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PETITIONER: HABEEB  MOHAMMAD

       Vs.

RESPONDENT: THE STATE OF HYDERABAD.

DATE OF JUDGMENT: 05/10/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND MUKHERJEA, B.K. JAGANNADHADAS, B.

CITATION:  1954 AIR   51            1954 SCR  475  CITATOR INFO :  R          1957 SC 747  (49)  R          1957 SC 904  (9)  R          1959 SC 484  (12)  RF         1961 SC 715  (12)  R          1968 SC1402  (13)  R          1971 SC1586  (15,16)  R          1973 SC 618  (10)  R          1973 SC 863  (22)  RF         1976 SC2140  (11)  D          1977 SC 472  (20,21)

ACT:     Constitution   of   India,  art.   136-Criminal   appeal-  Interference  Guiding  principles-Failure to  call  material  eye-witness-Failure  to issue process to  important  defence  witnesses-Using  police diaries as  corroborative  evidence-  Refusal  to  produce material documents Validity  of  trial-  Interference  on appeal-Criminal Procedure Code,  1898,  ss.  162,  172,  257-Evidence  Act  (I of  1872),  ss.  53,  114,  illustration (g).

HEADNOTE:   Though the prosecution is not bound to call all available witnesses  irrespective  of  considerations  of  number   or reliability,  witnesses  essential to the unfolding  of  the narrative  on which the prosecution is based must be  called by  the  prosecution, whether in the result  the  effect  of their  testimony  is  for  or  against  the  case  for   the prosecution.  Where the case against the accused, a Subedar, was that he gave orders to the police to fire and the Deputy Commissioner  of Police who had accompanied the accused  and had  witnessed  the  occurrence  was  not  examined  by  the prosecution: Held, that the failure to examine him not  only led to an adverse inference against the prosecution case but also cast serious reflection on the fairness of the trial.    Adel   Mohammad   v.   Attorney-General   of   Palestine (A.I.R.1946 P.C. 42) distinguished.  Stephen Senivaratne  v. The  King (A.I.R. 1936 P.C. 289) relied on.  Ram Banjan  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

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inquiry  or trial.  The court would be acting improperly  if it  uses them in its judgment or seeks confirmation  of  its opinion  on  the question of appreciation of  evidence  from statements contained in those diaries.    Though  the  Supreme  Court would  not  interfere  under article 136 of the Constitution if there were mere  mistakes on  the  part of the court below of  a  technical  character which  had  not  occasioned any failure of  justice  or  the question was purely one of the court taking a different view of the evidence given in the case, it would interfere if  in substance there has not been Is fair and proper trial.    Where  material  eye  witnesses were  not  examined,  to disprove  the  prosecution  case as to  the  motive  of  the accused,  the court, without calling for the police  diaries during the trial, stated in the 63 476 judgment  that the statements made by the  witnesses  before the police were the same as those made by them in the court: Held,  that there was in substance no fair and proper  trial and the conviction should be set aside.

JUDGMENT:    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 1950.     B.J. M. Mackenna (A.  A. Peerbhoy and J. 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, 282and 124 of  the  Hyderabad Penal Code (corresponding to sections 302, 307, 436, 342 and 148, Indian Penal Code) and the respective sentences  passed under these sections against him.     The  case  for  the  prosecution  which  has  been  sub- stantially accepted by the Special Judge and by the majority of the High Court is that the appellant was in the year 1947 the Subedar of Warangal within the State of Hyderabad,  that on  the 9th December, 1947, he proceeded to the  village  of Gurtur  situate  within his jurisdiction at  about  10  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 Yelthuri Rama died  of  bullet wounds on the spot, Yelthuri Eradu and Pilli Malladu 477 received  bullet wounds and died subsequently,  five  others received   bullet  wounds  but  they  recovered,  that   the appellant gave match boxes and directed the policemen to  go into  the village and set fire to the houses as a result  of which  191  houses  were burnt down; that about  70  of  the villagers were tied up under the orders of the appellant and

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taken   to  Varadhanapeth  and  were  kept  under   wrongful confinement for some time and thereafter some were  released and  others  were taken to Warangal jail and  lodged  there; that  these  acts were done by the appellant  without  legal authority  or  legal justification and that he and  the  two absconding accused were therefore guilty of the offences  of murder, attempt to murder, 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 maintain and enforce law and order.     The  Special Judge on the materials before him  came  to the  conclusion that the accused was guilty of the  offences with- which he stood charged. On appeal to the High Court of Hyderabad,  a bench of two Judges (Sripatrao and Siadat  Ali Khan JJ.) delivered differing judgments, Sripatrao J. taking the  view that the appeal should be dismissed and the  other learned Judge being of the opinion that the appeal ought  to be allow he accused acquitted.  The case was then to a third Judge (Manohar Prasad J.) who by 478 a  judgment  dated  11th December,  1950,  agreed  with  the opinion  of  Sripatrao  J. and dismissed  the  appeal.   The present  appeal has been preferred against the  judgment  of the majority of the High Court by our leave.    This  appeal  was  in the first  instance  heard  by  the Constitution  Bencb(1)  and at that stage  the  hearing  was confined  to  certain constitutional points which  had  been raised by the appellant attacking the legality of the entire trial  which resulted in his conviction on the  ground  that the procedure for trial laid down in Regulation X of 1359-F. became  void after the 26th January, 1950, by reason of  its conflict  with  the  equal  protection  clause  embodied  in article  14 of the Constitution.  The constitutional  points raised by the appellant failed and the application preferred by  him under article 32 of the Constitution  was  rejected, and  the case was directed to be posted in the usual  course for being heard on its merits and it is now before us.    To  appreciate  the contentions raised on behalf  of  the appellant, it is necessary to give a short narrative of  the incident and the events following thereupon which led to the prosecution of the appellant.    In  the  first  information  report  lodged  against  the appellant  on the 29th January, 1949, it was said  that  the following persons accompanied the Subedar that morning:- 1.   Moulvi  Ghulam  Afzal  Biabani,  Deputy   Commissioner, District Police, Warangal. 2.   Abdul Lateef Khan, Circle Inspector of Police, 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.

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8.   70 military men, 10 policemen and 1 1 razakers.     It  appears that another person Abdul  Wahid,  Assistant D.S.P also went with this party.  He submi (1)  See [1953] S.C.R. 661, 479 a diary of the happenings at Gurtur on the same day.  It was briefly stated therein that the people ’rebelled, that  they had  to open fire and that 70 persons were arrested.   Abdul Lateef  Khan, the absconding accused and who was the  Circle Inspector of Police, also submitted a diary the same day  of the  happenings of the 9th, December.  According to  him,  a crowd of 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.   Turab Ali, Sub-Inspector of Police, and  Station- House  Officer, Vardhanapeth, on this  information  recorded the  first  information  report under  section  155  of  the Hyderabad Penal Code on 9th December, 1947, against Narsivan Reddy,  Congress leader of Mangp Banda, and  several  others under  sections 124, 248, 272 and 82 of the Hyderabad  Penal Code.   In  this report the facts stated  by  Abdul  Lateef, Circle Inspector, were reiterated.  Turab Ali also  prepared a panchnama on the same date, the panches being Khaja  Ahmed Wali Hyderi revenue inspector, residing at Vardhanapeth  and Md.   Abdul Wahid, special Girdavar of the same place.   The narrative of events given in the report of Abdul Lateef  was recited  in the panchnama.  Annexed to this panchnama was  a list  of  the  articles  and  weapons  recovered  from   the individuals  arrested on the 9th December, 1947.   The  list mentions  a  number of lathis, spears,  sickles,  churas,  a muzzle-loader  and  some  axes.  On the  11th  December  the appellant  sent  his  report of the incident  at  Gurtur  to Government  and in this demi-official  letter  substantially the  account  given by Abdul Lateef, Circle  Inspector,  was repeated and the justification for the firing was fully  set out.  Whether 480 Moulvi   Afzal  Biabani,  Deputy  Commissioner  of   Police, Warangal, also submitted a report giving his version of  the incident to Government or to the InspectorGeneral of  Police is  a debatable point.  The Government replied to the D.  O. letter  on 21st January, 1948, and called for a report  from the Subedar as to how much collective fine was to be imposed on the villages mentioned in the D. O. letter.  He was  also asked  to submit a resolution for the appointment  of  penal police soon so that sanction might be taken according to the procedure.   On  13  March, 1948, a  challan  was  presented against  70 persons arrested on the 9th December,  1947,  by the police for offences under sections 124, 248 etc. in  the Court  of  the  Special District Judge  of  Hyderabad.   The accused were remanded to the Central Jail, Warangal, and  it was  ordered that if there were any material objects in  the case the police should bring them at the next hearing, viz., 31st  March,  1948.   On that date  the  special  magistrate committed  to  the court of session 22 persons to  be  tried under sections 124, 293 and 248 of the Hyderabad Penal Code. The  rest  of  the persons arrested  were  discharged.   The Special Judge fixed the case for hearing on 18th May,  1948.

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On  that date or some subsequent date in May the police  put in   an  application  withdrawing  the  case.    The   court accordingly  acquitted all the accused and  the  proceedings initiated  on the first information report of Abdul  Lateef, Circle Inspector, thus terminated.  On what grounds the case against these accused persons was withdrawn by the police is a  matter  which has been left unexplained  on  the  record. Between  the  date of the withdrawal of this  case  and  the police action in Hyderabad taken by the Government of  India in September, 1948, whether any investigation was made as to the incidents at Gurtur by the Government is not known,  but it  appears that soon after the police action was  over,  in November,   1948,   a   statement  was   recorded   of   one Ranganathaswami who is a prosecution witness in the  present case  by  one  B.  J. Dora  Raj,  Deputy  Collector  on  5th November, 1948, in which Ranga natahswami said as follows:- 481     "On  9th  December,  1947, at about  10-30  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.  1  lakh. Policemen  fired the tailor Ramulu, two dheds, on the  order of Biabani, 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 Vardhanapeth, Head-Constable  of Police of Vardhanapeth, Girdavar, in the company of military police  and 40 persons came to our village.  Came from  Okal and stayed out of the city on the west side.  Nearly 100  or 150  persons  of the Village went to them.  They  fired  the guns by which Olsuri Eriah, Olsuri Ramiah 482 and  Kota  Konda Venkiah died.  Batula  Veriah,  Basta  Pali Maliah,  Olsuri  Veriah  Yeliah,  Ladaf  Madar  Dever  Konda Lingiah  and  Beara Konda Peda Balraju were injured  by  the bullets.  After this they entered into the village and after taking  round  in  the bazar they got into  the  houses  and looted.    They  looted  money  and  clothes.    Then   they surrounded  the  village and gathering  the  village  people -took them out of the village.  Made them lie down with face downwards  and tied their hands, and kept them in  the  same condition from 10 a.m. to 3 p.m. At 3 p.m. the Subedar  gave

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match boxes to his men and told them to burn the houses.  On this  they burnt the houses.  The Subedar made us stand  and said  ’see  the  Lanka Dahan of your  village.’  The  Deputy Commissioner also said the same thing.  After this they beat us and took us to Mailaram.  From there they carried us in a car  to  the police  station,  Vardhanapeth............  The whole  household utensils of the houses were looted, due  to which  the damage amounted to one lakh.  It was also  learnt that  they  outraged  the modesty of  4  women.   They  felt ashamed  to state their names before the public.  The  women are  ashamed to expose the names of the  persons  concerned. The names of these women are with the State Congress."      On  the basis of these two statements the Inspector  of 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 for  offences  committed under sections 248, 312, 331 and 368 of the Hyderabad  Penal Code  against the Subedar and it was directed that  the  two sheets of original statements of the complainants should  be sent to the court with the first information report and that he  would himself investigate the case.  On receipt of  this letter  the  Sub-Inspector  of  Police  recorded  the  first information report for the offences mentioned above on  29th January,  1949, in terms of the above letter.   Though  this first information report was recorded on 29th January, 1949, the investigation of the case against the appellant did  not start  till  the  8th  August, 49.  What  happened  in  this interval and why the 483 investigation  was delayed by a period of over seven  months is  again,  a  matter  on  which  no  explanation  has  been furnished  on the record and the  ’learned  Advocate-General who  appeared On - behalf of the State before us was  unable to explain the cause, of this delay in the investigation  of the crimes alleged to have been committed by the appellant.     On  28th  August, 1949, there was an order in  terms  of section  3 of the Special Tribunal Regulation V  of  1358F., which  was in force at that time directing the appellant  to be  tried  by Special Tribunal (A).  The  Military  Governor gave  sanction for the prosecution of the appellant on  20th September, 1949.  On 13th December, 1949, a new  Regulation, Regulation  X  of  1359-F.,  was  passed  by  the  Hyderabad Government  which ended the Special Tribunals created  under the previous regulation and upon such termination,  provided for  the  appointment, powers and procedure of  the  Special Judge.  On 5th January, 1950, the case of the appellant  was made  over  to  Dr.  Laxman  Rao,  Special  Judge,  who  was appointed  under the above regulation under an order of  the Civil Administrator, Warangal, to whom power under section 5 of  the  Regulation was delegated and on the  same  day  the Special  Judge  took  cognisance of the  offences  with  the result already indicated.     Mr.   McKenna,  who argued the appeal on behalf  of  the Subedar,   contended  that  his  client   was   considerably prejudiced by certain grave irregularities and  illegalities committed  in the course of the trial by the  Special  Judge and  that there had been a grievous disregard of the  proper forms  of  legal  process and  violation  of  principles  of criminal  jurisprudence in such a fashion as amounted  to  a denial  of  justice  and that injustice  of  a  serious  and substantial  character  has occurred.  The first  ground  of attack  in  this  respect  was that  a  number  of  material witnesses,   including   Moulvi   Afzal   Biabani,    Deputy Commissioner  of  Police, who accompanied  the  Subedar  and witnessed  the occurrence and who could give a narrative  of

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the  events of the 9th December, 1947, were not produced  by the prosecution 64 484 though  some  of them were alive and available,  that  these witnesses  were  essential for unfolding  the  narrative  on which the prosecution was based and should have been  called by  the  prosecution, no matter whether in  the  result  the effect of their testimony would have been for or against the case for the prosecution.  The facts relating to Biabani are these:    Admittedly  he  was a member of the  party  that  visited village  Gurtur on the fateful morning of the 9th  December, 1947.   There can be no doubt that he was a witness of  this occurrence and could give a narrative of the incidents  that happened   there   on  that  day.   In  the   statement   of Ranganathaswami  cited  above which  accompanied  the  first information  report  against the appellant it  was  asserted that  the firing took place under the orders of Biabani  and the houses were burnt by his order.  In the challan that was prepared  on the first information report lodged  under  the directions  contained in the letter of Md.   Ibrahim  Ghori, Inspector of C.I.D., District Police, against the  appellant and  the  two  absconding accused it was  alleged  that  the accused  merely on the pretext that the village  Gurtur  was the  headquarters of the communists raided the village  with the  aid  of  the armed police  force,  that  the  villagers appeared  before the accused, but accused I (the  appellant) in  view of the general policy of  the  Ittehad-ul-Muslimeen that  the Hindus might be killed and be forced to  run  away from  Hyderabad  and to achieve this object opened  fire  on them,  that  as a result of the firing  two  villagers  were killed on’ the spot, two of them died in the hospital,  five others badly injured, that when the villagers took to  their heels  the  appellant distributed match  boxes  amongst  the police  Constables and ordered them to go into  the  village habitation,  loot  and  burn  the  houses  and  molest   the villagers.  In this challan the whole burden for the  crimes committed  on 9th December was thrown on Habeeb Mohammad  in spite  of  the fact that in the documents  accompanying  the first  information  report this burden had  been  thrown  on Biabani, the Deputy Commissioner of Police,                             485    P.W.  21,  the investigating officer, was  questioned  on this  point  and he deposed that in the course  of  the  in- vestigation   the  offence  was  only  proved  against   the appellant and the two absconding accused and that it was not proved  that Ghulam Afzal Biabani, Deputy Inspector  Genaral of District Police, or Nasim Ahmad, Sub-Inspector of Police, or  Jamedar  of Police, Vardhanapeth, Abdul  Wahib,  Revenue Inspector,  or Abdul Alim, pleader, or the  military  police had  committed any crimes or aided or abetted and  for  this reason  their names were not mentioned therein.  The  prose- cution  in  these circumstances in the list  of  prosecution witnesses  mentioned the name of Biabani as 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 place.     On 24th March,. 1950, the appellant made an  application to  the  Special Judge alleging, inter alia, that  though  a

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number  of police officers and other officials were  present at  the scene of occurrence including Ghulam Afzal  Biabani, Kankiah,  Abdul  Wahid, Girdawar who was  then  confined  in Warangal  jail,  Naseem  Ahmad,  Sub-Inspector  of   Police, Vardhanapeth, Khaja Moinuddin, Police Jamedar, Abdul Ghaffar Khan, Reserve District Police Inspector, Turab Ali, Sub-Ins- pector,  Vardbanapeth,  and Shaik Chand,  Police  Inspector, they were neither arrested nor any action taken against  any of  them, that the investigating officer Ibrahim  Ghori  and Sub-Inspector of Nallikudur police station were not produced in court, that though Kankiah Jamedar was presented to  give evidence,  Ghulam Afzal Biabani, ex-Deputy  District  Police Commissioner,  was  not produced.  It was  alleged  in  this application that when this objection was raised on behalf of the accused, the Government Pleader said that 486 they  could not produce him, and if the honourable court  so desired, it may summon him.  It was further alleged  therein that  the conduct of the. prosecution showed that they  were endeavouring  to incriminate the accused who was not  guilty and  on  the  other hand were trying to  shield  the  police constables and officers, and that the Government Pleader had refused to produce the best evidence that could be  produced in, the case.  It was stated that in those circumstances  it would  be in conformity with justice that the  court  should inquire  into  the facts and summon  the  persons  mentioned above  under section 507 of the Code of  Criminal  Procedure and  record their statements in’ order to find out the  real facts.   It was said further that Ghulam Afzal Biabani,  ex- Deputy District Police Commissioner, who was then in service in the Police Training School, had sent a report with regard to  the’ incident to the Inspector-General of Police and  to the  Secretary  to  Government, Home  Department.   On  this application the learned Judge recorded the following order:-      "The  application  of  the accused is  not  worth  con- sideration  because neither the complainant nor the  accused can  persuade  the  court in this way.  This  right  can  be exercised   only  to  settle  a  defect  in  the   evidence. Otherwise  it  is  not to be exercised at  all.   The  right should  be exercised only to rectify the defects of  any  of the parties.  The accused has full right to adduce  -defence witnesses.   Even after producing the defence  evidence,  if anything  is omitted, the ’court by itself, will settle  it. This application is filed beforehand."      Order was, however, made to summon the report, if  any, made  by Ghulam Afzal Biabani.  In his  judgment  convicting the appellant, regarding Biabani the learned Judge made  the following observations:    "  I  regret to learn from  Kesera  Singh,  investigating 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. 487 And  in  this case the said Biabani is not  challenged  only because  he  is  a  police  officer.   This  should  not  be construed  in  this sense that as the  police  left  Biabani scot-free  because  they  favoured him, so  also  the  court should  leave  Habeeb Mohamed.  A strange logic that  "  you left one, therefore I leave the other’ will continue."     It is difficult to support such observations made behind the back of a person.  Such observations could only be  made after  giving  an  opportunity to  Biabani  to  explain  his conduct.   Before the High Court Mr. Walford who argued  the case  stressed  the  point that the  police  ought  to  have

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produced Ghulam Afzal Biabani to prove the fact that it  was the appellant who ordered firing and in the alternative, the court  should  have summoned him as a court  witness.   This argument  was  disposed of by reference to the  decision  of their  Lordships  of the Privy Council in Adel  Mohammad  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 could not  be said  that  the  prosecution committed any  mistake  in  not producing  Afzal Biabani or that it had been  influenced  by some  oblique motive.  It was further held that no  occasion arose  for interfering with the discretion exercised by  the Special   Judge  under  section  507,   Hyderabad   Criminal Procedure Code, and that the evidence of this witness  could not  be regarded as essential for the just decision  of  the case.   The dissenting Judge, Siadat Ali Khan J.,  took  the view that Biabani was the second top-ranking officer at  the occurrence and as his report was not forthcoming, (1)  A.I.R. 1945 P.C. 42. 488 there was a lacuna in the record and that it was the duty of the court to call him as a witness.  In the judgment of  the third  Judge,  Manohar  Prasad J., it  is  stated  that  Mr. Murtuza  Khan who appeared for the accused did in course  of his  arguments  concede  that from the  documents  filed  it appeared that the order of fire was given by the  appellant. Mr.  Murtuza  Khan who is a retired Judge of  the  Hyderabad High Court has filed an affidavit contesting the correctness of this observation.  On the question therefore whether  the order  to  fire  was  given by the  appellant  we  have  the solitary testimony of P.W. 10, Kankiah, the police  Jamedar, contrary  to  the  statements  contained  in  the   document accompanying  the first information report; and even in  his deposition   it  is  said  that  the  police  officer   took instructions from Biabani before carrying out the orders  of the  appellant.   In  this situation it  seems  to  us  that Biabani who was a top ranking police officer present at  the scene  was  a material witness in the case and  it  was  the bounden duty of the prosecution to examine him, particularly when  no allegation was made that if produced, he would  not speak the truth; and, in any case, the court would have been well advised to exercise its discretionary powers to examine that  witness.  The witness was at the time of the trial  in charge  of  the  Police Training School  and  was  certainly available.   In  our  opinion,  not  only  does  an  adverse inference  arise against the prosecution case from his  non- production  as  a  witness in view of  illustration  (g)  to section 114 of the Indian Evidence Act, but the circumstance of  his  being  withheld  from the  court  casts  a  serious reflection  on  the fairness of the trial.  It seems  to  us that  the  appellant  was  considerably  prejudiced  in  his defence  by  reason  of this omission on  the  part  of  the prosecution and on the part of the court.  The reasons given by  the learned Judge for refusing to summon Biabani do  not show  that the, Judge seriously applied his mind  either  to the Provisions of the section or to the effects of  omitting to  examine such an important ’Witness.  The terms in  which the  order -of the Special Judge is couched exhibit lack  of

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judicial balance in a matter which required 489 serious consideration.  The reliance placed on the  decision of their Lordships of the Privy Council in Adel Mohammad  v. Attorney-General  of Palestine(1) is again misplaced.   That decision  has no bearing on the question that arises in  the present case.  The case came from Palestine and the decision was  given  under the provisions of the  Palestine  Criminal Code Ordinance, 1936.  The contention there raised was  that the  accused had a right to have the witnesses  whose  names were  upon  the  information, but were not  called  to  give evidence  for  the prosecution, tendered by  the  Crown  for cross-examination by the defence.  The learned Chief Justice of  Palestine  ruled  that there was no  obligation  on  the prosecution to call them.  The court of criminal appeal held that  the  strict  position  in law  was  that  it  was  not necessary  legally for the prosecution to put forward  these witnesses.  They, however, pointed out that in their opinion the  better  practice was that the witnesses  should  be  so tendered  at  the close of the case for the  prosecution  so that  the  defence may cross-examine them if they  so  wish. Their Lordships observed that there was no obligation on the part  of  the prosecution to tender those  witnesses.   They further  observed that it was doubtful whether the rule-  of practice  as  expressed  by the  court  of  criminal  appeal sufficiently recognised that the prosecutor had a discretion as  to what witnesses should be called for the  prosecution, and the court would not interfere with the exercise of  that discretion,  unless,  perhaps, it could be  shown  that  the prosecutor  was influenced by some oblique motive.  No  such suggestion  was made in that case.  The point considered  by their  Lordships  of the Privy Council  there  *as  somewhat different from the point raised in the present case, but  it is  difficult  to  hold on this record  that  there  was  no oblique  motive of the prosecution in the present  case  for not producing Biabani as a witness.  The object clearly  was to  shield  him, who possibly might be a co-accused  in  the case,  and also to shield the other police officers and  men who formed the raiding party.  In our opinion, the true rule (1)  A.I.R. 1945 P.C. 42. 490 applicable in this country on the question whether it is the duty  of the prosecution to produce material  witnesses  has been  laid down by the Privy Council in the case of  Stephen Senivaratne v. The King (1), and it is in these terms :-       "It  is said that the state of things above  described arose because of a supposed obligation on the prosecution to call  every available witness on the principle laid down  in such a case as Ram Ranjan Boy v. Emperor (2), to the  effect that  all  available eye-witnesses should be called  by  the prosecution  even though, as in the case cited, their  names were  on the list of defence witnesses.  Their Lordships  do not  desire to lay down any rules to fetter discretion on  a matter such as this which is so dependent on the  particular circumstances  of each case.  Still less do they  desire  to discourage  the utmost candour and fairness on the  part  of those  conducting  prosecutions; but at the same  time  they cannot,  speaking  generally,  approve of  an  idea  that  a prosecution  must  call  witnesses  irrespective  of  consi- derations  of  number  and of reliability, or  that  a  pro- secution   ought   to  discharge  the  functions   both   of prosecution  and defence.  If it does so confusion  is  very apt to result, and never is it more likely to result than if the  prosecution  calls witnesses and then  proceeds  almost automatically   to  discredit  them  by   cross-examination.

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Witnesses  essential  to the unfolding of the  narrative  on which  the prosecution is based, must, of course, be  called by  the  prosecution, whether in the, result the  effect  of their testimony.is for or against the case for the  prosecu- tion."    In  a  long series of decisions the view taken  in  India was,  as was expressed by Jenkins C.J. in Ram Banjan Boy  v. Emperor(2),  that the purpose of a criminal trial is not  to support at all costs a theory but to investigate the offence and  to determine the guilt or innocence of the accused  and the  duty  of a public prosecutor is to  represent  not  the police  but  the Crown, and this duty should  be  discharged fairly and fearlessly with a full sense of (1)  A.I.R. 1936 P.C. 289. (2)  I.L.R. 42 Ca. 422. 491 the  responsibility  attaching to his position and  that  he should  in a capital case place before the court the  testi- mony  of all the available eye-witnesses, though brought  to the  court  by the defence and though  they  give  different accounts,  and  that the rule is not a  technical  one,  but founded  on common sense and humanity.  This view so  widely expressed  was not fully accepted by their Lordships of  the Privy  Council in Stephen Senaviratne v. The  King(1),  that came  from  Ceylon,  but at the same  time  their  Lordships affirmed  the  proposition  that  it was  the  duty  of  the prosecution to examine all material witnesses who could give an  account  of  the narrative of the events  on  which  the prosecution  is  essentially  based and  that  the  question depended on the circumstances of each case.  In our opinion, the appellant was considerably prejudiced by the omission on the part of the prosecution to examine Biabani and the other officers   in  the  circumstances  of  this  case  and   his conviction  merely  based  on the testimony  of  the  police jamedar,  in  the  absence of Biabani  and  other  witnesses admittedly present on the scene, cannot be said to have been arrived  at  after  a  fair  trial,  particularly  when   no satisfactory  explanation has been given or  even  attempted for this omission.     Another  grave irregularity vitiating the trial  and  on which  Mr. McKenna laid great emphasis concerns the  refusal of  the Special Judge to summon six defence  witnesses  whom the  appellant wished to call.  The facts relating  to  this matter  are  these: On the 24th March, 1950,  the  appellant filed  a list of defence witnesses containing the  following names:-    1.     Moulvi  Syed  Hussain  Sahib  Zaidi,   Ex-District Superintendent  of  Police, Warangal, who was  then  special officer, Bahawalpur State, Pakistan.    2.     Moulvi  Abdul  Hamid Khan,  Ex-Secretary,  Revenue Department, at present Minister for Sarf-e-Khas   Mubarak.    3.  Nawab Deen-Yar-Jung Bahadur, Ex-Inspector. General of Police, Districts and City. (1)  A.I.R. 1936 P.C. 289. 65 492 4.   Moulvi Abdul Rahim, Ex-Railway Minister. 5.   Rai Raj Mohan Lal, Ex-Law Minister. 6.   Moulvi  Zahir Ahmed, Ex-Secretary to  Government,  Home Department, at present residing at London.     The first witness was called to prove that the  inhabit- ants  of Gurtur committed destructive activities  and  threw stones  on  the police and that the police  fired  in  self- defence  by the order of the Deputy Police  Commissioner  of the  District.  It was said that he would also  reveal  many

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other facts.  Regarding the second witness, it was said that he would depose as to what happened to the D. O. letter sent by  the  accused  and  he would  also  reveal  other  facts. Regarding  the  third  witness, it was said  that  he  would confirm  the  report  of Ghulam  Afzal  Biabani  the  Deputy Commissioner  of Police and would reveal other  facts  about Gutur  incidents.  About the fourth and fifth witnesses,  it was  said  that  they  would  depose  about  the   accused’s efficiency  and his behaviour towards ryots and  they  would also   reveal  other  facts.   On  14th  April,   1950,   an application  was  made by the pleader for the  accused  that instead of sending for Syed Hussain Zaidi, Superintendent of Police,  residing  at Pakistan, Abdur  Rasheed  Khan  Sahib, former   Assistant   Superintendent  of   Police,   Warangal district,  may be sent for.  The learned Judge on this  made the following order:     "This  request  is  improper.  The  application  of  the accused  dated  24th  March, 1950, about  the  list  of  the defence witnesses may be referred.  In it the first name  is of Zaidi, the Superintendent of Police.  It is written in it by  the accused himself that Mr. Zaidi will say whatever  he has heard from the other policemen.  Now I cannot understand when it is written so in the list, how can Abdur Rasheed  be called for instead of Zaidi, and what evidence he will give. So the application- to call for Abdur Rasheed Khan Sahib  is disallowed."    Regarding  witness No. 2, Abdul Hameed Khan, the  learned Judge made the following order 493    "It is stated that he will speak about the efficiency  of the  accused  and  also  about  his  behaviour  towards  his subjects.   Efficiency and behaviour is neither a  point  at issue  in  this case, nor a relevant  fact,  ’(section  216, Criminal  Procedure Code, and section 110, sections 3 and  4 of  the Evidence Act may be referred).  It is  also  written below  it  that he will state what action was taken  on  the D.O.  letter of the accused.  No such paper is  produced  to show  as to what has happened to the proceedings, for  which Abdul  Hameed Khan can be summoned to prove.   Besides  this the  statement of the accused is in regard to something  and witness  Abdul Hameed Khan is being summoned for some  other thing."    Regarding the third witness the Judge said as follows:-       "Nawab Deen Yar Jung Bahadur, former Inspector-General of  Police,  is called for to certify the report  of  Ghulam Afzal  Biabani,  Deputy Director of Police.  The  report  of Ghulam  Afzal Biabani was called for from the office of  the Inspector-General  of Police, Home Secretary, and  from  the office  of the Civil Administrator, Warangal.  But from  all these  offices, we have received replies stating that  there is no report of Ghulam Afzal Biabani.  In the light of these replies  it is unnecessary to summon Deen Yar Jung  Bahadur. When there is no report, what can    Regarding  witnesses  4  and 5,  the  Judge  observed  as follows:--     "These  witnesses  are called for to  -state  about  the efficiency and behaviour of the accused.  It is not a  point at issue nor a relevant fact."     Regarding witness 6, the Judge thought that there was no procedure  to summon a witness residing in London.   Finally it  was observed that "by seeing the list of  witnesses  and the  defence statement of the accused which are many  pages, it  appears  that  these applications  are,  given  only  to prolong the ’case unjustifiably and to disturb the  justice. These  are not worthy be allowed.  So the  said  application

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dated 494 24th  March,  1950, is disallowed."  Section  257,  Criminal Procedure  Code,  which corresponds to section  216  of  the Hyderabad Criminal Procedure Code is in these terms :-    " If the accused, after he has entered upon’ his defence, applies   to  the  Magistrate  to  issue  any  process   for compelling the attendance of any witness for the purpose  of examination  or cross-examination, or the production of  any document  or  other thing, the Magistrate shall  issue  such process unless he considers that such application should  be refused  on  the ground that it is made for the  purpose  of vexation  or  delay or for defeating the  ends  of  justice. Such ground shall be recorded by him in writing."    We  have  not  been able to appreciate the  view  of  the learned  Judge  that  the  application  to  summon   defence witnesses who were available in Hyderabad was of a vexatious character and its object was to delay or defeat the ends  of justice.   There  was controversy in the  case  between  the prosecution and the defence about the motive of the  accused which was stated by the prosecution to be that in  pursuance of  the  policy of the Ittehad-ul-Muslimeen,  and  with  the common object of destroying the Hindus and turning them  out of  Hyderabad the appellant went to this village to  achieve that  object with the help of the police.  The  accused  was entitled  to disprove the allegation and prove his  -Version that  the  village  was in a state of  rebellion,  that  the people  who came out in a crowd did not come  with  peaceful motives but they were aggressive and were armed with weapons that  he was not inimical to the Hindus, that his  behaviour towards them had always been good and his state of -mind was not inimical to them and the idea of exterminating them  was far  from his mind.  Under the provisions of section  53  of the Evidence Act evidence as to the character of an  accused is  always relevant in a criminal case.  So is the  evidence as  to  the  state of his mind.  Evidence  as  to  disturbed condition  prevailing  at  Gurtur  and  of  the  destructive activities  of  its inhabitants was also  a  relevant  fact. Whatever may be said about the other 495 witnesses,  three of the witnesses named in that  list  were certainly material witnesses for the purpose of the defence. In criminal proceedings a man’s character is often a  matter of  importance in explaining his conduct and in judging  his innocence  or criminality.  Many acts of an  accused  person would be suspicious or free from all suspicion when we  come to  know the character of the person by whom they are  done. Even on the question of punishment an accused is allowed  to prove  general good character.  When the allegation  against the  appellant  was that he was acting in pursuance  of  the policy  of the Ittehad-ul-Muslimeen that his state  of  mind was  to  exterminate  the Hindus, he was  entitled  to  lead evidence to show that he did not possess that state of  mind ;  but  that on the other hand, his  behaviour  towards  the Hindus throughout his official career had been very good and he could not possibly think of exterminating them.  But even if  the  Judge was right in thinking that  the  evidence  of character  in this particular case would not  have  affected materially  the result, the evidence of other witnesses  who would  have  deposed as to whether Biabani had  submitted  a report, and what version he had given, or of those who  were able to depose as to the condition of things at Gurtur where the incident took place, or who were in a position to depose from  reports already submitted to the Home  Department  and the  Inspector-General of Police about the behaviour of  the

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villagers of Gurtur, would have very materially assisted the defence  if those witnesses were able to speak in favour  of the appellant’s contention.  In our opinion the trial before the  Special Judge was vitiated by his failure in  summoning the  defence witnesses who were available at  Hyderabad  and who  might  have  materially helped  to  prove  the  defence version.  The first witness or his substitute may well  have been  able to depose as to what happened to, the  arms  that were alleged to have been captured from the villagers on the 9th  December,  1947, and regarding which  a  panchnama  was prepared  and  as ’to whether they existed in fact  or  not. That would have thrown a flood of light on the character  of the 496 mob that was fired upon and it may well have transpired from that evidence that the firing was ordered at the instance of Biabani and not at the instance of the accused as alleged in the first instance by Ranganathaswamy.  In the result we are constrained  to  hold that the accused has been  denied  the fullest opportunity to defend himself.    Another  point that was stressed by the  learned  counsel for the appellant is that the police investigation into  the offences  with which the appellant has been  charged,  after the  first  information report has been lodged  in  January, 1949,  has  been not only of a perfunctory nature  but  that there has been an unexplained delay of more than six  months in  making  it  and this  has  considerably  prejudiced  the defence.   It  was suggested that during  this  period  most likely  the police was cooking evidence against the  accused without making any entries in the case diaries of statements made by the villagers.  On this question it is necessary  to set   out  a  part  of  the  statement  of  P.W.   21,   the investigating  officer,  on  which reliance  was  placed  to support  this contention.  In cross-examination the  witness said as follows:-    "I  went for investigation in the month of Mehir  1358-F. (August,  1949) Union officers did not investigate prior  to my  investigation;  not even any’  Collector  undertook  any investigation  Mohd.   Ibrahim  Ghori,  Inspector,   C.I.D., informed  Sub-Inspector of Nallikadur through a D. O.  dated the   29th  Isfandar,  1358-F.,  to  issue  an   information report.  ....... .I have no knowledge which officer  ordered Mohd.   Ibrahim Ghori to investigate and who signed  on  it. Superintendent  of  C.I.D.  Police  whose  name  I  do  not, remember   now  gave  order  to  Mohd.   Ibrahim  Ghori   to investigate  the facts.  Now the case diary is not  with  me The  names  of  Mohd.   Ibrahim  and  Achal  Singh  are  not mentioned  in  the witnesses lists of A &  B  Charges  under sections 312 and 331 are mentioned in the report, but during my   investigation  these  offences  were  not  proved   The Superintendent of C.I.D. Police gave me order to 497 investigate  but  I do not remember the date of  that  order now......I   prepared  panchnamas  on  8th  Mehar,   1358-F. probably  I  reached  Gurtur one or  two  days  earlier.   I finished  circumstantial investigation with in  eight  days. Afterwards  proceedings for permission were  continued.   At last  on  28th August, 1949, the  Civil  Administrator  gave order  to  file a challan..............In the course  of  my investigation,  it was proved that accused Habeeb  Mohammad, Abdul  Latif Khan and Abdul Wahid had committed crimes.   It was  not proved during the course of my  investigation  that Ghulam  Afzal  Biabani,  Deputy I. G.  of  District  Police, Assistant  of  Force, Nasim Ahmad  Saheb,  Sub-Inspector  of Police, Vardhanapeth, Jamedar of Police, Vardhanapeth, Abdul

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Wahid,   Revenue  Inspector,  Abdul  Alim  Saheb,   pleader, Hanamkonda,  70  military men and police  and  Razakars  bad committed  crimes  or aided and  abetted.   Therefore  their names were not mentioned in the challan.  The crimes against them are not proved means that they are not identified ; the witnesses  are  not acquainted with them; so  they  are  not prosecuted.   Though in the information report  70  military men were mentioned I found in the course of my investigation 70  policemen  only.  I could not make out the  identity  of these  policemen  but I came to know that they  belonged  to Warangal  district police force.  I do not know how many  of them  were Hindus and how many were Muslims.  But the  names of Kankiah, police jamedar (head-constable) and Abdul  Latif Khan,  Circle  Inspector,  were evident  from  the  diary  ; therefore  it is produced as evidence.  On enquiry,  Kankiah said  to me that he could not identify them now and that  he could  not recollect the number of policemen who went  along with  him  (Kankiah) to Vardhanapeth.  I could not  see  the register  at Superintendent’s office to ascertain  who  went there  because  it was destroyed during the  police  action. When  I  asked  the line inspector  in  this  connection  he replied that he could not even say whether the register  was destroyed and that he could not remember the names now.   As I  could  not gather any information from them,  I  did  not refer their names in the case diary . I had not 498 even  mentioned  about  line inspector  in  the  case  diary because  I  considered it unnecessary.   From  other  source also,  I  could not make out the identity of these  70  men. Ghulam Afzal Biabani, Deputy Inspector General of Police, is alive  and  in service and I have heard that he is  now  the Principal of the Police Training School.  I cannot tell  who was  Assistant of Force.  I do not know the  whereabouts  of Nasim  Ahmad  as  well as about his post.  I  did  not  make enquiries  about  Police  Jamedar of  Vardhanapeth  who  was mentioned  in  the  information  report,  in  regard  to-his identity and whether he is alive or dead because I could not find out his name from my witnesses.  Further I do not  know who  was Shaik Chand.  But I came to know from Kankiah  that Shaik  Chand was present on the scene of occurrence.  Now  I do  not know about the whereabouts of Shaik Chand  or  about his job.  None of the other witnesses recognised Shaik Chand and that I had not paraded him before the witnesses  because I  do  not  know his whereabouts.   Though  Jamedar  Kankiah deposed that Abdul Ghaffar, Police Inspector, was present on the  scene  of  occurrence  the  other  witnesses  were  not acquainted   with   him.   Whether  Abdul   Majid,   Revenue Inspector,  was on the place of occurrence or not,  I  could not make out and further whether he is alive or dead, too, I could not make out.  Except Ghulam Afzal Biabani, I did  not examine  any  of the other men, i.e.,  Assistant  of  Force, Nasim  Ahmed, Police Jamedar of Vardbanapeth,  Abdul  Wahid, Revenue Inspector and others.  I remember that after circum- stantial  investigation at Gurtur, I went to  Hyderabad  and enquired the facts to Ghulam Afzal Biabani orally; I did not take any statement from him.  Whatever I enquired from him I entered in the case diary.  I do not know what Ghulam  Afzal Biabani  reported to the high authority and whether  he  had reported it or not reported at all.  I did not question  him about  it......  I do not remember the name  of  the  police patel  of Gurtur village.  I did not take his statement  and he  did  not give any report in regard to  this  occurrence. Guns were not recovered because the 499 incident  occurred  one  year  ago  and  persons  were   not

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identified."    It is apparent from this statement that the investigation conducted  by P.W. 21 was of a very  perfunctory  character. Apart from P.W. 10 Kankiah, none of the policemen or other I officers or panches present at the scene of occurrence  were examined  and even their whereabouts were not  investigated. This  is  all  due  to  the  circumstance  that  though  the depositions  of  the villagers were  recorded  in  November, 1948,  against the conduct of the appellant and  though  the first information report against him was lodged in  January, 1949, for some reason of which no plausible or  satisfactory explanation   has  been  suggested,  the  matter   was   not investigated  and  relevant evidence as  to  this  incident, whether for or against the appellant, was not recorded for a period  of  over  six months.  It  is  not  unreasonable  to presume  that  during this period of seven or  eight  months that  evidence  became either unavailable or  the  villagers after   this  delay  in  investigation  were  not  able   to satisfactorily identify any of the persons who were  present on the occasion.  It seems to us that there is force in  the contention  that a good deal of material evidence  was  lost and  considerable material that might have been  helpful  to the   case  of  the  defence  or  which  would  have   fully established  the  part  played by the accused,  was  in  the meantime lost.  In this situation the learned counsel in the courts  below as well as in this court laid emphasis on  the point that the case diaries were not brought into court till ,after the close of the case and they were withheld to avoid any  controversy of this nature and this omission  had  also resulted  in a trial which was perfunctory and,  prejudicial to the accused.  During the examination of the investigating officer the question was put to him whether he had the  case diaries.  The cross-examining counsel wanted to elicit  from him certain materials about the conduct of the investigation after  he had refreshed his memory from those  diaries,  but P.W. 21 deposed that he had not the diaries with him and the matter was closed  at 66 500 that stage.  On 12th April, 1950, an application was made to the court asking for copies of statements of P.Ws.  recorded by the police.  This application was obviously a belated one as  the  accused had no right to get the  copies  after  the statements  of  those  witnesses had been  recorded  by  the Judge.   The diaries were brought into court on 18th  April, 1950.   The  learned Special Judge in his judgment  on  this point said as follows:-    "I  have  sent for the case diary  relating  to  Superin- tendent  of  C.I.D.  in confidential on the  prayer  of  the accused.   I have seen it intently.  Statements therein  are almost the same as are deposed in the court.  The statements of witnesses would not become unreliable even in view of the entries made in the case diary."    Section  162,  Criminal Procedure  Code,  which  concerns police  diaries and the use that can be made of them, is  in these terms:-    " No statement made by any person to a police officer  in the course of an investigation under this Chapter shall,  if reduced  to writing, be signed by the person making it;  nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement  or record,  be  used  for  any  purpose  (save  as  hereinafter provided) at any inquiry or trial in respect of any  offence under investigation at the time when such statement was made :

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   Provided  that,  when  any witness  is  called  for  the prosecution  in such inquiry or trial ’Whose  statement  has been  reduced into writing as aforesaid, the Court shall  on the request of the accused refer to such writing and  direct that the accused be furnished with a copy thereof, in  order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872.  When any part of such statement  is so used, any part thereof may also be used  in the re-examination of such witness, but for the purpose only of   explaining  any  matter  referred  to  in  his   cross- examination." 501 Section  172 provides that any criminal court may  send  for the police diaries of a case under inquiry or trial in  such court and may use such diaries, not as evidence in the  case but to aid if in such inquiry or trial.  It seems to us that the-learned  Judge was in error in making use of the  police diaries  at all in his judgment and in seeking  confirmation of  his opinion on the question of appreciation of  evidence from statements contained in those diaries.  The only proper use  he could make of these diaries was the one  allowed  by section 172, Criminal Procedure Code, i.e., during the trial he  could  get assistance from them by suggesting  means  of further  elucidating  points which needed  clearing  up  and which  might  be material for the purpose of  doing  justice between  the  State  and the accused.  This he  did  not  do because the diaries were not before him. -It was pointed out in Rex v. Mannu(1) by a full court that a special diary  may be  used  by the court to assist in an inquiry or  trial  by suggesting  means of further elucidating points  which  need clearing up and which are material for the purpose of  doing justice  between  the  Crown  and the  accused  but  not  as containing  entries which can by themselves be taken  to  be evidence  of any date, fact or statement therein  contained. The police officer who made the diary may be furnished  with it  but not any other witness.  The Judge made improper  use of  the  diary  by referring to it in his  judgment  and  by saying  that  he intently perused it and the  statements  of witnesses  taken in court were not inconsistent  with  those that  were made by the witnesses before the police  officer. It  is  difficult to say to what extent the perusal  of  the case diaries at that stage influenced the mind of the  judge in  the  decision  of the case.  It may well  be  that  that perusal  strengthened the view of the judge on the  evidence against  the  appellant and operated to his  prejudice.   If there  was  any  case in which it was  necessary  to  derive assistance from the case diary during the trial it was  this case  and  the  investigating officer who  appeared  in  the witness box instead of giving unsatisfactory answers to 2I.L.R. 19 All,390. 502  the  questions  put to him might well have  given  accurate answers  by  refreshing his memory from  those  diaries  and cleared up the lacunae that appear in the prosecution case. It  was next contended that a number of documents  that  the accused  wanted  for his defence were not  produced  by  the prosecution  and were intentionally withheld.  Reference  in this  connection may be made to an application submitted  by the accused to the court on the 20th April, 1950.  It reads thus :- "As  many  documents  were  called for  in  defence  of  the accused,  it  was replied from the police or from  the  Home Department  that  the  documents  in  question  were  either destroyed in the course of the police action, or as they are

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confidential,  could  not  be sent.  You  are  requested  to review  the  excuses  put  forth  by  the  police  or  other departments.   In  Warangal proper neither any  firing  took place  nor  any offices were burnt.  I  and  Taluqdar  Sahib lived  in the headquarters for many months after the  police action.   Taluqdar  Sahib lived for four  months  after  the police action, and I lived there for nearly one month  after the police action.  Each and every document of my office and Taluqdar’s  office are safe and which can be ascertained  by the Civil Administrator, Warangal, himself.  This is my last prayer  to  you  to send immediately today  for  summary  of intelligence of second, third and fourth weeks of the  month of  Bahman,  1357 -F., from the office of the Peshi  of  Mr. Obal Reddy, the District Superintendent of Police, Warangal. These weekly reviews are confidential which are prepared  at the C.I.D. branch of the office of the -Inspector-General of Police,  and  despatched  to the  districts.   The  District Superintendents -of Police used to send these reviews to the Deputy Commissioner of Police, Subedars and Taluqdars.   The Gurtur  incident  was mentioned in them.  If  they  are  not available from the office of the District Superintendent  of Police, Warangal,, they may be called for from the office of the  Inspector-General  of Police, C.I.D., and they  may  be held in the record." 503 On this application the court recorded the following order:- "The way in which the accused Habeeb Mohamed remarked on the higher office that documents are either not received or that they  are  destroyed  is not the proper  way  of  remarking. Investigation against officers cannot be conducted.  Besides this,  in  this file all other things are  decided  and  the accused   was   given  sufficient  time.   Filing   -of   an application on every hearing is not to be tolerated." The  appellant’s counsel, produced before us a list  of  the documents  which were asked for, some of which were  brought into court and regarding some the report was that they  were destroyed  or were not available.  We cannot accede  to  the contention of the learned counsel that the court was  called upon  to  make investigation into the question  whether  the replies  from different officers as to what  documents  were destroyed or were not available were correct or not.  It was open  to  the  counsel for the accused,  whenever  any  such report  came, to challenge the statement and at  that  stage the  court  might  have  been  in  a  position  to  ask  the prosecution  to  support  their  replies  by  affidavits  or otherwise.   It, however, does appear somewhat curious  that important  documents which were required by the  defence  to establish the appellant’s version of the incident are stated to  have  been  destroyed  or  not  available.   Such   bald assertions do not create much confidence in the mind of  the court  and  it does not appear that there was  any  occasion during  police action for the officer responsible for it  to destroy records made by police officers and submitted to the Inspector-General  of Police or to the Home Secretary.   The appellant  to  a  certain  extent  was  justified  in   such circumstances  to ask the court to raise the inference  that if  these  documents  were  produced  they  would  not  have supported the prosecution story. The   learned  Advocate-General  appearing  for  the   State contended that assuming that the failure of the  prosecution to examine Biabani has caused, serious 504 prejudice  to the accused or that the denial of  opportunity to  him  to examine certain witnesses in  defence  has  also caused him serious prejudice, this court may direct the High

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Court to summon the witnesses and record their statement and transmit  them  to  this court and that the  appeal  may  be decided after that evidence has been taken.  In our opinion, this   course   would  not  be  proper   in   the   peculiar circumstances  of  the  present case.  It  is  not  possible without  setting  aside the conviction of the  appellant  to reopen  the  case  and allow the prosecution  to  examine  a material  witness  or  witnesses that  ought  to  have  been produced  and  allow  the  defence  also  to  lead   defence evidence.    A  conviction  arrived  at  without   affording opportunity  to  the  defence  to  lead  whatever   relevant evidence  it wanted to pro-, duce cannot be sustained.   The only course open to us in this situation is to set aside the conviction.  The next question for consideration is  whether in  the result we should order a retrial of  the  appellant. After a careful consideration of the matter we have  reached the conclusion that this course will not be conducive to the ends  of  justice.   The  appellant  was  in  some  kind  of detention even before he was arrested.  Since January, 1949, up  to  this  date  he has  -either  been  in  detention  or undergoing  rigorous imprisonment and sirce the  last  three years  he  has  been  a  condemned  prisoner.   The   events regarding  which evidence will have to be taken afresh  took place on the 9th December, 1947, and after the lapse of  six years it will be unfair and contrary to settled practice  to order a fresh trial.  In our opinion, as in substance  there has  been  no  fair and proper trial in this  case,  we  are constrained  to allow this appeal, set aside the  conviction of  the  appellant  under  the  different  sections  of  the Hyderabad  Penal Code and direct that he be set  at  liberty forthwith  .  It may well be pointed out that if  there  had been  mere  mistakes  on the part of the court  below  of  a technical character which had not occasioned any failure  of justice  or  if the question was purely one  of  this  court taking  a different view of the evidence given in the  case, there  would  have  been no interference  by  us  under  the provisions  of  article  136-  of  the  Constitution.   Such questions 505 are  as  a  general  rule treated as  being  for  the  final decision of the courts below.  In these circumstances it  is unnecessary to examine the merits of the case on which  both the learned counsel addressed us at some length. , Before  concluding,  however, it maybe  mentioned  that  Mr. McKenna  apart from the points above mentioned raised a  few other points of a technical character but on those points we did not call upon the learned Advocate-General in reply.  It was  contended  that the court did not examine  the  accused under  section 256, Criminal Procedure Code,  after  further crossexamination  of  the witnesses.  In our  opinion,  this omission  was not material as nothing further appeared  from the cross-examination which the court could ask the  accused to  explain.  The accused had given a full statement on  all the matters which required explanation in the case.  Then it was  argued  that  under  the Hyderabad  law  at  least  two witnesses  are necessary in a murder trial for a  conviction in  such a case.  In this case more than two witnesses  were produced who directly or indirectly implicated the appellant with the commission of the murder.  The section of the  Code referred to does not lay down that there should be two  eye- witnesses  of  the  occurrence before a  conviction  can  be reached as regards the offence.  Further it was argued  that the’ Special Judge had no jurisdiction because H. E. H.  the Nizam  had not given his assent to the law as  contained  in Ordinance  X  of  1359-F.   In  our  opinion,  there  is  no

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substance  in  this  contention because the  Nizam  under  a fireman  bad  delegated  all his  powers  of  administration including power of legislation to the Military Governor  and that  being  so,  no  further reference  to  the  Nizam  was necessary  and the Military Governor was entitled  to  issue the  Ordinance in question.  Lastly it was argued  that  the sanction  for  the prosecution of the  appellant  under  the provisions of section 207 of the Hyderabad Code of  Criminal Procedure  (corresponding  to section 197  of  the  Criminal Procedure  Code)  was  given  after  the  Judge  had   taken cognizance  of the case.  We see no force in this  point  as well.  Before the- trial started 506 the  court  was  fully seized of the case and  by  then  the sanction had been given.                                   Appeal allowed.                                   Conviction set aside.    Agent for the appellant: Rajinder Narain. Agent for the respondent: G. H. Rajadhyaksha.