In the Andhra High Court Equivalent Citation: AIR 1963 AP 314, 1963CriLJ 121 Appellants Sharaf Shah Khan & Ors. Respondent State of Andhra Pradesh Decided on 16th March, 1961 Bench Justice Krishna Rao, Justice Munikanniah
Background of the Case
In total, 28 accused persons were tried by the Sessions Judge, Hyderabad and Secunderabad, on a charge under § 400 of Indian Penal Code, 1860, (I.P.C). There were allegations on the gang that they have committed dacoities in the districts Medak, Hyderabad, Mahaboobnagar, Karimnagar, and Raichur between July, 1953 to October, 1954.
The learned Sessions Judge acquitted 10 out of 28 accused and convicted 18 of them, some under § 395, and remaining under § 400 of I.P.C. For the accused convicted under § 400 of I.P.C. and were sentenced to imprisonment of life and the remaining accused were convicted under § 395 of I.P.C. for 7 years with a fine of Rs. 50 each.
Aggrieved by the learned Sessions Judge of Hyderabad and Secundrabad, 18 accused who were convicted for an offence filed an appeal to the High Court of Andhra.
Statute and provisions involved
- Sections 395 and 400 of I.P.C.
- Section 162, 164, and 173 of Criminal Procedure Code (Cr. P.C.)
1. Whether trial court judge was right in jettisoning the entire evidence of the approver as unworthy of credit or not?
2. Whether the trial court was right in accepting direct witness identification of the accused in the dock or not?
In June, 1953 Balooch Khan (Accused 1) conspired with some other accused to form a gang for committing dacoities in the nearby villages. The approver Amjad joined the gang in the same month only, while other accuseds joined on subsequent occasions. The gang used to operate in villages of Hyderabad armed with lethal weapons and raid at night usually to get cash, gold, and silver ornaments.
After six consecutive dacoities, an inspector of C.I.D. crime branch was able to detect the existence of this gang and in August, 1954 he arrested 14th Accused and then approver subsequently on 31-08-1954. He was able to recover many properties concerned in dacoities from their possession.
A charge sheet was drawn against them on 16-08-1956 and trail was started in the session’s court of Hyderabad. As a result 18 among 28 were convicted either under § 395 or 400 of I.P.C. So, aggrieved by the decision of subordinate court an appeal was filed at the Honorable High Court of Andhra.
Contentions of both the parties
It was strongly contended by the appellants that an erroneous view of law was taken by police authorities during the proceedings in the subordinate court. The appellants were denied of their right conferred for the cross examination of the approver.
It was also argued that the concerned authorities told the appellants that no statements of the approver have been recorded, but this fact was totally malafide and the statements were in fact recorded. It was also contended that no evidence affecting the party is admissible until adequate opportunity of defense is provided to the opposite party, and the current proceedings are against the general principles of law.
It was contended by the respondents that it is too late for the accused to put forward the contention of not providing copies of the approver’s statement and they must have urged this before in the trial court. It cannot be treated as a ground for filling of an appeal and in case they think it as prejudice they must be sent back to the trial court for cross-examination.
It was also argued by the learned public prosecutor of the respondent that they were provided during the trial with the statements of approver after tendering pardon and that were not materially different from the records of investigation.
It was held by the High Court of Andhra that accused 1 and 24 are hard core dacoites and were sentenced under I.P.C. was confirmed with dismissing their appeal. The appeal of accused 3, 6, 7, 11, 13, 18, 19, 21, and 23 were acquitted and their appeal was allowed.
It was held that only presence of sten-guns and khakhi dress cannot show the modus operandi of the concerned gang, as all the things are easily available in Hyderabad and other gangs could also take unfair advantage of it. So, unless justifiable evidence is not discovered, conviction merely on the basis of dress code and weapons cannot be made.
Concepts Highlighted in the Case
In the present case it was highlighted that evidence on the basis of which conviction is made should be sound enough and must be in such a manner that identity of the concerned gang or accused could be easily established. Suspicion or probable use of particular materials cannot be ground of conviction unless other corroborative evidences are accompanied with it.
It can be concluded that High Court of Andhra Pradesh was totally justified in acquitting the remaining accused as the material on record was not enough to hold the sentence passed by the learned judge of subordinate court. It was established that all the dacoity in the region cannot be considered as the work of same gang as there was no justifiable evidence with prosecution, and mere suspicion cannot be a ground for an offence
Edited by Pragash Boopal
Approved & Published – Sakshi Raje