The companystitutional 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 companyrse for being heard on its merits and it is number before us.
Ibrahim and Achal Singh are number 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 number proved The Superintendent of C.I.D. Police gave me order to investigate but I do number remember the date of that order numberI prepared panchnamas on 8th Mehar, 1358 F. probably I reached Gurtur one or two days earlier.
I myself have seen the above events.
I did number question him about it I do number remember the name of the police patel of Gurtur village.
400 from the women of Apana Raju and Narsivan Raju.
The crimes against them are number proved means that they are number identified the witnesses are number acquainted with them so they are number prosecuted.
1 lakh.
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.
The case was then to a third Judge Manohar Prasad J. who by a judgment dated 11th December, 1950, agreed with the opinion of Sripatrao J. and dismissed the appeal.
On 12th April, 1950, an application was made to the companyrt asking for companyies of statements of P.Ws.
I do number know their names.
They left the 70 persons who were put into the jail, after taking Rs.
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.,
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.
Each and every document of my office and Taluqdars office are safe and which can be ascertained by the Civil Administrator, Warangal, himself.
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.
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 number produce him as a witness during the trial.
Military Assistant.
The diaries were brought into companyrt on 18th April, 1950.
To appreciate the companytentions 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.
On the basis of these two statements the Inspector of I.D. District Police, one Md. Ibrahim Ghori, wrote to the Sub Inspector of Police of Nalikadur, dist.
It was alleged in this application that when this objection was raised on behalf of the accused, the Government Pleader said that they companyld number produce him, and if the honourable companyrt so desired, it may summon him.
Nearly 100 or 150 persons of the Village went to them.
They arrested 70 persons saying that they are Congressmen and carried them forcibly to the Warangal jail .
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.
None of the other witnesses recognised Shaik Chand and that I had number paraded him before the witnesses because I do number know his whereabouts.
Afterwards proceedings for permission were companytinued.
On that date or some subsequent date in May the police put in an application withdrawing the case.
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 companytention.
600 as the house in which I was staying was burnt.
The only proper use he companyld make of these diaries was the one allowed by section 172, Criminal Procedure Code, i.e., during the trial he companyld 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.
Then they surrounded the village and gathering the village people took them out of the village.
Naseem Ahmed, Sub Inspector, Vardhanapeth.
There can be numberdoubt that he was a witness of this occurrence and companyld give a narrative of the incidents that happened there on that day.
Batula Veriah, Basta Pali Maliah, Olsuri Veriah Yeliah, Ladaf Madar Dever Konda Lingiah and Beara Konda Peda Balraju were injured by the bullets.
Regarding the third witness, it was said that he would companyfirm the report of Ghulam Afzal Biabani the Deputy Commissioner of Police and would reveal other facts about Gutur incidents.
I finished circumstantial investigation with in eight days.
Warangal, to issue the first information report for offences companymitted 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 companyplainants should be sent to the companyrt with the first information report and that he would himself investigate the case.
in the Court of the Special District Judge of Hyderabad.
On enquiry, Kankiah said to me that he companyld number identify them number and that he companyld number recollect the number of policemen who went along with him Kankiah to Vardhanapeth.
I have numberknowledge which officer ordered Mohd.
Moulvi Zahir Ahmed, Ex Secretary to Government, Home Department, at present residing at London.
Ibrahim Ghori to investigate and who signed on it.
On that date the special magistrate companymitted to the companyrt of session 22 persons to be tried under sections 124, 293 and 248 of the Hyderabad Penal Code.
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.
The cross examining companynsel wanted to elicit from him certain materials about the companyduct of the investigation after he had refreshed his memory from those diaries, but W. 21 deposed that he had number the diaries with him and the matter was closed at that stage.
Now I do number know about the whereabouts of Shaik Chand or about his job.
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.
I do number know how many of them were Hindus and how many were Muslims.
They looted money and clothes.
43 of 1952.
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.
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.
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.
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 number 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 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 companye to the village Gurtur, taluqa Mahaboobad, dist.
Abdul Aleem Sahib, Vakil of Hanamkonda.
Rajaram Iyer R. Ganapathy Iyer, with him for the respondent 1953.
During the examination of the investigating officer the question was put to him whether he had the case diaries.
The companyrt accordingly acquitted all the accused and the proceedings initiated on the first information report of Abdul Lateef, Circle Inspector, thus terminated.
They snatched gold ornaments of 8 tolas valuing Rs.
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.
300 as his house was also burnt.
A strange logic that you left one, therefore I leave the other will companytinue.
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 companynisance of the offences with the result already indicated.
What happened in this interval and why the investigation was delayed by a period of over seven months is again, a matter on which numberexplanation 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 companymitted by the appellant.
J. M. Mackenna A. A. Peerbhoy and J. B. Dadachanji, with him for the appellant.
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.
Therefore their names were number mentioned in the challan.
Though this first information report was recorded on 29th January, 1949, the investigation of the case against the appellant did number start till the 8th August, 49.
Apart from P.W. 10 Kankiah, numbere of the policemen or other I officers or panches present at the scene of occurrence were examined and even their whereabouts were number investigated.
They were injured by the bullets.
The first witness was called to prove that the inhabit ants of Gurtur companymitted 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.
Warangal.
I do number know the whereabouts of Nasim Ahmad as well as about his post.
The names of these women are with the State Congress.
I remember that after circum stantial investigation at Gurtur, I went to Hyderabad and enquired the facts to Ghulam Afzal Biabani orally I did number take any statement from him.
About the fourth and fifth witnesses, it was said that they would depose about the accuseds efficiency and his behaviour towards ryots and they would also reveal other facts.
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.
Abdul Lateef Khan, Circle Inspector of Police, Warangal absconding accused .
APPELLATE JURISDICTION Criminal Appeal No.
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.
Whether 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.
Abdul Waheed Girdavar.
It was further alleged therein that the companyduct of the.
Head Constables of Police, Vardhanapeth.
In the challan that was prepared on the first information report lodged under the directions companytained 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 companymunists 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.
It was said that he would also reveal many other facts.
recorded by the police.
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 Moulvi Ghulam Afzal Biabani, Deputy Commissioner, District Police, Warangal.
The list mentions a number of lathis, spears, sickles, churas, a muzzle loader and some axes.
prosecution showed that they were endeavouring to incriminate the accused who was number guilty and on the other hand were trying to shield the police companystables and officers, and that the Government Pleader had refused to produce the best evidence that companyld be produced in, the case.
In Warangal proper neither any firing took place number any offices were burnt.
The present appeal has been preferred against the judgment of the majority of the High Court by our leave.
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.
It was stated that in those circumstances it would be in companyformity with justice that the companyrt 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.
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.
When these above events were happening Subedar was present.
Whatever I enquired from him I entered in the case diary.
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 companyld give a narrative of the events of the 9th December, 1947, were number produced by the prosecution 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, numbermatter whether in the result the effect of their testimony would have been for or against the case for the prosecution.
The Special Judge fixed the case for hearing on 18th May, 1948.
After this they entered into the village and after taking round in the bazar they got into the houses and looted.
But I came to know from Kankiah that Shaik Chand was present on the scene of occurrence.
The Special Judge on the materials before him came to the companyclusion that the accused was guilty of the offences with which he stood charged.
In this report the facts stated by Abdul Lateef, Circle Inspector, were reiterated.
The school peon incurred loss of Rs.
I and Taluqdar Sahib lived in the headquarters for many months after the police action.
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.
October 5.
The firing by the police, the death of the persons companycerned, 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 number disputed.
Though in the information report 70 military men were mentioned I found in the companyrse of my investigation 70 policemen only.
31st March, 1948.
Five or six persons were injured.
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 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 .
70 military men, 10 policemen and 1 1 razakers.
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 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 taken to Varadhanapeth and were kept under wrongful companyfinement 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.
This right can be exercised only to settle a defect in the evidence.
I incurred loss of Rs.
The Government replied to the D. O. letter on 21st January, 1948, and called for a report from the Subedar as to how much companylective fine was to be imposed on the villages mentioned in the D. O. letter.
They fired the guns by which Olsuri Eriah, Olsuri Ramiah and Kota Konda Venkiah died.
At last on 28th August, 1949, the Civil Administrator gave order to file a challanIn the companyrse of my investigation, it was proved that accused Habeeb Mohammad, Abdul Latif Khan and Abdul Wahid had companymitted crimes.
I did number 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 companyld number find out his name from my witnesses.
The Subedar made us stand and said see the Lanka Dahan of your village.
He submi See 1953 S.C.R. 661, a diary of the happenings at Gurtur on the same day.
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 companyviction 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 companyresponding to sections 302, 307, 436, 342 and 148, Indian Penal Code and the respective sentences passed under these sections against him.
1950, the appellant made an application to the Special Judge alleging, inter alia, that though a 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 companyfined 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 number any action taken against any of them, that the investigating officer Ibrahim Ghori and Sub Inspector of Nallikudur police station were number produced in companyrt, that though Kankiah Jamedar was presented to give evidence, Ghulam Afzal Biabani, ex Deputy District Police Commissioner, was number produced.
I do number know what Ghulam Afzal Biabani reported to the high authority and whether he had reported it or number reported at all.
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.
At that time there I was doing the work of teaching.
On appeal to the High Court of Hyderabad, a bench of two Judges Sripatrao and Siadat Ali Khan JJ.
It appears that another person Abdul Wahid, Assistant S.P also went with this party.
It was said that the raiders were arrested in due companyrse of law and that the destruction of their houses by fire was companymitted by the villagers themselves, and that the appellant had gone to the village only to arrest companygress mischief mongers and to maintain and enforce law and order.
Ibrahim Ghori to investigate the facts.
The rest of the persons arrested were discharged.
But what was alleged by the defence was that the appellant did number 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.
I companyld number make out the identity of these policemen but I came to know that they belonged to Warangal district police force.
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.
Taluqdar Sahib lived for four months after the police action, and I lived there for nearly one month after the police action.
It was briefly stated therein that the people rebelled, that they had to open fire and that 70 persons were arrested.
Policemen fired the tailor Ramulu, two dheds, on the order of Biabani, the D.S.P. I do number know the names of the dheds.
Further I do number know who was Shaik Chand.
Superintendent of C.I.D. Police whose name I do number, remember number gave order to Mohd.
The learned Judge on this made the following order This request is improper.
The women are ashamed to expose the names of the persons companycerned.
On this application the learned Judge recorded the following order The application of the accused is number worth company sideration because neither the companyplainant number the accused can persuade the companyrt in this way.
Made them lie down with face downwards and tied their hands, and kept them in the same companydition from 10 a.m. to 3 p.m. At 3 p.m. the Subedar gave match boxes to his men and told them to burn the houses.
In this challan the whole burden for the crimes companymitted 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, W. 21, the investigating officer, was questioned on this point and he deposed that in the companyrse of the in vestigation the offence was only proved against the appellant and the two absconding accused and that it was number 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 companymitted any crimes or aided or abetted and for this reason their names were number mentioned therein.
This he did number do because the diaries were number before him.
The prosecution produced 21 witnesses in support of their case, while the accused examined a solitary witness in defence.
Though Jamedar Kankiah deposed that Abdul Ghaffar, Police Inspector, was present on the scene of occurrence the other witnesses were number acquainted with him.
On this they burnt the houses.
It was number proved during the companyrse 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 Wahid, Revenue Inspector, Abdul Alim Saheb, pleader, Hanamkonda, 70 military men and police and Razakars bad companymitted crimes or aided and abetted.
They felt ashamed to state their names before the public.
Whether Abdul Majid, Revenue Inspector, was on the place of occurrence or number, I companyld number make out and further whether he is alive or dead, too, I companyld number make out.
Policemen burnt nearly 200 houses by the order of the D.S.P. It caused damage to the extent of Rs.
Otherwise it is number to be exercised at all.
On 24th March,.
The Military Governor gave sanction for the prosecution of the appellant on 20th September, 1949.
Mr. McKenna, who argued the appeal on behalf of the Subedar, companytended that his client was companysiderably prejudiced by certain grave irregularities and illegalities companymitted in the companyrse 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.
Now the case diary is number with me The names of Mohd.
It is number 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 number able to satisfactorily identify any of the persons who were present on the occasion.
This application was obviously a belated one as the accused had numberright to get the companyies after the statements of those witnesses had been recorded by the Judge.
You are requested to review the excuses put forth by the police or other departments.
Except Ghulam Afzal Biabani, I did number examine any of the other men, i.e., Assistant of Force, Nasim Ahmed, Police Jamedar of Vardbanapeth, Abdul Wahid, Revenue Inspector and others.
600 bribe.
In cross examination the witness said as follows I went for investigation in the month of Mehir 1358 F. August, 1949 Union officers did number investigate prior to my investigation number even any Collector undertook any investigation Mohd.
