Aftab Ahmad Khan vs The State Of Hyderabad
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 82 of 1953
Decision Date: 6 May 1954
Coram: Ghulam Hasan, B.K. Mukherjea, Vivian Bose
In the matter of Aftab Ahmad Khan versus the State of Hyderabad, the Supreme Court rendered its judgment on 6 May 1954. The opinion was authored by Justice Ghulam Hasan, who sat on a bench together with Justice B.K. Mukherjea and Justice Vivian Bose. The petitioner in the appeal was Aftab Ahmad Khan and the respondent was the State of Hyderabad. The decision was recorded on the same date, 6 May 1954, and the bench composition is reiterated as Justice Ghulam Hasan, Justice B.K. Mukherjea and Justice Vivian Bose. The case is reported in the Indian Apex Court Reports at citation 1954 AIR 436 and also in the Supreme Court Reporter at 1955 SCR 588. The legal provisions under consideration were sections 233 and 235 of the Criminal Procedure Code, Act V of 1898. Section 233 sets out the general rule governing the joinder of charges, requiring that each distinct offence be framed in a separate charge and tried separately. The object of this rule is to protect an accused from difficulty in defence that might arise if different offences were combined in a single charge or tried together. However, the legislature introduced several exceptions to this rule, namely sections 234, 235, 236 and 239. Section 235, in particular, allows that when a single series of acts, connected as one transaction, gives rise to more than one offence committed by the same person, the accused may be charged with, and tried for, all the offences in one trial.
The facts presented by the prosecution indicated that an extortion offence committed on a specific day formed part of a continuous series of acts that also included murder and an attempt to murder committed on the preceding day, thereby constituting a single transaction. Evidence showed that the accused, who held the rank of Reserve Inspector of Police, began his criminal conduct by leaving the police station and subsequently engaged in a sequence of acts that involved killing, injuring individuals, unlawfully confining persons and extorting money from one of the victims. Consequently, the series of acts was characterised as one transaction in which two offences, though apparently distinct, were committed. The Court held that, on the basis of these circumstances, the case fell within the ambit of section 235 of the Criminal Procedure Code, and the joinder of the charges was therefore permissible under the exception provided by that section. The Court also observed that the two High Court judges hearing the appeal were divided on the guilt of the accused; the third judge, whose reference was considered, agreed with the judge upholding the conviction and sentence. While the Court noted that, as a matter of convention and not strict law, the imposition of the extreme penalty should ordinarily be avoided in such a split decision, it proceeded to pronounce its judgment. The judgment was delivered in the criminal appellate jurisdiction concerning Criminal Appeal No. 82 of 1953, filed under article 134(1)(c) of the Constitution of India, and it appealed against the judgment and order dated 16 August 1953.
The appeal originated from a judgment of the High Court of Judicature at Hyderabad in Criminal Appeal No 1557/6 of 1950, which itself arose from a judgment and order dated 16 October 1950 of the Court of Special Judge, Warangal, in Case No 28/2 of 1950. Counsel for the appellant, identified as A A Peerbhoy, J B Dadachanji and Rajinder Narain, represented the accused, while counsel for the respondent, Porus A Mehta and P G Gokhale, appeared for the State. The judgment of the Supreme Court was delivered on 6 May 1954 by Justice Ghulam Hasan. The factual background recorded that the appellant had been tried and convicted by the Special Judge, Warangal, for several offences under the Hyderabad Penal Code. These offences corresponded to sections 302, 307, 347 and 384 of the Indian Penal Code. The court had imposed the death penalty for the charge under section 302, a sentence of life imprisonment for the charge under section 307, and separate sentences of two years’ rigorous imprisonment for the offences under sections 347 and 384. On appeal, the two learned judges of the Hyderabad High Court were divided: Justice Manohar Pershad upheld both the convictions and the sentences, whereas Justice M S Ali Khan acquitted the appellant of all charges. Because of this divergence, a third judge, Justice A Srinivasachari, was referred the matter and, agreeing with Justice Manohar Pershad, affirmed the convictions. Accordingly, the two judges who concurred granted leave to appeal to this Court. The incident that gave rise to the prosecution occurred on 13 September 1948, the first day of Police action in Hyderabad. At that time the appellant was a Reserve Inspector of Police stationed at Mahbubabad. According to the prosecution narrative, he visited the villages of Rajole and Korivi accompanied by a number of Razakars and police personnel. He arrested Janaki Ramiah (identified as PW 5) and Nerella Ramulu (PW 9) at Rajole and transferred them to Korivi. While outside the village in waste land, he observed four men proceeding to their fields and opened fire with his gun. Two of the men, identified as Mura Muthiah and Somanaboyanna Muthandu (PW 2), sustained knee injuries; the other two, Kotta Ramiah (PW 3) and Kancham Latchiah (PW 4), escaped injury by taking cover behind babul trees. PW 2 fled and concealed himself in nearby bajra fields, whereas the deceased fell where he lay. The appellant pursued the three who had fled, captured PW 3 and PW 4 and brought them to the location of the wounded man, but was unable to locate PW 2. Seeing that Mura Muthiah was still alive, the appellant fired a second shot to the chest, resulting in the man’s death. The remaining party—PW 3, PW 4, PW 5 and PW 9—then proceeded to Korivi village. The appellant spent the night at the residence of a villager named Maikaldari. Both Maikaldari and another villager, Berda Agiah (PW 8), questioned the appellant about his arrest of PW 3 and PW 4, noting that they were not members of the Congress party; in response, the appellant released them. The prosecution further alleged that the father of the deceased (PW 1) later approached the appellant on the night of 13 September to inquire why his son had been killed, and that the appellant advised him to cremate the body without providing further comment.
On the night of 13 September, the appellant approached the father of the deceased and inquired why he had killed his son, after which the appellant, without further comment, advised the father to cremate the body; the father, identified as P W I, consequently borrowed wood from villagers and performed the cremation.
Four months later, the appellant travelled to the Government bungalow at Korivi, where he stayed and summoned P W I, offering him two hundred rupees as a payment intended to keep the offence undisclosed; P W I refused the offer.
After being released, P W 3 and P W 4 informed the father of P W 2 the following morning that his son lay injured in the bajra field; the father proceeded to retrieve P W 2 and had him taken to a hospital where his injuries were treated.
During that same morning, the appellant, who was holding P W 5 and P W 9 in custody, demanded that each of them pay two hundred rupees in order to obtain their release; P W 5 complied by accompanying a constable to the homes of P W 6 and P W 7, borrowing one hundred rupees from each, and after receiving the total sum he was released.
P W 9, however, was unable to provide any money and consequently was released without payment.
The defence denied the existence of any offence, with the appellant asserting that he had never visited the village in question and that he had not committed any of the acts attributed to him; he explained that his posting at Mahbubabad was intended to suppress subversive communist activities and that the witnesses, being communists, had falsely implicated him, and he presented witnesses in support of this version.
The First Information Report relating to the case was lodged on 14 April 1949; the delay in filing was attributed to the disturbed conditions prevailing at the time and was held not to affect the veracity of the narrative.
The appellant was thereafter prosecuted, with the charge-sheet being filed on 30 October 1949; a Munsiff Magistrate framed the charge and committed the appellant to the Sessions Court, where a Special Judge ultimately convicted and sentenced him, a judgment that was subsequently upheld by a majority of two judges.
Counsel for the appellant submitted that his client had been denied a fair trial and enumerated numerous circumstances to support this claim; the Court considered it unnecessary to address each of those points individually, finding that they were insubstantial and did not demonstrate any prejudice or miscarriage of justice.
The Court limited its examination to a few matters that required consideration, one of which concerned the appellant’s complaint that he had not been provided with copies of the statements of prosecution witnesses recorded by the police, a circumstance that hampered his ability to cross-examine those witnesses against their prior statements.
It appears that the appellant, through his counsel, filed an application on 28 August 1950 requesting copies of those statements under section 162 of the Criminal Procedure Code; the corresponding provision in the Hyderabad Penal Code, section 166, differs from section 162.
While section 162 imposes a duty on the Court to direct that a copy of a police-recorded witness statement be furnished to the accused for the purpose of cross-examination, section 166 imposes no such duty and leaves the matter to the Court’s discretion.
The application sought the copies for the purpose of re-cross-examination of witnesses, which pertains to the final stage of the prosecution’s evidence; the order that was translated from the original was unintelligible and failed to convey the Court’s true intention.
However, the original order clarified that the case diaries and the witness statements were present in the Court and that the appellant’s counsel could examine them to assist in the re-cross-examination, subject to any later discretion of the Court to provide copies.
The Court observed that the provision cited by the appellant, section 166 of the Hyderabad Penal Code, is not identical to section 162 of the Code of Criminal Procedure. Under section 162, the Court is obligated to order that a copy of a police-recorded witness statement be furnished to the accused so that he may cross-examine the witness with reference to that prior statement. Section 166, by contrast, imposes no such duty; it leaves the matter entirely to the Court’s discretion. The appellant had filed an application on August 28, 1950, seeking copies of statements for the purpose of re-cross-examination, which is the final stage of the prosecution’s case. The order recorded in the translation was unintelligible, but the original order made clear that the case diaries and statements were present in the Court and that the appellant’s counsel was permitted to examine them to assist in the re-cross-examination. The order further indicated that if the Court later deemed it necessary to furnish copies, it would consider doing so. No objection or complaint about prejudice arising from this order was raised before the Special Judge, nor was the issue taken up before the High Court. The Court noted that, had the appellant possessed a legitimate grievance on this ground, he would have raised it at the appropriate stage, and therefore found no merit in the point. The appellant also argued that the prosecution should have produced his duty register, as he was a government servant, to establish whether he had left his headquarters on the critical date. The Court held that it was not the prosecution’s duty to produce such a register, especially since direct evidence of the offence had already been produced. Nevertheless, the appellant summoned the Sub-Inspector of Police with the attendance register for the year 1358 Fasli (corresponding to October 1948). The Deputy Superintendent wrote that the entries for October had been recorded in the register for 1357 Fasli, which was later destroyed during police action. The appellant’s counsel examined the surviving register, observed that the October entry was absent and had been made in the destroyed register, and consequently withdrew the witness. From this inspection the appellant concluded that the required entries could not be found. Because the relevant register had been destroyed, the prosecution could not meet the alleged burden of proving the entries for the material date. The appellant also made a faint claim that there was no evidence that Mura Muthiah had actually died. The father of the deceased testified that his son’s body was cremated, and this testimony was supported by other witnesses. The Court found this contention to be without force.
The Court observed that the testimony that the appellant’s son had been cremated by his father was supported by additional witnesses, but it found no persuasive force in that assertion. Consequently, the Court concluded that the appellant had failed to prove his allegation that the trial had not been fair. The appellant’s counsel then raised a second argument, contending that the charges had been improperly joined; specifically, while the charges of murder and attempted murder could be tried together, the charges of extortion and wrongful confinement were distinct offences that, under the mandatory requirements of section 233 of the Code, should have been framed and tried separately. The Court noted that the murder and attempted murder offences occurred on the night of 13 September 1948, whereas the alleged extortion took place on the following morning, 14 September 1948, and that the latter offence bore no connection to the offences committed during the previous night. Counsel further argued that the violation of the explicit provision in section 233 regarding the mode of trial rendered the entire trial void, and that the appellant need not demonstrate any prejudice resulting from the alleged misjoinder. This argument relied upon the decision in Subramania Ayyar v. King-Emperor (1), which held that the statutory prohibition against joining distinct offences makes the trial illegal and not merely an irregularity that could be cured under section 537. The Court explained that the Subramania Ayyar case involved an accused charged with forty-one acts spanning two years, a situation that contravened section 234, which permits the trial of only three offences of the same kind committed within twelve months. The Court then referenced the Privy Council’s distinction of that decision in Abdul Rahman v. The King-Emperor (1), a case concerning a conviction for abetment of forgery where some witness statements were handed to the witnesses for self-reading rather than being read out in court. The Privy Council held that, although the procedure violated section 360, it constituted a mere irregularity under section 537 and, because no miscarriage of justice occurred, the trial was not vitiated. Both of these authorities were later cited by the Privy Council in Babulal Chaukani v. King-Emperor (1). In that matter, the Council examined the effect of section 239(d), which allows persons accused of different offences committed in the course of the same transaction to be charged and tried together. The issue before the Court was whether the appropriateness of such joinder should be assessed by examining the nature of the alleged transaction at the time of accusation or by considering the ultimate result of the charges. The Court therefore considered the proper approach to determining the validity of the joinder of offences in the present case.
In the present matter, the Court observed that the crucial moment for determining the propriety of joinder is the time at which the accusation is made, rather than the time at which the final result of the alleged conduct occurs. The specific charges before the trial were two offences: conspiracy to steal electricity and theft of electricity, each punishable under the Electricity Act as well as under the Penal Code. The Privy Council was cited for the proposition that the parties had treated a breach of section 239(d) as an illegality that would invalidate the trial, applying the principle articulated in Subramania Ayyar v. King-Emperor. This approach was contrasted with the view expressed in Abdul Rahman v. The King-Emperor, where an irregularity was deemed insufficient to vitiate the proceedings. The Privy Council, however, accepted the parties’ characterization without feeling it necessary to examine the exact scope of the Subramania Ayyar decision, because it held that the point did not arise for consideration. In a later decision, Pulukuri Kottaya and Others v. Emperor, the Privy Council treated a breach of section 162 of the Code as a mere procedural irregularity that could be cured under section 537, and, finding no prejudice to the accused, declared the trial valid. That judgment also referred back to Subramania Ayyar, noting that when an error or irregularity occurs in the conduct of a trial—even if it amounts to a breach of one or more provisions of the Code—it may be regarded merely as an irregularity, a view supported by the earlier Abdul Rahman case. Several High-Court judgments were cited by counsel in an effort to demonstrate the current state of the law in light of the Privy Council authorities, but the Court concluded that the issue they raised did not arise in the facts of the present case.
The Court further expressed the opinion that the present proceedings do not fall within the ambit of section 233 of the Code, and therefore it is unnecessary to determine whether any breach of that section’s provisions would constitute an illegality that invalidates the trial or merely a curable irregularity under section 537. Section 233 embodies the general rule on the joinder of charges, providing that each distinct offence must be set out in a separate charge and each such charge should be tried separately. The purpose of this rule is to protect an accused from being disadvantaged in his defence by having distinct offences combined in a single charge or tried together. Nevertheless, the Legislature has carved out certain exceptions to this rule in sections 234, 235, 236 and 239. After examining the facts and circumstances of this case, the Court is of the view that the situation falls within the exception provided by section 235, which permits that where a series of acts are so connected as to form the same transaction, a person who commits more than one offence in that series may be charged with, and tried for, each offence in a single trial.
In this case the Court observed that section 235 of the Code permits a person who commits more than one offence in a single series of acts that are so connected as to form the same transaction to be charged with, and tried for, each offence in a single trial. The evidence presented by the prosecution demonstrated that the extortion offence dated 14 September was part of a continuous series of acts that included the murder and attempted murder committed on the preceding day, and that these acts together constituted one transaction. According to the prosecution’s narrative, the appellant, accompanied by his party, apprehended two individuals identified as PW 5 and PW 9 at Rajole and conveyed them to Korivi, detaining them without any lawful justification. While outside the village, the appellant allegedly opened fire on the deceased, PW 2, as well as PW 3 and PW 4, causing the deceased to fall and the others to flee. The appellant is said to have pursued the fleeing persons, retrieved two of them, and returned them to the location where the deceased lay still alive. He then allegedly shot the deceased in the chest, resulting in death, and subsequently proceeded to the village where he remained for the night. The appellant reportedly released PW 3 and PW 4 after intercession by certain individuals, but continued to hold PW 5 and PW 9 in unlawful confinement, finally releasing them the next morning after extorting a sum of Rs 200 from PW 5. The Court found that these facts, as recorded in the evidence, leave no doubt that from the moment the appellant left the police station he engaged in a series of acts involving killing, injuring persons, illegal confinement, and extortion of money. Consequently the Court was satisfied that these acts formed a single transaction in which the two alleged offences, although distinct, were committed together. This situation falls squarely within the ambit of section 235, and therefore the Court concluded that the alleged misjoinder of charges was permissible under the statutory exception. No breach of the explicit provision of section 233 was identified, and consequently the Court saw no need to examine whether any alleged violation of procedural provisions would vitiate the trial as an illegality, as opposed to a curable irregularity under section 537. The Court determined that this analysis resolves the challenge concerning misjoinder of charges. Although the extortion offence occurred at a different location and time, the Court held that this does not preclude treating it as part of the same transaction. Turning to the merits, the Court expressed that it was not convinced that the appellant suffered any prejudice due to the joinder. It further noted that it was not possible to infer that the Court, influenced by the evidence concerning extortion, would have been easily misled into accepting the evidence relating to the murder charge.
In this case, the Court observed that the persons who testified about the alleged extortion were P.W. 5 and P.W. 9, both of whom had been seized from the village of Rajole and unlawfully detained. The Court recorded that P.W. 5 had been released only after a payment of two hundred rupees was made, while P.W. 9 had been allowed to go without any payment. Both of these individuals also gave evidence about the murder, joining three additional witnesses identified as P.W. 2, P.W. 3 and P.W. 4. The Court further noted that P.W. 5 had suffered a gun-shot injury but survived the wound, whereas the other two witnesses had been frightened by the sound of the gun-shot and had fled, seeking shelter beneath a babul tree.
The Court rejected the suggestion that the Sessions Judge, once convinced by P.W. 5’s testimony on the extortion charge, must necessarily have been persuaded that P.W. 5’s account of the murder was also correct, because the murder allegation was supported not only by P.W. 5 but also by three other independent witnesses. The Court also considered the contention that the judgment of the agreeing Judge Manohar Pershad J. was purely mechanical and showed no genuine engagement with the facts, noting that no similar objection had been raised against the judgment of the other agreeing Judge, Srinivasachari J. The Court acknowledged that Judge Pershad J. had quoted extensively from the witness statements and that his commentary on the evidence was not as detailed as might be expected, but it observed that such a style of judgment-writing is fairly common in Hyderabad, even if it is not particularly commendable.
The Court affirmed that it is the duty of a tribunal to summarise the evidence of material witnesses and to evaluate that evidence in order to decide whether the testimony should be believed. Accordingly, the Court found the criticism that the judgment was mechanical and failed to appreciate the evidence to be without merit. The Court noted that the trial Judge had accepted the prosecution’s evidence and had rejected the defence’s claim that the deceased had been killed by the Military and that the appellant had not been present at the time of the incident, a conclusion that was endorsed by both agreeing Judges. Because the appraisal of evidence had been properly undertaken, the Court held that it could not disturb the finding of guilt. The Court was satisfied that there was no sufficient ground to set aside the appellant’s conviction. The remaining issue was whether the death sentence was appropriate; the Court observed that no special circumstances existed to warrant a penalty other than the normal punishment for murder. However, where two High Court Judges on appeal were divided on the guilt of the accused and a third Judge agreed with the side upholding the conviction and sentence, the Court considered this division relevant for its further deliberations.
The Court observed that, as a matter of judicial convention rather than a strict rule of law, it is generally preferable that the most severe punishment should not be imposed, although the law does not compel such a preference. Accordingly, while the Court upheld the conviction of the appellant, it altered the punishment by substituting the death sentence with a term of transportation for life. The Court further stated that, with respect to all other points raised in the appeal, the appeal was dismissed. Finally, the Court directed that every sentence imposed in the case would run at the same time, that is, all sentences would operate concurrently.