# The State of Bombay v. Bombay Education Soriety and Others

- **Citation:** [1955] 1 S.C.R. 588
- **Court:** Supreme Court of India
- **Decided:** 1953-08-16
- **Case number:** Criminal Appeal No. 82 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bombay-v-bombay-education-soriety-and-others-363
- **Pages:** 11

## Headnote

1954
The State of
Bombay
v.
Bombay Education
Soriety and
Others.
Das].
1954
May6
•
588
SUPREME COURT REPORTS
[1955 J
equitable distribution of the total grant among AngloIndian Schools, although the impugned order was not
intended to affect the total grant available for distribution to Anglo-Indian Schools under the Constitution.
If,
in the light oi the covering circular. clause 7 is to
be
tre:1ted · as
operative, in
the
se11se
that a noncomp11ance with it will entail loss of the whole or part
of this grant as. a result of the change in the
existing
procedure for
the
equitable
distribution,
then it
undoubtedly adds to article 337 of the Constitution a
further conJition for the receipt by Anglo-Indian Schools
of the special grant secured to them by that article. On
the other hand if clause 7 is to be
treated merely as
ad.vice, which
may or may not be accepted or acted
upon, then clause 5 will amount to an absolute prohibition against the admission of pupils who are not AngloIndians or citizens of non-Asiatic descent into AngloIndia11 Schools and will compel the authorities of such
Schools
to commit a breach
of their
Constitutional
obligation under article 337 and thereby forfeit their
constitutional
right to
the
special grants. In either
view of the matter the impugned order cannot but be
regarded as unconstitutional. In our opinion the second
question raised in these appeals must also,
in view of
article 337, be answered agaimt the State.
The result of the foregoing discussion is that these
appeals must be dismissed and we order accordingly.
The State must pay the costs of the respondents.
Appeals dismissed.
AFT AB AHMAD KHAN
"·
THE STATE OF HYDERABAD.
[MmrnERJEA, VIVIAN BosE and GHULAM HASAN JJ.]
Criminal Procedure Code (Act V of 1898), ss. 233, 235-Scope
of s. 233-Law as to joinder of charges-except;on
thereto
enacted
jn s. 235-/oint trial of distinct oflc'nceJ.
Section 233 of the Code of Criminal Procedure (Act V of 1398)
embodies the general
law as
to
the
joinder of charges and lays
down a rule that
for every
distinct
offence
there
should
Ge a
)
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•
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•
,)
S.C.R.
SUPREME COURT REPORTS
589
separate charge and every such charge should be tried separately.
No doubt the object
of
section
233 is to save the accused from
being embarrassed in his defence if distinct
offences are lumped
together in one charge or in separate charges and are tried together
but the Legislature has engrafted certain exceptions
upon this rule
contained in sections 234, 235, 236 and 239.
Section 235 of the Code of Criminal
Procedure provides that
if in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the
same
person, he
may be charged with, and tried at one trial for e\'ery
such ofience.
The
prosecution story
showed
that
the offence of extortion
committed on a particular day was one of a series of acts connected
with the offence of murder and attempt to murder committed on
the previous day in such a way as to form one transaction.
The incidents related in the evidence left no doubt that from
Y
• the moment the accused (a Reserve Inspector of
Police)
started
from the Police State, he committed a series of acts involving killing,
injuring people, unlawfully
confining others
and extorting
money from one of them and therefore the series of acts attributed
to him constituted one
transaction
in the
course of which two
offences which were alleged to be distinct were committed.
Held, that
under
the
circumstances the case fell within the
H cld, that under
the circumstances the case fell within the
purview of section 235 of the Code of Criminal Procedure and
such joinder was permitted by the exception enacted in
that
Where the two Judges of the High Court on appeal are divided
in their opinion as to the guilt of the accused and the third Judge
to whom reference is made agrees with one of them who is upholding the conviction and sentence, it is desirable as a matter
of
convention thoug

## Text

1954
The State of
Bombay
v.
Bombay Education
Soriety and
Others.
Das].
1954
May6
•
588
SUPREME COURT REPORTS
[1955 J
equitable distribution of the total grant among AngloIndian Schools, although the impugned order was not
intended to affect the total grant available for distribution to Anglo-Indian Schools under the Constitution.
If,
in the light oi the covering circular. clause 7 is to
be
tre:1ted · as
operative, in
the
se11se
that a noncomp11ance with it will entail loss of the whole or part
of this grant as. a result of the change in the
existing
procedure for
the
equitable
distribution,
then it
undoubtedly adds to article 337 of the Constitution a
further conJition for the receipt by Anglo-Indian Schools
of the special grant secured to them by that article. On
the other hand if clause 7 is to be
treated merely as
ad.vice, which
may or may not be accepted or acted
upon, then clause 5 will amount to an absolute prohibition against the admission of pupils who are not AngloIndians or citizens of non-Asiatic descent into AngloIndia11 Schools and will compel the authorities of such
Schools
to commit a breach
of their
Constitutional
obligation under article 337 and thereby forfeit their
constitutional
right to
the
special grants. In either
view of the matter the impugned order cannot but be
regarded as unconstitutional. In our opinion the second
question raised in these appeals must also,
in view of
article 337, be answered agaimt the State.
The result of the foregoing discussion is that these
appeals must be dismissed and we order accordingly.
The State must pay the costs of the respondents.
Appeals dismissed.
AFT AB AHMAD KHAN
"·
THE STATE OF HYDERABAD.
[MmrnERJEA, VIVIAN BosE and GHULAM HASAN JJ.]
Criminal Procedure Code (Act V of 1898), ss. 233, 235-Scope
of s. 233-Law as to joinder of charges-except;on
thereto
enacted
jn s. 235-/oint trial of distinct oflc'nceJ.
Section 233 of the Code of Criminal Procedure (Act V of 1398)
embodies the general
law as
to
the
joinder of charges and lays
down a rule that
for every
distinct
offence
there
should
Ge a
)
-..
--
. '
-
•
(
-
J
•
,)
S.C.R.
SUPREME COURT REPORTS
589
separate charge and every such charge should be tried separately.
No doubt the object
of
section
233 is to save the accused from
being embarrassed in his defence if distinct
offences are lumped
together in one charge or in separate charges and are tried together
but the Legislature has engrafted certain exceptions
upon this rule
contained in sections 234, 235, 236 and 239.
Section 235 of the Code of Criminal
Procedure provides that
if in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the
same
person, he
may be charged with, and tried at one trial for e\'ery
such ofience.
The
prosecution story
showed
that
the offence of extortion
committed on a particular day was one of a series of acts connected
with the offence of murder and attempt to murder committed on
the previous day in such a way as to form one transaction.
The incidents related in the evidence left no doubt that from
Y
• the moment the accused (a Reserve Inspector of
Police)
started
from the Police State, he committed a series of acts involving killing,
injuring people, unlawfully
confining others
and extorting
money from one of them and therefore the series of acts attributed
to him constituted one
transaction
in the
course of which two
offences which were alleged to be distinct were committed.
Held, that
under
the
circumstances the case fell within the
H cld, that under
the circumstances the case fell within the
purview of section 235 of the Code of Criminal Procedure and
such joinder was permitted by the exception enacted in
that
Where the two Judges of the High Court on appeal are divided
in their opinion as to the guilt of the accused and the third Judge
to whom reference is made agrees with one of them who is upholding the conviction and sentence, it is desirable as a matter
of
convention though not as a matter of strict law that ordinarily
the extreme penalty should not be imposed.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 82 of 1953.
Appeal under article 134( 1) ( c) of the Constitution
of India from the Judgment and Order dated the 16th
August, 1953, of the High Court of Judicature at
Hyderabad in Criminal Appeal No. 1557 /6 of 1950,
arising out of the Judgment and Order dated the 16th
October, 1950, of the Court of Special Judge, Warangal,
in Case No. 28/2 of 1950.
A. A. Peerbhoy, f. B. Dadachanji and Rajinder
Narain for the appellant. -
Porus
A.
Mehta
and
P. G. Gokhale for
the
respondent.
1954
Aftab
Ahmad
Khan
v.
The State of
Hyderabad.
1954
Aftab Ahmad
Khao
v.
The State of
Hyderabad.
Ghulam Hasan].
•
590
SUPREME COURT REPORTS
r1955J
1954. May 6.
The JuJgment of
the Court was
delivered by
. ,._
GHULAM HASAN J.-The appellant
was tried and
convicteJ
by the Special Judge, Warangal, for
various
offences
under
the
Hyderabad
Penal
Code.
These
r
correspond to sections 302, 307,
347 and 384 of the
J
Indian Penal Code, the sentences awarded under the
.,,..
first two sections respectively being death and life
imprisonment, and separate sentences of two
years'
rigorous imprisonment under the latter two. The two
learned Judges of the High Court, who heard the appeal,
diffewl, Manohar Pershad J. upholding the convictions,
and the sentences and M. S. Ali Khan J. acquitting the
appellant. The third learned Judge, A. Srinivasachari J.,
on reference which was occasioned by the difference of >
'
opinion agreed with Manohar Pershad J. Leave to
appeal to this Court was granted by the two agreeing
Judges.
The occurrence which led to the prosecution of the
appellant took place on September 13, 1948, which was
the beginning of the first day of Police action in
Hyderabad. The appellant,
who was Reserve Inspector
of Police
stationed
at Mahbubabad
at the material
time, according to the prosecution story, visited two
villages Rajole and Korivi accompanied by a number
of
Razakars
an(! the
Police.
He arrested
J a naki
Ramiah (P.W. 5) and Nerella Ramulu
(P.W. 9) at
Rajole and took them to Korivi. Outside this village
in the waste land he spotted four men going to their
fields
and shot at them with his
gun. The deceased
Mura Muthiah and Somanaboyanna Muthandu (P.W. 2) ,
-.
were injuried in the knee, while the other two Kotta
Ramiah
(P.W. 3) and
Kancham Latchiah
(P.W. 4)
were uninjured. The latter two hid themselves behind
the babul trees. P.W. 2 also ran away and hid himself
in the bajra fields a few yards away but the deceased
remained where he fell. The appellant searched for the
three persons who had run away. He caught P.W. 3
and P.W. 4 and brought them to the spot where
the
deceased was lying but he could not trace P.W. 2. The
appellant seeing that Mora Muthiah was not dead, shot
him in the chest and killed him. The whole party
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SUPREME COURT REPORTS
591
consisting of P.W. 3, P.W. 4, P.W. 5 and P.W. 9 then
went to Korivi village.
The appellant stayed at the
house of one Maikaklari in the village and spent the night
there. Maikaldari and one Berda Agiah (P.W. 8) both
asked the appellant why he had arrested P.W. 3 and
P.\:V. 4, for they wue not Congress men. Upon this the
appellant released them. The prose.cution story proceeds
that the father
(P.W. 1)
of the deceased
saw the
appellant in the night of the 13th September and asked
him why he had killed his son. The appellant without
saying more advised
him to
cremate the dead body.
P.W. 1 borrowed wood from the people and cremated
the body. Four months later the appellant went and
stayed at the Government bungalow
Korivi,
sent for
P.W. 1 and offered him Rs. 200/- as
hush-money for
not disclosing the offence. The offer
was
refused.
P.W. 3 and P.W. 4 who had been released
told the
father of P.W. 2 next morning that his son was
lying
injured in
the
bajra field.
He went and had P.W. 2
removed to the hospital were his injuries were attended
to. On the same morning the appellant, who had
detained P.W. 5 and P.W. 9 in custody, asked them to
pay Rs. 200/-
when they would be released. P.W. 5
went with a constable to the house
of P.W. 6 and
P.W. 7 and borrowed Rs. 100/- f~om each of them. On
this being paid he was
released. P.W. 9 was unable to
pay any money and he was let off.
The defence was a denial of the offence. The appellant
denied having gone to the village in question or having
committed any of the offences attributed
to him.
He
stated that he was posted at Mahbubabad in order to
stop the subversive activities of the communists and
that
the
witnesses
being communists had falsely
implicated him. He produced witnesses in defence.
The First Information Report was lodged on April
14, 1949. This delay was due to the disturbed conditions
prevailing at the time and does not affect the truth of
the story. The appellant was prosecuted and the charge
sheet submitted against him on October 30, 1949. The
charge was framed by
a Munsiff Magistrate
who
committed the appellant
to the
Sessions.
As already
stated,
the
learned
Special
Judge
convicted and
1954
Aftab Ahmad
Khan
v.
The State :,of
Hyderabad.
Ghulam HaJan J.
1954
Aftab
Ahmad
Khan
v.
The State of
Hyderabad.
Ghu!am Hasan J.
592
SUPR~ME COURT REPORTS
[1955)
sentenced
the
appellant
and
his
conv1ct10ns
and
sentences were upheld by a majority of two Judges.
It has
been argued by Mr. Peerbhoy, learned counsel
on behalf of the appellant, tha.t his client had no fair trial
and has detailed a number of circumstances as supportr -
ing his
contention. Vv e 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 examina.
tion. 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 correspo;iJing section of the Hyderabad Penal Code is 166
which i~ 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 witne9s 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-crossexamination 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
,
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SUPREME COURT REPORTS
593
appellant by his 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 whether the accused had left the Headquarters on the crucial date. We do not 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 D<:puty
Superintendent of Police in his
letter
had stated that the entries for October were
made in the register for 1357 Fasli and that register wa~
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
W:lS deotroycd during the . Police action, he withdrew
the wimess. The appellant satisfied himself from the
inspection of this register that the desired entries were
not to he 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
cvi<lence 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
k:m1ed
counsel
1s
that
there
was a misjoinder
of
1954
Aftab
Ahmad
Mian
v.
The State ef
Hyderabad .
Chu/am
Jlman J-
1954
Aftab
A11mad
Illian
v.
The Stat1? o 1·
Hyderabad.
Ghulam
Hasan J.
••
594
SUPREME COURT REPORTS
[1955]
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 Subrama1tia Ayyar v. King-Emperor(' ) 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 wos
charged
with 41
acts extending over
a
period of two years which was plainly against the provisions of section 234
which permitted trial only for
three offences of the same kind if committed within a
period of twelve months. The decision of Lord Halsbury, Lord Chancellor, in this case was distinguished in
the case of Abdul Rahman v. The King-Emperor(') 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 Babula! Chaukani v. King-Emperer(3).
The question in that case arose as to the true effect of
section 239(d), which provides that persons who are
(1) 28 I. A. 25i·
(3) A.LR. 1938 P.C. 130.
(2) 54 I. A. 96.
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SUPREME COURT REPORTS
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 s~eal electricity
and theft of electricity both under the Electricity Act
and under the Penal Code. The Privy Council referred
to the fact that the parties had treated an infringement
of section 239( d) as an illegality vitiating the trial
under the rule stated in Subramania Ayyar v. KingEmperor(1) as contrasted with the result of irregularity
as
held
in
Abdul Rahman
v.
The KingEmperor( 2). The Privy
Council
merely
assumed
it to be so without thinking it necessary to discuss the
precise
scope
of
the
decision in Subramania's
case,
because· in their view the. question did not arise. Again
in
Pulukuri Kottaya
and Others v. Emperor(3)
the
Privy Council
treated a breach of the provisions of
section 162 of the Code as a mere irregularity curable
under section 537 and as no prejudice was caused in
the particular circumstances of that case, the trial was
held valid. Reference was made to Subramania Ayyar
v. King-Emperor( 1)
as one dealing with the mode
of trial in which no question of curing any irregularity
arises but if there is some error or irregularity in the
conduct of the trial, even though it may amount to a
breach of one or more of the provisions of the Code, it
was a mere irregularity and in support of this reference
was made to Abdul Rahman v. The King-Emperor~
2 ).
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
(t) 28 I.A. 2_=,7.
(3) A.LR. 1947 P.C. 67.
(21 54 I.A. 96.
1954
Aftab Ahmad
Khan
v.
Thfi State of
Hyderabad.
Ghulam
Hasa J.
1954
Aftab Ahmad
Khan
v.
Tht State of
Hyderabad.
Ghulam
Hasan].
596
SUPREME COURT REPORTS.
[1955].
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 arc lumped together in one
charge or iri 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
sa1ne
tr~nsaction, 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 offenc'' of murder and attempt to murder committed on the previous day in such a way as
to form the
same transaction. The prosecution case was that when
the
appellant
accompanied by
his
party came, he
caught hold of two persons (P.W. 5 and P.W. 9) at
Rajole
and proceeded to Korivi. He took them into
custody without any rhyme or reason. Then outside
the · village seeing the deceased, P.~r. 2, P.W. 3 and
P.W. 4 he
shot at them. The deceased fell
down
while the others ran away. He pursued
them and
brought two of them back to the spot where the
deceased was lying but was yet alive. He shot him in
the chest and kille<l him. Then he proceeded to the
village itself where he stayed for the night. He released
P.vV. 3 and P.W. 4 on the inter-cession of certain
persons hut kept P. W. 5 and P. W. 9 in wrongful
confinement an<l 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
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SUPREME COURT REPORTS
597
extorting money from one of them. We are satisfied
that
the senes 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 provis10n
of
the Code such
as
section 233
anses
and
111
the
circumstances it 1s
not necessary for us to
consider how far the violation of any express provis10ns
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
op1111on 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
111 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 bn
the point of extortion
are P.W. 5 and P.W. 9.
These
are ti1e two persons who were taken away from village
Rajole and were wrongfully confined, P.W. 5 being
released on payment of Rs. 200 and the other let off
without
payment.
These
two
witnesses
are
also
witnesses to the fact
of murder,
in addition
to
the
other
three
witnesses,
P.W. 2,
P.W. 3 and P.W. 4.
P.W. 5 was injured by the gun-shot but survived. The
other two were scared on hearing the gun-shot and ran
away taking protection under the babul tree. It is not
possible to contend
that
the
Sessions
Judge
having
believed the evidence of extortion from P.W. 5 must
have been persuaded into believing that the story of
murder deposed to by him must be correct, for there is
not only the evidence of P.W. 5, but three other independent witnesses.
Lastly it was contended that the judgment of one of
the agreemg Judges
Manohar Pershad r.
IS
purely
1954
Aftab Ahmad
Khan
v.
The State of
Hyderabad.
Ghulam
Hasan].
1954
Afatb Alimad
Khan
v.
The State of
Hy<frrabad.
Ghulam
Hasan].
598
SUPREME COURT REPORTS
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 fudge
Srinivasachari f. It is
true that the learned fudge 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-foundecl.
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 agreeiag fudges. This Court cannot interfere
with the finding arrived at on an appreciation of the
evidence. We are satisfiecl 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
fudge 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 ordinarilv the extreme
penalty should not be imposed. We accordingly, while
maintaining the conviction of the appellant, reduce his
sentence
to one of transportation for life. In other
respects the appeal stands dismissed. All the sentences
will run concurrently.
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