475
Constitution of India, art.
136-Criminal appeal-Interference
-Guiding principl~$-Failure to call material
eye~witness-Failure
--io issue process to important defence witnesses-Using police diaries
..ar 11:orroborative evidence-Refusal to produce material documents-
·validity
of
trial-Interference
on
appeal-Criminal
Procedure
·Code, 1898, ss. 162, 172, 257-Evidence Act (l of 1872), ss. 53,
"
114, illustration (g).
Thou&h
the prosecution
is
not bound to call
all available
witnesses 1rrespect1ve
ot
considerations
of number or reliability,
witnesses essential to the unfolding of the narrative on which the
prosecution is based Jnust 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 Comnissioner 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 r~flection on the fairness of the trial.
Adel Mohammad v. Attorney-General of Palestine (A.LR. 1945
P. C. 42) distiguished. Stephen Senivaratne v. The King (A.I.R.
1936 P.C. 289) relied on. Ram Ranjan Roy v. Emperor (I.L.R. 42
Cal. 422) 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
th~ 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
~ny 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 a fair and proper
trial
Where rr:ater1al 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
1953
Oct. 5.
1953
Habeeb
Mohammad
v.
The State of
Hyderabad.
476
SUPREME COURT REPORTS
[1954]
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.
APPELLATE
JuRISDICTION : Criminal
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. 598/6 of W50.
B. f. M. Mackenna (A. A. Peerbhoy and f. B.
Dadachanji, with him) for the appellant.
V. Rajaram 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, 282 and 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 substantially accepted by the Special Judge and by the
majority of the High Court is that the appellant was
in the year 1947 the Subedar of Warangal within the
State of Hyderabad, that on the 9th December, 1947,
he proceeded to the village of Gurtur situate within
his jurisdiction at about 10

## Text

_Characters 0–39,997 of 70,326. This is a partial read: ask again with offset=39997 for what follows._

:S.C.R.
SUPREME COURT REPORTS
HABEEB MOHAMMAD
v.
THE Sl'ATE OF HYDERABAD.
f MEJ-m CHAND MAHAJAN, MuKHERJEA and
JAGANNADHADAS JJ. J
475
Constitution of India, art.
136-Criminal appeal-Interference
-Guiding principl~$-Failure to call material
eye~witness-Failure
--io issue process to important defence witnesses-Using police diaries
..ar 11:orroborative evidence-Refusal to produce material documents-
·validity
of
trial-Interference
on
appeal-Criminal
Procedure
·Code, 1898, ss. 162, 172, 257-Evidence Act (l of 1872), ss. 53,
"
114, illustration (g).
Thou&h
the prosecution
is
not bound to call
all available
witnesses 1rrespect1ve
ot
considerations
of number or reliability,
witnesses essential to the unfolding of the narrative on which the
prosecution is based Jnust 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 Comnissioner 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 r~flection on the fairness of the trial.
Adel Mohammad v. Attorney-General of Palestine (A.LR. 1945
P. C. 42) distiguished. Stephen Senivaratne v. The King (A.I.R.
1936 P.C. 289) relied on. Ram Ranjan Roy v. Emperor (I.L.R. 42
Cal. 422) 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
th~ 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
~ny 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 a fair and proper
trial
Where rr:ater1al 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
1953
Oct. 5.
1953
Habeeb
Mohammad
v.
The State of
Hyderabad.
476
SUPREME COURT REPORTS
[1954]
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.
APPELLATE
JuRISDICTION : Criminal
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. 598/6 of W50.
B. f. M. Mackenna (A. A. Peerbhoy and f. B.
Dadachanji, with him) for the appellant.
V. Rajaram 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, 282 and 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 substantially accepted by the Special Judge and by the
majority of the High Court is that the appellant was
in the year 1947 the Subedar of Warangal within the
State of Hyderabad, that on the 9th December, 1947,
he proceeded to the village of Gurtur situate within
his jurisdiction at about 10 a.m. along with a number
of police officials and a posse of police force ostensibly
to raid the village in order to arrest certain bad
characters, that when a party of villagers, 60 or 70 in
number, came out to meet him in order to make representations, he ordered the policemen to open fire on
the unarmed and inoffensive villagers, as a result of
which tailor Venkayya and Y elthuri Rama died of bullet
wounds on the spot, Yelthuri Eradu and Pilli Malladu
•
:S.C.R.
SUPREME COURT REPORTS
477
received bullet wounds and died subsequently, five
<>thers received bullet wounds but they recovered, that
the appellant gave match boxes and directed the policemen to go into the village atid 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
<lone by the appellant without legal authority or legal
justification and that he
and
the two absconding
·accused
were
therefore
guilty
of
the offences of
murder, attempt to murder, arson, etc.
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 main-
·tain 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-
·ed and the accused acquitted. The case was then
:referred to a third Judge (Manohar Prasad J.) who by
1953
Habeeb
Mohammad
v.
Thi Stal• of
HyderafJad •
Mahajan].
1953
Habeeb
Mohammad
v.
The State of
Hyderabad.
Mahajan J.
478
SUPREME COURT REPORTS
[1954!
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 Bench(') and at that stage the
hearing
was confined to certain constitutional points which
had been raised by the appellant attackirg 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 c0nflict 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 appellau.
In the first information report lodged against the·
appellant on the 29th January, 1949, it was said that
the f?llowing persons
accompanied the
Subedar that
mornmg :-
1. Moulvi
Ghulam Afzal Biabani, Deputy
Commissioner, District Police, Warangal.
2. Abdul Lateef Khan, Circle Inspector of Policer
Warangal (absconding accused).
3. Military Assistant.
4. Naseem Ahmed, Sub-Inspector, Vardhanapeth.
5. Head-Constables of Police, Vardhanapeth.
6. Abdul Waheed Girdavar.
7. Abdul Aleem Sahib, Vakil of Hanamkonda.
8. 70 military men, 10 policemen and 11 razakars.
It appears that another person Abdul Wahid, Assist-·
ant D.S.P., also went with this party. He submitted!
(') See [1953] S.C.R. 661.
S.C.R.
SUPREME COURT REPOR'rs
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 a:Q.d 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 5,000,
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. TurabAli, 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 Mango 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 vVali Hyder, revenue
inspector, residing at Vardhanapeth and Md. Abdul
Wahid, special Girdavar of the sa,me 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 mlJzzle-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.
·'Vhethe~·
1953
Habeeb
Mohammad
v.
Tho State of
Hyderabad.
MahajanJ
1953
Ilabceb
.. l!o!tammad
v.
7
1he State of
Hyderabad.
iYahajan J.
480
SUPREME OOUR1' REPORTS
[1954.J
Moulvi Afzal Bia bani, Deputy Commissioner of Police,
Warangal, also submitted a report giving hi§ version
of the incident to Government or to the Inspector .
General of Police is a debatable point. The Govern·
ment 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, 194 7, 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 hear·
ing on 18th May, 1948.
On that date or some subsequent date in ]\fay the police put in an application
withdrawing the case.
The court aecordingly 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 Ranga11/Lthaswami said as follows:-
(
--
8.C.R.
SUPREME COURT REPORTS
481
"On 9th December, 1947, at about 10-30 a.m.
Habeeb Mohammad the Subedar, Biabani the D.S.P.,
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
D.s:P. It caused damage to the extent of Rs. l lakh.
Policemen fired the tailor Ramulu, two dheds, on the
order of Bia bani, the D.S.P. 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 a.m. 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
Vardbanapeth, Head-Constable of Police ofVardhanapeth, 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
1953
Habeeb
Mohammad
v.
The State of
Hyderabad.
Mahajan J,
1953
Habeeb
lit ohamn;ad
v.
The State of
Hyderabad.
Mahajan J.
482
SUPREME COURT REPORTS
[1954]
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 a.m. to 3 p.m. At 3 p.m. 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 earned 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 Iakh. 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 C.I.D. District Police, one Md. Ibrahim Ghori, wrote
to the Sub-Inspector of Police of Nalikadur, dist.
Warangal, to issue the first information report f()r
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
Jetter 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 tillthe 8th August,
1949, What happened in this interval and why the
/
/
" I
S.C.R:
SUPREME COURT REPORTS
483
investigation was· delayed by a period of_ over seven
months js 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.
Miiitary 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, provid-
. ed 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, \V arangal,
to whom power under section 5 of the Regulation was
delegated and on the same day the Special Judge took
congnisance of the offences with the result already
indicated.
11r. 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 . th.e 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
ch~racter has occurred. The
first ground of ,attack. in this respect was that a number
of material witnesses, including Moul vi Afzal Biabani,
Deputy · CGmmissioner of Police, . who accompanied the
Subedar and. witnessed the occurrence : and who could
give- a narrative of,.: .the e\·ents of the: 9th .. · Decem-
. _her, _1947, were :n()t.; produced.: by the
'prosecution~
1953
Hahteb
}.fohammail
v.
TM Stal• of
llytfcrahad.
-·
~fahajan j ..
\
1953
HabetO
lYlohammad
v.
TM Stat10f
Hyderabad.
Mahajan :J.
484
SUPREME COURT REPORTS
. [1954]
though s?me of them were alive and available, that
these
witnesses
were essential
for
uqfolding 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 pm·
secution. 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 ehallan that was
prepared on the first information report lodged· under
the directions contained in the letter. of Mr. Ibrahim
Ghori, Inspector of C.l.D., District Police,
against the
appellant and the two absconding accused it was
alleged that the acrused 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 1 (the appellant) in view of the
general policy of · the lttehad-ul-Muslimenn that the
Hindus might . be killed and be forced to run away
from Hyderabad and to achieve this object opened fire
-0n .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
mateh boxes amongst the police constables and ordered···
them to go into the village habitation, loot and burn
the l!ouses and molest the . villagers. In this ehallan
the whole burden for the crimes committed on 9th
December was thrown on Habeeb Mohammad in spite
-0f the fact that in the documents accompanying the
. first information report this burden had been thrown
<>n
Biabani,
the
Deputy Commissioner of Police.
<
..
S.C.R.
SUPREME COURT REPORTS
485 ·.
P.W. 21, the investigating officer, was questioned on
this point and he deposed that in the course of the investigation the offence was only proved against the
appellant and the two absconding accused and that it
was not proved that Ghulam Afzal Bia bani, Deputy
Inspector-General 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 prosecution in these circumstances in the list of prosecution
witnesses mentioned the name of Biabani as P.W. 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 plac~:
On 24th March, 1950, the appellant made an application to the Speci~l Judge alleging, inter alia, that
though a number of police officers and other officials
were present at the scene of occurrence including
Ghulam Afzal Bia bani, 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-Inspector, Vardhanapeth, 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 evi~ence,
· Ghulam Afzal Biabani, ex-Deputy District Police Commissioner, was not produced. It was alleged in this
application that when this objection was raised on be-
. half of the accused~ the Qovernment Pleader said that
19.53
Habeeb
1lfohammad
v,
The State uf
Hyderabad.
MahajanJ.
1953
ff abeeb
Mohammad
v.
'1-'he State of
.ff yderabad.
Maha}anJ.
.486
SUPREME COURT REPORTS
[1954]
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 ~pplication of the accused is not worth consideration 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 Birubani the learned
J udg-12 made the following observations :
).
"I regret to learn from Ke.sera Singh, investigating
officer, that such a man is in service, i.e., 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.'
;>- .
s.c.:R.
.
-
-
SUPREME COURT REPORTS
-
487
And in this case the said Bia bani 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 Lor\].ships of the Privy Council in Add M oha.mmad v. Attorney-General of Palestine( 1), 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 c<:mld
not be said that the prosecution committed any
mistake in not producing Afzal Bia bani 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,
(r) A.LR 1945 P,C, 42,
1953
Hab~b
Mohammad
V,
1.'he State of
Hyderabad,
MahajanJ,
19-53
H!tbr.cb
.JJ ohanunad
v.
~I'he State of
Hyderabad.
Maha.fan J.
488
SUPREME COURT REPORTS
[1954]
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 P.,\T. 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 car:r;ying
out the orders of the appellant. In this situatiOn it
seems to us that Bia bani who was a top-ranking police
officer present at the scene was a materi~l 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 l3iabani do not show
that the Judge seriously applied his mind either to the
pro',visions 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
S.C.R.
SUPREME COURT REPORTS
489
serious consideration. The reliance placed on the decisfon of their Lordships of the Privy Council in Adel
Mohammad v. Attorney-Genera.l of Palestine(') 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 Orou:n 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 th~ prosecution so that the defence may crossexamine 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
praotice 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 was 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 opiniop1 the tr"μerul~
(r) '.A,I.R. 1945 P,C. 4~·
1958
Habeeb
Mohammad
v.
The State of
Hyderabad.
MahajanJ.
1953
Habeeb
Mohammad
v.
The State of
Hyderabad.
Mahajan J.
490
SUPREME COURT REPORTS
[1954)
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 v. The King('), 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 Roy v.
Emperor ('),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 les!l 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 .considerations of number and of reliability, or that a prosecution 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 prooeeds
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 i·esult the effect of
their testimony ·is for or against the case for the prosecution.''
In a long series of decisions the view taken in India
was, as was expressed by Jenkins O.J. in Ram Ranjan
Roy v. Emperor('), that the purpose ofa 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 fol! sense of
{1) A.I.R. 1936 P.C. 289.
""
f2) I.L~R~ 12 Ca . 'f2~ 1
>
~~.
'·-~;~,
-~. ')•
...,
S.C.R.
SUPREME COURT REPORTS
491
the responsibility attaching to his position and that he
should in a capital case place before the court the testimony ·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 v. The King('), that cam~ 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
Riabani 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.
2.
Moulvi Abdul Hamid Khan, Ex-Secretary,
Revenue Department, at present Minister for Sarf-eKhas Mubarak.
3. Nawab Deen-Yar-Jung Bahadur, Ex-InspectorGeneral of Police, Districts and City.
·
(t) A.I.R. 1936 P.C. 289.
65
1953
Haheeb
M ohaminad
v.
The State of
Hyderabad.
MahajanJ.
492
SUPREME COURT REPORTS
[1954]
1953
4. Moulvi Abdul Rahim, Ex-Railway Minister.
Habeeb
5. Rai Raj Mohan Lal, Ex-Law Minister.
Mohammad
v.
1-'he State of.
Hyderabad.
!11ahajan J.
•
6. Moulvi Zahir Ahmed, Ex-Secretary to Government, Home Department, at present residing at
London ..
The first witness was called to prove that the inhabitants 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 dt1pose as to what
happened to the D. 0. 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 Bia bani the Deputy Commissioner of
Police and would reveal other facts about Gurtur
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, foriner Assistant Superintendent of Police, Warangal district, may be sent for. The
learned Judge on this m:ide 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 fol)owing order;-
/'
S.C.R.
SUPREME COURT REPOR1;S
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 llO, sections 3 and 4 of the Evidence Act may
be referred).