LexHABEEB MOHAMMAD versus THE SLATE OF HYDERABAD.
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:S.C.R. SUPREME COURT REPORTS HABEEB MOHAMMAD v. THE Sl'ATE OF HYDERABAD. f MEJ-m CHAND MAHAJAN, MuKHERJEA and JAGANNADHADAS JJ. J 475 Constitution of India, art. 136-Criminal appeal-Interference -Guiding principl~$-Failure to call material eye~witness-Failure --io issue process to important defence witnesses-Using police diaries ..ar 11:orroborative evidence-Refusal to produce material documents- ·validity of trial-Interference on appeal-Criminal Procedure ·Code, 1898, ss. 162, 172, 257-Evidence Act (l of 1872), ss. 53, " 114, illustration (g). Thou&h the prosecution is not bound to call all available witnesses 1rrespect1ve ot considerations of number or reliability, witnesses essential to the unfolding of the narrative on which the prosecution is based Jnust be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. Where the case against the accused, a ,Subedar, was that he gave orders to the police to fire and the Deputy Comnissioner of Police who had accompanied the accused ·and had witnessed the occurrence was not examined by the pro- secution : Held, that the failure to examine him not only led to ·an adverse inference against the prosecution case but also cast .serious r~flection on the fairness of the trial. Adel Mohammad v. Attorney-General of Palestine (A.LR. 1945 P. C. 42) distiguished. Stephen Senivaratne v. The King (A.I.R. 1936 P.C. 289) relied on. Ram Ranjan Roy v. Emperor (I.L.R. 42 Cal. 422) referred to. Police diaries of a case under inquiry or trial can be made use _.of by a criminal court only for aiding it in such inquiry or trial. The court would be acting improperly if it uses them in its judg- ment or seeks confirmation of its opinion on the question of appre- ciation of evidence from statements contained in those diaries. Though th~ Supreme Court would not interfere under article 136 of the Constitution if there were mere mistakes on the part of . the court below of a technical character which had not occasioned ~ny failure of justice or the question was purely one of the court taking a different view of the evidence given in the case, it would interfere if in substance there has not been a fair and proper trial Where rr:ater1al eye witnesses were not examined, to disprove the prosecution case as to the motive of the accused, the court, without calling for the police diaries during· the trial, stated in the 1953 Oct. 5. 1953 Habeeb Mohammad v. The State of Hyderabad. 476 SUPREME COURT REPORTS [1954] judgment that the statements made by the witnesses before the police were the same as those made by them in the court : Held, that there was in substance no fair and proper trial and the conviction should be set aside. APPELLATE JuRISDICTION : Criminal Appeal No. 43 of 1952. Appeal by special leave granted by the Supreme Court of India on 11th May, 1951, from the Judgment and Order dated 11th December, 1950, of the Hydera- bad High Court in Criminal Appeal No. 598/6 of W50. B. f. M. Mackenna (A. A. Peerbhoy and f. B. Dadachanji, with him) for the appellant. V. Rajaram Iyer (R. Ganapathy Iyer, with him) for the respondent. 1953. October 5. The Judgment of the Court was delivered by MAHAJAN J .-This is an appeal by special leave from the judgment of the High Court of Judicature of Hyderabad upholding the conviction of the appellant by the Special Judge, Warangal, appointed under Regulation X of 1359-F., under sections 243, 248, 368, 282 and 124 of the Hyderabad Penal Code ( cor- responding to sections 302, 307, 436, 342 and 148, Indian Penal Code) and the respective sentences passed under these sections against him. The case for the prosecution which has been sub- stantially accepted by the Special Judge and by the majority of the High Court is that the appellant was in the year 1947 the Subedar of Warangal within the State of Hyderabad, that on the 9th December, 1947, he proceeded to the village of Gurtur situate within his jurisdiction at about 10 a.m. along with a number of police officials and a posse of police force ostensibly to raid the village in order to arrest certain bad characters, that when a party of villagers, 60 or 70 in number, came out to meet him in order to make re- presentations, he ordered the policemen to open fire on the unarmed and inoffensive villagers, as a result of which tailor Ven
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