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Abdul Subhan and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1940All46
AppellantAbdul Subhan and anr.
RespondentEmperor
Excerpt:
- - 5. in our opinion the evidence of this witness is not reliable, and especially the story that the gun which subhan was carrying was covered by his sheet. the prosecution suggestion is that punwan, accused, went to seek the help of this witness because he (the witness) is a well-known badmash and has a gun in his possession. it can be said rightly on behalf of the defence that as rehmat ullah is a man of bad character it is possible that he may himself have accepted a sum of rs. in any case, it is altogether unsafe to place reliance on the evidence of a witness of the type of rehmat ullah when we know that enmity exists between him and subhan. the important question which we are called upon to decide is whether the confession of punwan, accused, is good evidence and whether it would.....1. these are two connected appeals and can be conveniently disposed of together. abdul subhan and punwan or punnoo, accused, in appeal no. 522 were tried in the court of the learned sessions judge of bijnor for an offence contrary to sections 302/34, i.p.c. the charge against them was that they had murdered one tulshi gadaria of village barharpura. both the accused persons denied the charge and pleaded not guilty. the learned sessions judge was of opinion that the guilt of both the accused appellants had been proved to his satisfaction. he therefore convicted them both and sentenced them to transportation for life. in the other case which has given rise to criminal appeal no. 523 of 1938 abdul subhan, accused, alone was prosecuted under section 19(f), arms act. he has been held guilty by.....
Judgment:

1. These are two connected appeals and can be conveniently disposed of together. Abdul Subhan and Punwan or Punnoo, accused, in appeal No. 522 were tried in the Court of the learned Sessions Judge of Bijnor for an offence contrary to Sections 302/34, I.P.C. The charge against them was that they had murdered one Tulshi Gadaria of village Barharpura. Both the accused persons denied the charge and pleaded not guilty. The learned Sessions Judge was of opinion that the guilt of both the accused appellants had been proved to his satisfaction. He therefore convicted them both and sentenced them to transportation for life. In the other case which has given rise to Criminal Appeal No. 523 of 1938 Abdul Subhan, accused, alone was prosecuted under Section 19(f), Arms Act. He has been held guilty by the learned Sessions Judge and has been sentenced to two years rigorous imprisonment. In both the cases the convicted persons have preferred appeals against their convictions and sentences. We will first take up Criminal Appeal No. 522 of 1938. The brief facts of the case are these:

2. Tulshi, deceased, was a son of Mokha Gadaria (P. W. 1). It appears that Tulshi and Punwan, accused, cultivated some land jointly. Mt. Kewli, a married daughter of Gangu and a niece of Punwan, accused, used to visit the field held jointly by Punwan and Tulshi, and it is the prosecution case that illicit connexion sprang up between Tulshi and Mt. Kewli. She became pregnant before her gauna had been performed. It is the prosecution case that this was one of the motives for which Punwan, her father's brother, was anxious to murder Tulshi. The prosecution alleges that on the night between 28th February and 1st March 1938, Mokha, the father of Tulshi, was working at his sugarcane pressing machine in a jungle of Mauza Chhaonli which is at a distance of about one mile from the place where Mokha's sugarcane pressing machine was. His son Tulshi was also working there, and it is alleged that at about midnight Tulshi and one Kalwa (P.W. 2) left the place together for the village abadi. The father of Tulshi it appears was anxious that his son should not go alone towards the village Abadi at night time and so it is said that when Kalwa (P.W. 2) arrived there the two started together. They were taking with them a pair of bullocks. After they had covered a short distance from the pressing machine the sound of a gunshot was heard and Kalwa found that Tulshi had been hit and had fallen on the ground. He raised an alarm upon which Mokha and other persons arrived on the scene and they found Tulshi lying dead. There is a police station in Barharpura, the village where Tulshi and others resided. The father of Tulshi went to the police station at 4 A.M. on the morning of 1st March 1938 and made his first report which is typed at pp. 2 and 3. After reciting various causes of enmity existing between him and Punwan and his relations, the father of Tulshi stated that he suspected five persons. One of them was Punwan, accused. The officer in charge of the police station, Thakur Kaushal Singh started investigation of the case. It is alleged that Punwan, accused, was arrested on 6th March 1938. Later on, on the same date, a search was made at a field of Subhan and the prosecution story is that three guns were recovered from this field. It is said that one of them which was a double-barrelled gun showed that it had been recently fired, while in the other barrel of the same gun shots and powder were found to be loaded. The two arrested persons were sent to Bijnor and were produced before a Magistrate for making statements tinder Section 164, Criminal P.C. It would appear that on that date the Magistrate was busy otherwise and then he was busy in connexion with Moharram arrangements. The two accused persons were placed eventually before him on 14th March 1938. Subhan, accused, declined to make any statement, but Punwan made a statement which is typed at pp. 9 to 11. The two accused were sent up for trial. Punwan, accused, retracted his confession before the committing Magistrate. The learned Sessions Judge who tried the case was of opinion that the evidence produced was sufficient for the conviction of the two accused on a charge of murder. The medical evidence produced in the case proves that Tulshi, deceased, was shot dead by some one.

3. The first witness examined by the prosecution was Mokha (P.W. l). His evidence shows that it was suspected that his son Tulshi had contracted a liaison with Mt. Kewli. It is also proved by the evidence that Mt. Kewli became pregnant. The prosecution suggests that this was a motive why Punwan accused wished to murder Tulshi. There are no eye-witnesses to the commission of the crime and, as we have already pointed out in the first report, the father of Tulshi suspected Punwan and other relations of Gangu, the father of the girl. The prosecution examined one Rehmat Ullah, (P.W. 8). The story related by this witness was this. Rehmat Ullah admits that he is a badmash and is under police surveillance. His statement is that about two months before the murder of Tulshi, Punnoo, accused, went to him at about 9 or 10 p. M. and made an offer of Rs. 50 to him if he (the witness) would agree to kill Tulshi. It is suggested that this man Rehmat Ullah had a gun in his possession for which he had no license and the fact was known to the village. Rehmat Ullah says that when Punnoo, accused, made the above proposal to him he declined to accede to it altogether. He says that he told Punnoo that he had never done such a thing and that he was under police surveillance. Upon this the witness says that Punnoo asked him whether anybody else possessed a gun and then the witness told him that there were several license holders. The evidence of the witness is that Punnoo made further inquiries and wanted to know whether he could suggest the name of anyone who had a gun without a license and that the witness suggested the name of Subhan, accused. The prosecution alleges that Subhan was approached by Punwan and that he (Subhan) agreed to the proposal about the murder of Tulshi and that object ultimately was carried out by Subhan as desired by Punwan.

4. The first question which we propose to consider in this case is whether the prosecution evidence makes out a clear case against Punwan, accused. The first piece of evidence on which the prosecution has relied is the retracted confession of Punwan. Then there was the evidence of Rehmat Ullah (P.W. 8) to connect the accused Punwan with Subhan, accused. Two other witnesses were examined and they are Dalu (P.W. 4) and Harru (P.W. 5). Dalu (P.W. 4) stated in his evidence that at about midnight when he was in his field he heard a shot fired and then he noticed a man running towards the north. The witness challenged him and thereupon the man replied and ordered him to keep quiet (khamosh). The evidence of the witness is that he recognized by the voice that it was Subhan, accused. According to him, Subhan passed by him at a distance of about 20 paces. Immediately after the accused had passed, the witness went to the place where Tulshi was lying dead. The learned Sessions Judge has declined to place any reliance on the evidence of this witness. The police did not examine this witness' till: 5th March 1938 and the learned Judge has rightly remarked that if there had been any truth in the statement of the witness, probabilities are that he would have come out with his story before the police soon after the commission of the crime. Next, we come to the statement of Harru (P.W. 5). He deposes that on the evening preceding the murder at about sunset time he was returning from the jungle to his house and on his way he saw Punnoo and Subhan, accused, fording a stream. According to the evidence of the witness, Punnoo, accused, had a lathi with him, while Subhan had something in his hand and was covering it with a chadar (sheet). He deposed that next morning he heard about the murder of Tulshi and he asks us to believe him that he told his mohalla people that he had seen Punnoo and Subhan in the previous evening as mentioned above. The evidence of this witness was recorded by the Sub-Inspector after three or four days. We have considered the statement made by this man and we find ourselves unable to agree with the learned Sessions Judge about his estimation of the statement of this man.

5. In our opinion the evidence of this witness is not reliable, and especially the story that the gun which Subhan was carrying was covered by his sheet. If there had been a conspiracy between Subhan, accused, and Punwan, accused, to commit a murder, it is not likely that they would be going about with a gun in their possession in such an open manner, and it further appears to us that if there had been any truth in the statement made by this witness, he would have immediately stated to the police or to the complainant that he had seen Punwan and Subhan, accused, going together. The next witness on whose evidence the prosecution placed a very great reliance is Rehmat Ullah, (P.W. 8). We have already mentioned briefly what the story of this witness is. He has stated that Punnoo, accused, approached him in the first instance with a proposal for the murder of Tulshi. The prosecution suggestion is that Punwan, accused, went to seek the help of this witness because he (the witness) is a well-known badmash and has a gun in his possession. The witness declined to the proposal of Punwan and eventually the witness, when asked by Punwan, suggested the name of Subhan, accused, as one of the persons who might be of help to Punwan, accused. We find it very difficult to place reliance on the statement of Rehmat Ullah. In the first place, we have to remember that even according to the case of the prosecution he is a rogue and a badmash. Then we further find that about five years back there was a criminal case between him and Subhan. It appears that Subhan had charged the witness with having stolen a gun from his possession, and in that case Rehmat Ullah was convicted. The feelings between Rehmat Ullah and Subhan must therefore have been very much strained and in these circumstances we find that it is difficult to believe that Rehmat Ullah would have suggested the name of his enemy to Punwan. It can be said rightly on behalf of the defence that as Rehmat Ullah is a man of bad character it is possible that he may himself have accepted a sum of Rs. 50 which Punwan was prepared to pay if Tulshi was murdered. In any case, it is altogether unsafe to place reliance on the evidence of a witness of the type of Rehmat Ullah when we know that enmity exists between him and Subhan. Another witness was one Ishri (P.W. 9). His evidence was that on one occasion he had gone to the house of Rehmat Ullah at about 10 P.M. and had seen Punnoo, accused, sitting there. This is usual padding, and we are not prepared to place reliance on a flimsy evidence of this type.

6. There remains the retracted confession of Punwan, accused. The important question which we are called upon to decide is whether the confession of Punwan, accused, is good evidence and whether it would be safe to convict a person on the basis of a retracted confession without any corroboration whatsoever. It may be stated that in the confession Punwan, accused, admits that he was a party to the commission of the murder of Tulshi. He stated that Tulshi was joint with him in cultivating a piece of land and that his (Punwan's) niece used to go to that joint field. He further stated that an illicit connexion sprang up between his niece Mt. Kewli and Tulshi and that the girl became pregnant. Then the accused goes on to say matters connected with Kewli's husband's home, and it is not necessary for us to make any reference to them. Punwan stated that his sister-in-law, the wife of Gangu, said that a grave wrong had been done, but he asked her to bear it patiently. She made up her mind to wreak vengeance on Tulshi. Punwan says that he was on the look out for an opportunity to commit the murder. Then he states that he went to see Rehmat Ullah of his village, because the latter had been convicted in a case in connexion with a gun. The statement of Punwan is that Rehmat Ullah refused to kill Tulshi and suggested that he (Punwan) should see Subhan. Punwan says that he went to Subhan one day. He says that Subhan suspected him as a spy from the police and so for some time he put him off, but eventually one day Subhan brought a gun from his field at sunset time. Then Subhan and Punwan both started towards the place where the father of Tulshi was pressing his sugarcane. Punwan says that he accompanied Subhan and Subhan stood at a place from where he could not be seen. After some time a gunshot was heard. The statement of Punwan in his confession is that when an alarm was raised he also went to see the dead body of Tulshi. He says that the idea in his mind was that if he did this no suspicion would be raised against him. In the concluding portion of his confession Punwan states:

The Sub-Inspector arrested me after sending the dead body. But I did not tell anything to him for three days. On the fourth day, Rehmat Ullah related to the Sub-Inspector the talk that had taken place between him and myself and said that he suspected me of having committed the murder. The police exerted pressure on me and I then told them all what I have stated above. They took me to Subhan's field and arrested him there. They recovered two guns which had been concealed in the scarecrow of his field. Subhan gave another gun from his field.

7. We have already pointed out that the prosecution case is that Punwan, accused was arrested by the investigating officer on 6th March 1938. The statement of Punwan in his retracted confession is however different. According to him, he was arrested on 1st March 1938. When these appeals came up before us for hearing we thought it necessary to accede to a request made by learned Counsel for the appellants. He told us that his clients had received information before the case was tried in the Court of Session that one police constable Himayat Ullah could give evidence which would be favourable to the appellants. Learned counsel further told us that according to his information this constable had made a statement in some kind of inquiry which would be of great help to his clients and would demolish the prosecution story, and in these circumstances we directed that Himayat Ullah, constable, should appear before us. We also directed that the investigating officer and the Circle Inspector should also be present, because we thought that it may be necessary for us to examine them. Yesterday when the hearing of the appeals commenced before us we examined the investigating officer as well as Himayat Ullah, constable, whom learned Counsel for the appellants produced as his witness. We are of opinion that the statement made by Punwan, accused, in his confession to the effect that he was apprehended on 1st March 1938 is very probably true. The crime had been committed on the night between 28th February and 1st March and the evidence produced in the case shows that on 1st March the Sub-Inspector sent the dead body for post mortem examination and Punnu says that he was arrested on that very date. The investigating officer in his statement before us has admitted that he had examined Punnu on 1st March 1938. According to his version Punnu, accused, was kept under surveillance but was not actually arrested till 6th March 1938. The investigating officer could not convince us from the evidence on the record that he had not arrested Punnu, accused, till 6th March 1938.

8. The Sub-Inspector admitted in his statement that he could not say whether the diary of 5th March was sent to Sadar on the 6th and further whether the diary relating to the 6th was sent to Sadar on the 7th as they should have been under the rules. The statement made by the investigating officer in this case led us to think that very probably he is trying to hide the real facts of the case so far as the date on which Punnu, accused, was arrested is concerned. It has to be borne in mind that Punnu's name was mentioned in the first report as one of the suspected persons. The investigating officer has admitted that on 1st March 1938 he had some talk with Punnu. He is not in a position to tell us the dates on which the diaries of the 5th and 6th were sent to Sadar. In his diaries nowhere is there any mention that Punnu, accused, was under police surveillance from 1st to 6th. It was after the search made on 6th March that there is reference about the arrest of Punnu. No explanation has been given by the Sub-Inspector before us as to why the fact of Punnu being under police surveillance was not mentioned by him in the police diary if, as a matter of fact, he was under police surveillance. We are under these circumstances of opinion that the Sub-Inspector had really arrested Punnu on 1st March 1938, but as it did not suit him he made no mention of this very important fact in the police papers.

9. The position therefore, so far as Punnu is concerned, stands thus. He was arrested on 1st March 1938, but for some reason the Sub-Inspector did not show in the police diary that he had made this arrest. We are not concerned with the reasons which led the Sub-Inspector to adopt this course. We however find that between 1st and 6th March 1938 Punnu was under the thumb of the Sub-Inspector. On 6th March a show was made about his being arrested and even then he was not sent to Sadar till 8th March 1938. He remained in jail till the 14th when he actually made his confession. We find that this confession is recorded under circumstances which throw a great deal of suspicion. Why should Punnu, accused, have been kept by the Sub-Inspector under his 'nigrani' if he had been apprehended on 1st March 1938 as stated by Punnu himself. The action of the Sub-Inspector in keeping this man under 'nigrani' for a number of days goes to show that the confession was recorded after breach of rules by the Sub-Inspector. If Punnu, accused, had been sent up to headquarters for production before a Magistrate within 24 hours of his arrest, and if then he had made a confession, it might have been argued on behalf of the prosecution that there was nothing suspicious about the circumstances in which the confession was made. But when we find that the man who makes a confession has been kept in police custody in defiance of the rules on the point for a number of days, then we are entitled to ask the prosecution to explain why the irregularities were committed. In the present case the Sub-Inspector has not been able to offer any reasonable explanation as to why he should have kept Punnu in the village for a number of days. The learned Deputy Government Advocate in his argument stated that it was possible that Punnu was not telling the truth when he stated in his confession that he had been apprehended on 1st March 1938. He suggested that this invention may be the result of his stay in jail for a number of days. We are, however, not prepared to accept the suggestion. There cannot be any doubt that Punnu was in jail for a number of days and he had more than ample opportunity to think over his position. If he wanted he could have told the Magistrate that he did not wish to make any confession at all.

10. But it appears from the record that Punnu did appear before a Magistrate and did make a confession thoroughly implicating himself in the confession of murder and we are not prepared to hold that there could be any motive for him to wrongly state in his statement that the Sub-Inspector arrested him on the date on which the dead body of Tulshi was sent for postmortem examination to headquarters, that is to say, on 1st March 1938. Another point in connexion with this confession may now be referred to and that is the statement of Punnu which is to the effect that he made the confession under threat. The words used by him are 'police ne debao diya aur phir main ne police se sub upar ka hal kah diya.' When we find a statement of this type in the confession itself it must go against the prosecution. The confession made by an accused person is a document which should be taken into consideration with the utmost possible care. It is not right for the Court to put reliance on a portion of the statement made by the accused person which would implicate him in the commission of a crime and to disregard another portion simply because it would go against the prosecution story. It is possible that the accused Punnu may have correctly stated that he made a confession under pressure. It is also equally possible that he may have stated that point in order to weaken the effect of the admission of his guilt. In the present case if Punnu wished it was open to him not to have made any statement at all, but we find that he did make one implicating himself. We do not think that the prosecution is justified in asking us to hold that the statement as regards the question of pressure was introduced by Punnu merely to weaken the prosecution case. After considering the confession made by Punnu we have arrived at the conclusion that it would not be safe to base his conviction on it and more specially in view of the facts referred to above. There is no evidence which can be said to corroborate the statement made by the accused in his confession as regards his guilt. For the above reasons we hold that the charge against Punnu, accused, is not made out and therefore his appeal must be allowed.

11. Now we proceed to consider the case as against Subhan accused. (After considering the evidence, his Lordship held that all that the prosecution could say was that it was proved that Subhan, accused, delivered three guns to the police but that fact by itself did not go to show the complicity of Subhan in the commission of murder and that so far as the charge of murder was concerned the case must fail as against Subhan, accused, as well. The judgment then proceeded.) Coming to the appeal of Subhan against his conviction under Sec. 19(f), Arms Act, we may remark that the whole case depends on the evidence produced in the case as regards the recovery of guns and ammunition from this accused. As we have believed the prosecution evidence, we have no doubt that the case against Subhan, accused is proved and, in our opinion, therefore his conviction under Section 19(f), Arms Act, must be affirmed. Before we conclude our judgment we would like to make a few observations in connexion with one aspect of the case which in our opinion is of the greatest possible importance to the administration of the criminal justice in the country. According to the prosecution case, as put before the Court, Punnu and Subhan, accused, were arrested on 6th March 1938. Punnu made a confession and at a search made in the field of Subhan, he (Subhan) produced before the police three guns and that one of these guns had been used in shooting Tulshi deceased. The case was sent up for trial by the police on the assumption that it represented the true state of affairs according to the prosecution. It appears however that at some subsequent stage, the district authorities had some reason to suspect the conduct of the investigating officer in connexion with this case. The investigating officer in his deposition says:.I am under suspension on account of some report made against me by M. Sadar-ul-Islam, Circle Inspector, to harm me and benefit Subhan, accused....

12. Now, it is possible that at some stage of the case, the prosecution may have come to know of some further evidence which may possibly throw doubt on the prosecution story which had been put forward as a result of the inquiry made by the investigating officer. When such a situation arises then, the most vital question for consideration is as to what is the duty of the prosecution? We are of opinion that the proper and fair course is to place the fresh evidence or information before the Court which has to adjudicate the question of guilt or innocence of the accused persons. It is a well established rule of law that it is the bounden duty of the prosecution to place before the trial Court all evidence relating to the case which is at its disposal and then invite a judicial decision. Prosecution takes a very grave risk if it takes upon itself the duty of withholding evidence relating to the crime. It is not the function of the prosecution to decide which portion of the evidence is true and which portion is false. This does not mean that where conflicting evidence is produced during an enquiry the prosecution cannot elect to rely on the statements of one set. That power is undoubtedly there. But the duty of the prosecution is that the trial Judge must be informed about the opposite version and then it will be for the Judge to decide whether he should hear the evidence or not. In other words, it is the duty of the prosecution to let the Judge know of the entire evidence at its disposal. This course is adopted in large majority of cases. The police sends up a list containing the names of persons who can give evidence about the crime. The statement shows which persons prosecution proposes to cite as witnesses and the Court also is informed the names of the witnesses whom the prosecution does not propose to examine. In such cases, it is for the Judge to decide as to whether or not he would examine other witnesses whom the prosecution does not propose to examine. In the present case, it would appear that there was some difference of opinion as regards the investigation between the investigating officer and his higher officer, the Circle Inspector. This is a matter about which we are not called upon to express any opinion and we have deliberately retrained from making any remark about it one way or the other.

13. It would appear that in the present case, owing to some subsequent enquiry by higher officers of the investigating officer he was placed under suspension. The prosecution did not disclose its case as regards this matter. The defence version of what happened may be gathered from the subsequent developments. Before the trial of the case started in the Court of Session, one of the accused made an application to the committing Magistrate praying that one Himayatullah constable who was posted at the police station of Barahapura, at the time when this case was investigated be summoned as a defence witness. A summons was sent to the witness but it could not be served as he had been transferred to some other police station. In the Court of Session, another attempt was made by the accused but the learned Sessions Judge did not accede to it on the ground that the application was made somewhat late. When we accepted the defence suggestion to summon Himayatullah constable, we also directed that the investigating officer as well as the Circle Inspector should be summoned because we thought that we may have to examine them. We did not examine the Circle Inspector as in our opinion it was not necessary to do so. The statement which he might have made before us would be the result of an enquiry which he as superior officer of the investigating officer had made His opinion would not be any evidence unless the witnesses examined by him had been produced in the trial of the case. It would be seen from the statements made by Himayatullah constable that the suggestion of the defence was that the story of search in the field of Subhan, accused, as put forward by the prosecution at the trial, was totally false. According to that story, the guns were handed over to the police not by Subhan, accused, but by one Rahamatullah, a witness in the case, and that a false case was invented by the investigating officer in broad daylight in the presence of a large number of police constables and other persons. Now, it is possible that the case as set up by the prosecution was a true case and that the defence version was altogether false.

14. It is equally possible that the prosecution case on the point was fabricated and that the defence version is a true one. The matter was one which required judicial determination by a competent Court. The prosecution elected to go on with the case as sent by the investigating officer. It was open to the defence to prove by producing evidence to convince the Court that the prosecution version of the affair was not a true one. In this case however the prosecution authorities as a result of the inquiry made by higher officer or officers elected to suspend the investigating officer. It was then that a grave situation arose. The prosecution had started on the assumption that the search made by the investigating officer was true. And for that reason they cited witnesses to support that case. But before the trial could take place, they received some information which led them to suspend the investigating officer. In other words, before the trial started, the prosecution by its conduct gave it out that it had its suspicion about the story which was going to be placed in the Court at the trial. To us it appears that in a case of this kind it was the clear duty of the prosecution to produce at the trial not only the witnesses who supported the version of the investigating officer but also the witnesses on whose evidence the prosecution authorities passed an order for the suspension of the investigating officer. It would be for the trial Court to decide as to which of the two versions was true. The course which was adopted on the prosecution side was unfair and unjust all round. It is unjust to the investigating officer because on one side the prosecution accepts his story and puts it before the Court for judicial determination and on the other it takes an action which goes to suggest that it has its own doubt about the story which the Court is asked to believe. It is unfair to the trial Court. The prosecution places before it one version of the affair. Before the case has been placed before the Judge the prosecution, as a result of some kind of inquiry made by it, come to the conclusion that the version put before the Court is possibly not true.

15. But the prosecution produces only one side of the investigation and withholds evidence which has come in its possession as a result of the subsequent inquiry. The prosecution suspects the bona fides of the case as put before the Court by suspending the investigating officer and yet do not produce witnesses examined subsequently. In our opinion, such a course is most unfair. The prosecution invites a decision of the Court on evidence about the correctness of which it has its own doubts. The person most vitally affected in the case is the accused. It is his right that all evidence in connexion with the crime which is at the disposal of the prosecution should be placed before the Court which is called upon to decide the question of his guilt. He is entitled to take full advantage of all points which might throw doubt on the prosecution story. In a case like the one before us the accused can plead in his defence on this line. He can say to the Court: 'It is true that some witnesses have come before you who say that I handed over the guns to the police. But I tell you that the police held an enquiry later and then discovered that probably the evidence of the witnesses produced before the Court was not correct and that is why they have suspended the investigating officer. Please ask the prosecution to produce those witnesses and they will be able to show to your satisfaction that the story of the witnesses examined before is not true Or is doubtful and that the story of the witnesses examined by the police subsequently but before the commencement of my trial is true.'

16. Such a request in our opinion would be most reasonable and proper. In a case of this kind it is neither right nor proper for the prosecution to withhold evidence taken by the police at a later stage of the case but before the trial commenced. It is quite possible that if such evidence had been produced before the Court at the trial, the Judge might have believed it and then the result would have been in favour of the accused persons. We wish to make it clear that our remarks are applicable to those cases only in which the prosecution has taken a step, as in this case, which gives rise to a suspicion that the prosecution itself was not quite certain about the correctness of the story before the Court. If the prosecution had taken up a position as indicated by us then it would have been fair to all concerned. It is significant that the authorities suspended the investigating officer and yet no action was taken against Himayatullah, constable. The action taken by the prosecution, in our opinion, was unfair to the investigating officer, to the Circle Inspector and to the accused. We hope that in future in a case of this type, the prosecution would consider it their duty to place before the Court all materials whether they support the prosecution case as investigated by the investigating officer or the case as disclosed as a result of the enquiry made by a higher officer. It is only just and fair that such a course should be adopted for the benefit of the prosecution as well as the accused persons. We think that if this is done, there will be no cause of complaint and the advantage will be that the decision of the Court on both aspects of the case will be based on the entire evidence and not on one sided version as was the case in the present trial. We had before us one version of the case put forward by the prosecution. But no attempt was made to place before the Court the witnesses who may have made statements on the basis of which the prosecution thought it necessary to suspend the investigating officer. We cannot say what the result of the case might have been if that evidence had also been placed before us.

17. We also wish to bring to the notice of the police authorities one more point which we have noticed in this case and about Which we wish to express our emphatic disapproval. The investigating officer in his deposition stated:. I am under suspension on account of some report made against me by M. Saiyed Sadar-ul-Islam, Circle Inspector, to harm me and benefit Subhan, accused.

18. Rehmatullah, one of the prosecution witnesses, in his deposition at page 37 stated:

After about a month of my giving the statement to the Sub-Inspector of Badhapura, the Circle Inspector of Nagina called me at his residence in Nagina, abused me by calling names to my mother, sister and others and asked why I being a Mahomedan had stated to the Sub-Inspector against Subhan, another Mahomedan, and threatened me to do his worst against me....

19. Ishwari, P.W. 9, stated:

About 10 or 12 days ago, the Circle Inspector called me at the residence of the new Sub-Inspector and in his presence he abused me....

20. The police officers should understand that they are public servants and it is most objectionable for them to wash their dirty linen before the public in a judicial trial. In our opinion it was highly improper for the investigating officer to make such a serious charge against his superior officer who was not a witness in the case and who had therefore no opportunity to rebut the statement of the investigating officer. We further feel satisfied that the statements made by Rehmatullah and Ishwari were introduced in the case on this point at the instance of the investigating officer. It is not easy to understand why the learned Government Pleader who was in charge of the prosecution put such questions to the witnesses. They had nothing to do with the case proper.

21. In our opinion, the learned Sessions Judge would have been well advised if he had refused to permit such evidence to come on the record. But if for some reasons, which is not apparent to us, he thought such evidence was necessary, then, it would have been better if he had examined the Circle Inspector under the provisions of Section 540, Criminal P.C. In our opinion, the investigating officer was responsible for the introduction of evidence of this nature with a view to show that the order of his suspension was not correct. He should not have been permitted to do so in a trial where it was not at all necessary to go into this question. Here, again, we may say that all this could have been avoided if the prosecution had put before the Court the witnesses who had been examined by the higher officer of the investigating officer at a later stage. The question, if that evidence had been produced, would have been which set was telling the truth and the question about the enmity between the two officers which was wholly irrelevant to the case would not have arisen at all. It will be an evil thing for the administration of criminal justice if police officers are permitted to raise communal questions with a view to serve their own purposes. The only pertinent point for consideration in a criminal trial is to decide the question of guilt or innocence of the accused. That matter has to be decided with reference to the evidence produced in the case and no one connected with the prosecution should be permitted to introduce into the case their personal differences which might go to throw wholly unnecessary difficulties in the case.

22. For the reasons given above we allow the appeals of Abdul Subhan and Punwan in Criminal Case No. 522 of 1938, set aside their convictions and sentences under Section 302, I.P.C., and acquit them. So far as the appeal of Abdul Subhan in Case No. 523 of 1938 is concerned it is dismissed and his conviction and sentence under Section 19(f), Arms Act, are confirmed. Punwan, appellant, shall be set at liberty unless required in connexion with some other charge.


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