http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: AFTAB AHMAD KHAN

       Vs.

RESPONDENT: THE STATE OF HYDERABAD.

DATE OF JUDGMENT: 06/05/1954

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM MUKHERJEA, B.K. BOSE, VIVIAN

CITATION:  1954 AIR  436            1955 SCR  588

ACT: Criminal Procedure Code (Act V of 1898), ss. 233,  235-Scope of  s. 233-Law as to joinder of charges-exception  there  to enacted in s. 235--Joint trial of distinct offences.

HEADNOTE: Section  233  of the Code of Criminal Procedure  (Act  V  of 1898) embodies the general law as to the joinder of  charges and  lays down a rule that for every distinct offence  there should. be a 589 separate  charge  and  every such  charge  should  be  tried separately.   No doubt the object of section 233 is to  save the  accused  from  being  embarrassed  in  his  defence  if distinct  offences are lumped together in one charge  or  in separate charges and are tried together but the  Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239. Section 235 of the Code of Criminal Procedure provides  that if  in one series of acts so connected together as  to  form the  same transaction, more offences than one are  committed by the same person, he may be charged with, and tried at one trial for every such offence. The  prosecution story showed that the offence of  extortion committed  on a particular day was one of a series  of  acts connected  with the offence of murder and attempt to  murder committed on their previous day in such a way as to form one transaction. The  incidents  related in the evidence left no  doubt  that from the moment the accused (a Reserve Inspector of  Police) started from the Police State, he committed a series of acts involving  killing,  injuring people,  unlawfully  confining others  and extorting money from one of them  and  therefore the  series  of  acts  attributed  to  him  constituted  one transaction  in the course of which two offences which  were alleged to be distinct were committed. Held, that under the circumstances the case fell within  the purview of section 235 of the Code of Criminal Procedure and such joinder was permitted by the exception enacted in  that section.  Where  the  two  Judges of the High  Court  on  appeal  are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

divided in their opinion as to the guilt of the accused  and the third Judge to whom reference is made agrees with one of them  who  is upholding the conviction and sentence,  it  is desirable  as a matter of convention though not as a  matter of strict law that ordinarily the extreme penalty should not be imposed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 82  of 1953. Appeal under article 134(1)(c) of the Constitution of  India from the Judgment and Order dated the 16th August, 1953,  of the High Court of Judicature at Hyderabad in Criminal Appeal No.  1557/6 of 1950, arising out of the Judgment  and  Order dated the 16th October, 1950, of the Court of Special Judge, Warangal, in Case No. 28/2 of 1950.  A.  A. Peerbhoy, J. B. Dadachanji and Rajinder  Narain  for the appellant. Porus A. Mehta and P. G. Gokhale for the respondent. 590 1954.  May 6. The Judgment of the Court was delivered by GHULAM HASAN J.-The appellant was tried and convicted by the Special  Judge,  Warangal, for various  offences  under  the Hyderabad  Penal  Code.  These correspond to  sections  302, 307,  347  and 384 of the Indian Penal Code,  the  sentences awarded  under  the first two  sections  respectively  being death and life imprisonment, and separate sentences ’of  two years’ rigorous imprisonment under the latter two.  The. two learned  Judges  of the High Court, who  heard  the  appeal, differed, Manohar Pershad J. upholding the convictions,  and the  sentences  and  M.  S.  Ali  Khan  J.  acquitting   the appellant.   The third learned Judge, A. Srinivasachari  J., on  reference  which  was Occasioned by  the  difference  of opinion  agreed with Manohar Pershad J. Leave to  appeal  to this Court was granted by the two agreeing Judges. The occurrence which led to the prosecution of the appellant took place on September 13,1948, which was the beginning  of the first day of Police action in Hyderabad.  The appellant, who was Reserve Inspector of Police stationed at  Mahbubabad at  the material time, according to the  prosecution  story, visited  two  villages Rajole and Korivi  accompanied  by  a number  of  Razakars  and the Police.   He  arrested  Janaki Ramiah  (P.W. 5) and Nerella Ramulu (P.W. 9) at  Rajole  and took them to Korivi.  Outside this village in the waste land he  spotted four men going to their fields and shot at  them with  his gun.  The deceased Mura Muthiah and  Somanaboyanna Muthandu (P.W. 2) were injured in the knee, while the  other two Kotta Ramiah (P.W. 3) and Kancham Latchiah (P.W. 4) were uninjured.   The latter two hid themselves behind the  babul trees.   P.W. 2 also ran away and hid himself in  the  bajra fields  a few yards away but the deceased remained where  he fell.  The appellant searched for the three persons who  had run  away.  He caught P.W. 3 and P.W. 4 and brought them  to the spot where the deceased was lying but he could not trace P.W. 2. The appellant seeing that Mora Muthiah was not dead, shot him in the chest and killed him.  The whole party 591 consisting of P.W. 3, P.W. 4, P.W. 5 and P.W. 9 then went to Korivi  village.  The appellant stayed at the house  of  one Maikaldari  in  the  village  and  spent  the  night  there. Maikaldari  and  one  Berda Agiah (P.W. 8)  both  asked  the appellant  why he had arrested P.W. 3 and P.W. 4,  for  they were  not  Congress men.  Upon this the  appellant  released

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

them.  The prosecution story proceeds that the father  (P.W. 1)  of  the deceased saw the appellant in the night  of  the 13th September and asked him why he had killed his son.  The appellant  without  saying more advised him to  cremate  the dead  body.   P.W.  I  borrowed wood  from  the  people  and cremated the body.  Four months later the appellant went and ,stayed at the Government bungalow Korivi, -sent for P.W.  I and  offered him Rs. 200/- as hush-money for not  disclosing the offence.  The offer was refused.  P.W. 3 and P.W. 4  who had  been  released told the father of P.W. 2  next  morning that his son was lying injured in the bajra field.  He  went and  had P.W. 2 removed to the hospital where  his  injuries were attended to. On the same morning the appellant, who had detained P.W. 5 and P.W. 9 in custody, asked them to pay Rs. 200/-  when  they  would be released.  P.W. 5  went  with  a constable to the house of P.W. 6 and P.W. 7 and borrowed Rs. 100/-  from  each  of  them.  On  this  being  paid  he  was released.  P.W. 9 was unable to pay any money and he was let off. The  defence  was a denial of the  offence.   The  appellant denied  having  zone to the village in  question  or  having committed any of the offences attributed to him.  He  stated that  he  was  posted at Mahbubabad in  order  to  stop  the subversive  activities  of  the  communists  and  that   the witnesses  being communists had falsely implicated him.   He produced witnesses in defence. The  First Information Report was lodged on  April  14,1949. This delay was due to the disturbed conditions prevailing at the  time and does not affect the truth of the  story.   The appellant  was  prosecuted and the  charge  sheet  submitted against him on October 30, 1949.  The charge was framed by a Munsiff  Magistrate  who  committed  the  appellant  to  the Sessions.   As  already ,stated, the learned  Special  Judge convicted and 592 sentenced  the appellant and his convictions  and  sentences were upheld by a majority of two Judges. It  has  been  argued by Mr. Peerbhoy,  learned  counsel  on behalf  of the appellant, that his client had no fair  trial and has detailed a number of circumstances as supporting his contention.   We think it unnecessary to deal with each  and every  one of these circumstances as in our opinion they  do not affect the substance of the matter and are too  trifling to  justify the conclusion that the appellant  suffered  any prejudice  or that any miscarriage of justice had  resulted. We shall confine ourselves only to a few of them which  need examination.   It was complained that the appellant was  not furnished  with  copies  of the  statements  of  prosecution Witnesses  recorded  by  the Police and  this  hampered  the appellant in cross-examining the witnesses with reference to their  previous statements.  It appears that  the  appellant filed  an  application through counsel on August  28,  1950, asking  for copies of such statements under section  162  of the  Code of Criminal Procedure.  The corresponding  section of the Hyderabad Penal Code is 166 which is not the same  as section 162.  While under section 162 it is the duty of  the Court  to  direct  a  copy of the  statement  of  a  witness recorded by the Police in the course of investigation to  be furnished to the accused with a view to enable him to cross- examine  such  a  witness with  reference  to  his  previous statement,  no such duty is imposed by section 166  and  the matter  is  left entirely to the discretion  of  the  Court. This  application  was  made  for  re-cross-examination   of witnesses  which obviously refers to the last stage  of  the prosecution  evidence.  The order passed on the  application

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

as translated is unintelligible and does not convey the real intention of the Court.  The original which was shown to us, however,  leaves  no doubt whatever that the  Court  ordered that  the case diaries and the statements were in Court  and the appellant’s counsel could look into them with a view  to help him in the re-cross-examination of the witnesses but if the Court later felt the necessity of furnishing copies, the matter  would be considered.  No complaint was  made  before the Special Judge about any prejudice having been caused  to the 593 appellant by this order, nor was this point taken before the High  Court.   Had the appellant any legitimate  ground  for grievance  on this score, he would no doubt have  raised  it before  the High Court.  We think, therefore, that there  is no substance in this point. It  was  also  contended that the  prosecution  should  have produced  the  duty  register of the appellant  who  was-  a Government  servant in order to put the matter beyond  doubt whether,the accused had left the Headquarters on the crucial date.  We do -.lot think that it was any part of the duty of the  prosecution to produce such evidence,  particularly  in view  of  the fact that direct evidence of the  offence  was produced  in  the  case.   It  appears,  however,  that  the appellant himself summoned the Sub-Inspector of Police  with the  attendance  register for 1358 Fasli,  corresponding  to October,  1948.  The Deputy Superintendent of Police in  his letter had stated that the entries for October were made  in the register for 1357 Fasli and that register was  destroyed during the Police action.  The appellant’s counsel inspected the register and on noticing that the entry for October  did not  find a place therein and had been made in the  previous register  for  1357 Fasli, which was  destroyed  during  the Police  action,  he  withdrew the  witness.   The  appellant satisfied himself from the inspection of this register  that the  desired  entries  were  not to  be  found.   Since  the register  containing the material entries was destroyed,  it was impossible for the prosecution to discharge the  alleged burden  of proving the entries in the duty register  on  the material date. It was also faintly contended that there was no evidence  to show that Mura Muthiah had actually died.  The father of the deceased  gave  evidence that the dead body of his  son  was cremated  by  him  and in this he  was  supported  by  other witnesses.  There is no force in this point. Upon  the whole we are satisfied that the appellant has  not been  able  to substantiate his contention that he  did  not have a fair trial. The  next  contention advanced by  the  appellant’s  learned counsel is that there was a misjoinder of 76 594 charges,  -that though the charges of murder and attempt  to murder  could be joined and tried together, the  charges  of extortion  and wrongful confinement were  distinct  offences for  which the appellant should have been charged and  tried separately  as  required  by  the  mandatory  provisions  of section 233 of the Code.  The first two offences took  place on  September  13,  1948, in the night,  while  the  act  of extortion took place next morning on the 14th and the latter charge  had  nothing  whatever  to  do  with  the   offences committed  on the previous night.  Learned counsel  contends that  where,  as here, there is disobedience to  an  express provision as to the mode of trial contained in section  233, the trial is wholly vitiated and the accused is not bound to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

show  that the misjoinder has caused any prejudice  to  him. The  contention is based on the case of Subramania Ayyar  v. King-Emperor(1)  showing  that the  misjoinder  of  distinct offences  being prohibited by the express provision  of  the Code renders the trial illegal and does not amount to a mere irregularity  curable  by section 537.  This was a  case  in which the accused was charged with 41 acts extending over  a period of two years which was plainly against the provisions of section 234 which permitted trial only for three offences of  the  same kind if committed within a  period  of  twelve months.  The decision of Lord Halsbury, Lord Chancellor,  in this  case was distinguished in the case of Abdul Rahman  v. The King-Emperor (1) by the Privy Council.  That was a  case of  conviction on a charge of abetment of forgery  in  which the depositions of some witnesses were not read over to  the witnesses  but were handed over to them to read  themselves. It was held that though the course pursued was in  violation of the provisions of section 360, it was a mere irregularity within  section  537 and that as no failure of  justice  had been occasioned, the trial was not vitiated. Both the  above cases  were  referred  to by the Privy  Council  in  Babulal Chaukani  v.  King-Emperor(1).. The question  in  that  case arose  as  to  the  true effect  of  section  239(d),  which provides that persons who are (1)  28 I.A. 257. (2)  541.A. 96, (3) A.I.R. 1938 P.C. 130, 595 accused of different offences committed in the course of the same  transaction  may be charged and tried  together.   The question  was whether the correctness of the  joinder  which depends  on  the  sameness  of  the  transaction  is  to  be determined by looking at the accusation or by looking at the result of the trial.  It was held that the relevant point of time is the time of accusation and not that of the  eventual result.   The charges in this case were conspiracy to  steal electricity   and  theft  of  electricity  both  under   the Electricity Act and under the Penal Code.  The Privy Council referred  to  the  fact  that the  parties  had  treated  an infringement  of section 239(d) as an  illegality  vitiating the trial under the rule stated in Subramania Ayyar v.  King Emperor(1) as contrasted with the result of irregularity  as held  in Abdul Rahman v. The King,, Emperor (2) . The  Privy Council  merely  assumed  it to be so  without  thinking  it necessary  to discuss the precise scope of the  decision  in Subramania’s  case, because in their view the  question  did not arise.  Again in Pulukuri Kottaya and Others v.  Emperor (3) the Privy Council treated a breach of the provisions  of section 162 of the Code as a mere irregularity curable under section 537 and as no prejudice was caused in the particular circumstances  of  that  case, the  trial  was  held  valid. Reference was made to Subramania Ayyar v. King-Emperor(1) as one  dealing with the mode of trial in which no question  of curing any irregularity arises but if there is some error or irregularity in the conduct of the trial, even though it may amount  to a breach of one or more of the provisions of  the Code,  it  was a mere irregularity and in  support  of  this reference  was made to Abdul Rahman v. The  King-Emperor(1). Several  decisions  of the High Courts were referred  to  in course  of the arguments with a view to showing what is  the true state of the law in view of the Privy Council decisions referred  to  above but we do not think that  that  question arises  in  the present case.  We are of  opinion  that  the present  is not a case under section 233 of the Code and  it is, therefore, unnecessary to consider whether the violation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

of  its  provisions amounts to an illegality  vitiating  the trial altogether (1)  28 I.A. 257. (2)  54 I.A. 96. (3) A.I.R. 1947 P.C. 67. 596 or  it  is a mere irregularity which can be  condoned  under section 537.  Section 233 embodies the general law as to the joinder  of  charges  and lays down a rule  that  for  every distinct  offence  there  should be a  separate  charge  and every: such charge should be tried separately.  There is  no doubt that the object of section 233 is to save the  accused from  being embarrassed in his defence if distinct  offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions  upon this rule contained in sections  234,  235, 236   and  239.   Having  regard  to  the  facts   and   the circumstances  of  this  case, we are of  opinion  that  the present  case falls under section 235.  It provides that  if in  one series of acts so connected together as to form  the same  transaction, more offences than one are  committed  by the  same person, he may be charged with, and tried  at  one trial  for,  every such offence.  The prosecution  story  as disclosed in the evidence clearly shows that the offence  of extortion  committed  on  the 14th September was  one  of  a series  of  acts connected with the offence  of  murder  and attempt  to murder committed on the previous day in  such  a way  as to form the same transaction.  The prosecution  case was  that when the appellant accompanied by his party  came, he caught hold of two persons (P.W. 5 and P.W. 9) at  Rajole and proceeded to Korivi.  He took them into custody  without any  rhyme or reason.  Then outside the village  seeing  the deceased,  P.W. 2, P.W. 3 and P. W. 4 he shot at them.   The deceased  fell down while the others ran away.   He  pursued them  and  brought two of them back to the  spot  where  the deceased  was lying but was yet alive.  He shot him  in  the chest  and  killed him.  Then he proceeded  to  the  village itself  where he stayed for the night.  He released P. W.  3 and P. W. 4 on the intercession of certain persons but  kept P.  W.  5 and P. W. 9 in wrongful confinement  and  released them only next morning after extorting Rs. 200 from P. W. 5. These  incidents related in the evidence leave no manner  of doubt  that from the moment the appellant started  from  the Police  Station,  he committed a series  of  acts  involving killing, injuring people, unlawfully confining others and 597 extorting money from one of them.  We are satisfied that the series  of acts attributed to the appellant  constitute  one transaction  in which the two offences which are alleged  to be distinct were committed.  The case falls squarely  within the  purview  of  section  235  of  the  Code  and  we  are, therefore, of opinion that such misjoinder was permitted  by the exception.  No question of contravention of any  express provision of the Code such as section 233 arises and in  the circumstances it is not necessary for us to consider how far the violation of any express provisions of the Code relating to  the  mode  of  a  trial  or  otherwise  constitutes   an illegality  which vitiates the trial as distinguished.  from an  irregularity which is curable under section  537.   This conclusion  in our opinion disposes of the contention  about misjoinder  of  the charges.  The fact that the  offence  of extortion  was  committed  at a different  place  and  at  a different  time  does not any the less make the act  as  one committed in the course of the same transaction. Turning  to the merits of the matter, we are  not  satisfied

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

that any prejudice was caused to the appellant in fact.   It is  not possible to say that the Court being  influenced  by the  evidence  on the question of extortion was  easily  led into the error of believing the evidence on the question  of murder.  The witnesses on the point of extortion are P.W.  5 and  P.W. 9. These are the two persons who were  taken  away from  village  Rajole and were wrongfully confined,  P.W.  5 being  released on payment of Rs. 200 and the other let  off without payment.  These two witnesses are also witnesses  to the  fact  of  murder,  in  addition  to  the  other   three witnesses, P.W. 2, P.W. 3 and P.W. 4. P.W. 5 was injured  by the  gun-shot  but survived.  The other two were  scared  on hearing  the gun-shot and ran away taking  protection  under the  babul  tree.  It is not possible to  contend  that  the Sessions  Judge  having believed the evidence  of  extortion from P.W. 5 must have been persuaded into believing that the story of murder deposed to by him must be correct, for there is  not only the evidence of P. W. 5, but three other  inde- pendent witnesses. Lastly  it  was contended that the judgment of  one  of  the agreeing Judges Manohar Pershad J. is purely                             598 mechanical and does not show that he has applied his mind to the facts of the case.  No such complaint is made about  the judgment of the other agreeing Judge Srinivasachari J. It is true  that  the learned Judge has  made  copious  quotations verbatim from the evidence of the witnesses and his  comment upon  the evidence is not as full and detailed as  might  be expected but this practice of writing judgments in this  way seems  fairly  general in Hyderabad though  we  cannot  help saying  that it is not to be commended.  It is  the  obvious duty  of  the  Court to give a summary of  the  evidence  of material witnesses and to appraise the evidence with a  view to  arriving at the conclusion whether the testimony of  the witness should-be believed.  We do not think, however,  that the  criticism that the judgment is mechanical and does  not show a proper appreciation of the evidence is well-founded. The prosecution evidence was believed by the trial Judge and the  defence  evidence to the effect that the  deceased  was killed  by  the  Military and that  the  appellant  was  not present at the time of the occurrence was disbelieved.  This finding  was accepted by both the learned agreeing  -Judges. This Court cannot interfere with the finding arrived at,  on an  appreciation  of the evidence.  We  are  satisfied  that there is no good ground for disturbing the conviction of the appellant. The only question which remains for consideration is whether the  sentence  of death is the appropriate sentence  in  the present  case.  No doubt there are no special  circumstances which  justify  the imposition of any other but  the  normal sentence for the offence of murder.  We think, however, that where the two Judges of the High Court on appeal are divided in  their  opinion as to the guilt of the  accused  and  the third  Judge  to whom reference is made agrees with  one  of them who is upholding the conviction and sentence, it  seems to  us desirable as a matter of convention though ,not as  a matter  of  strict law that ordinarily the  extreme  penalty should  not be imposed.  We accordingly,  while  maintaining the conviction of the appellant, reduce his sentence to  one of  transportation for life.  In other respects  the  appeal stands dismissed.  All the sentences will run concurrently. 599