# STATE OF U.P v. IFTIKHAR KHAN & ORS - **Citation:** [1973] 3 S.C.R. 328 - **Court:** Supreme Court of India - **Decided:** 1973-01-15 - **Bench:** A. Alagir!Swami, I. D. Dua, C. A. Vaidialingam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-iftikhar-khan-ors-5818 - **Pages:** 20 ## Headnote Constitution of India, 1950, Art. 136-Appeal against acqw'rt~l by .-special leave-Power of the Supreme Court. Indian Penal Code (Act 45 of 1860), ss. 34Criminal law-Practice and Procedure-Duty examine all wi'tntsses. Scope of. of Prosecution I{) Sentence-Murder-When accused may be sentenced to imprisonmen for life. On the day the deceased was murdered. the four accused-two of whom were bitterly inimical to the deceased, the other two beilng their .close associates came k>gether in a body to the shop of deceased. Two of the accused, who had pistols, shot at the deceased. The other two had lathis. No overtact was attributed to them, but there was nothing to suggest that they did not know that their associates had the pisk>ls. After the shooting, all the four accused ran away together when an alarm was raised. Two brothers of the deceased, were eye witnesses •to the occurrence and ac'cording to them there were three other persons who witnessed the occurrence. Tilose three peI"SCllns however filed affidavits in the Committing Court that they had seen notliing and hence they we're not examined as witnesses for the prosecution. According to one of the eye-witnesses the affidavits were false aind those persons filed them because they were afraid of the accused. One of the accused pleaded alibi and examined defence wit:aesses, but that evidence did not rule out the possibility of the particular accused being present at the sceno of occurrence, and in fact did not crea.te 911>y reasonable doubt in favour of that accused. The trial eoort . accepted the evidence of the two eye witnesses. The two accused who took part in the shooting were convicted under s. 302, I. P. C. and sentenced to death. The other two were convicted under ss. 302 and 34, I.P.C. and were se:ntenced to imprisonment for life. The High Court dealing with the matter in appeal as well as under s. 374, Cr. P.C., rejected the evidence of the two eye witnesses characterising them as partisan witnesses. Allowing the appeal to this Court, HELD : (I) The approach of the High Court t<> the evidence of the eye witnesses was erroneous. [335CJ (a) The High Court did not give a specific finding o.n the plioa ot aUhi of the coneemed accused. [337D-EJ A B c D E F G (b) It did not consider whether there were any discrepancies in the H evidence of the two eye-witnesses, and whether their evidence sounded true and genui1ne, but rejected the evidence merely on the ground that ~ were brothers of the ~ceased and hence were partisan or interested witnesses. [337E-G] ..., ' A B c D E F U.P. STATE v. IFTIKAR KHAN (Vaidialingam, J.) 329 (c) It assumed that the evidence of one of them was not acceptable, and therefore the evidence of the other also could not be accepted because the witnesses were brothers. [336HJ (2) J,n appeals against acquittal by special leave under Art. 136, this Court has power to interfere with findings of fact, no distinction being made between judgments of acquittal and conviction, but thi• Court will not gether in a body to the shop of deceased. Two of the accused, who had pistols, shot at the deceased. The other two had lathis. No overtact was attributed to them, but there was nothing to suggest that they did not know that their associates had the pisk>ls. After the shooting, all the four accused ran away together when an alarm was raised. Two brothers of the deceased, were eye witnesses •to the occurrence and ac'cording to them there were three other persons who witnessed the occurrence. Tilose three peI"SCllns however filed affidavits in the Committing Court that they had seen notliing and hence they we're not examined as witnesses for the prosecution. According to one of the eye-witnesses the affidavits were false aind those persons filed them because they were afraid of the accused. One of the accused pleaded alibi and examined defence wit:aesses, but that evidence did not rule out the possibility of the particular accused being present at the sceno of occurrence, and in fact did not crea.te 911>y reasonable doubt in favour of that accused. The trial eoort . accepted the evidence of the two eye witnesses. The two accused who took part in the shooting were convicted under s. 302, I. P. C. and sentenced to death. The other two were convicted under ss. 302 and 34, I.P.C. and were se:ntenced to imprisonment for life. The High Court dealing with the matter in appeal as well as under s. 374, Cr. P.C., rejected the evidence of the two eye witnesses characterising them as partisan witnesses. Allowing the appeal to this Court, HELD : (I) The approach of the High Court t<> the evidence of the eye witnesses was erroneous. [335CJ (a) The High Court did not give a specific finding o.n the plioa ot aUhi of the coneemed accused. [337D-EJ A B c D E F G (b) It did not consider whether there were any discrepancies in the H evidence of the two eye-witnesses, and whether their evidence sounded true and genui1ne, but rejected the evidence merely on the ground that ~ were brothers of the ~ceased and hence were partisan or interested witnesses. [337E-G] ..., ' A B c D E F U.P. STATE v. IFTIKAR KHAN (Vaidialingam, J.) 329 (c) It assumed that the evidence of one of them was not acceptable, and therefore the evidence of the other also could not be accepted because the witnesses were brothers. [336HJ (2) J,n appeals against acquittal by special leave under Art. 136, this Court has power to interfere with findings of fact, no distinction being made between judgments of acquittal and conviction, but thi• Court will not ee of death was passed and in between, there was an acquittal by the High Court, interests of justice would be served by sentencing the accused to impri8 sonment for life. [347A-Cl CRIMI'>AL APPELLATE JURISDICTION : Cr. Appeal No. 252 of 1969. Appeal by special leave from the judgment and order dated 8th May 1969 of the Allahabad High Court in Criminal Appeal c No. 199 of 1969. 0. P. Rand, for the appellant. Vimal Dave, for respondents Nos. 1 & 3. C. B. Agarwa/a, for respondent No. 4. The Judgment of the Court was delivered by VAIDIALINGAM, J.-This appeal, by special leave, by the State of U.P. is directed against the judgment and order dated 8-5-1969 in Criminal Appeal No. 199 of 1969 (Referred No. 21 of 1969) allowing the appeal of the four accused, respondents herein. aphop and was reading 'Jang Nama'. His brothers, P.Ws one and two, along with one Laddan Khan were also sitting near Sikander Khan listening to the reading of the epic. Respondents one and two armed with country made pistols and respondents three and four armed with lathis came in a body to the place where. Sikander Khan was seated. The first and the second respondents fired shots in quick succession at Sikander Khan.. The shots strllCk Sikander Khan in his chest and neck and he fell down dead. On hearing the alarm of P.Ws one and two, the neighbours came and saw all the accused running away. Sikander Khan, on receiving the gun-shots died on the spot. The first information report was given by P.W. 1 at about 11.35 P.M. and it was recorded by the Head ConstaMe, P.W. 7. The investigation was taken up by E P.W. 8. The respondents surrendered in court on November 4, 1967. The doctor, who performed the postmortem on the body ot Sikander Khan, had given the opinion that the gun-mot injuries on the chest and the neck were individually sufficient to cause death in the ordinary course of nature. F Respondents one and two were tried for the offence of committing the murder of Sikander Khan under section 302. The other two respondents were tried under section 302 read with section 34. The respondents three and four pleaded !hat they had been implicated in the case due to enemity. The first respondent, apart from adopting the said plea, further set up an alibi. G According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967. In view of the fact that he was in the hospital on 16-10-1967, the evidence given implicating him in the murder is false. The prosecution mainly relied on the evidence of P. W s 1 and 2, the H brothers of the deceased, to prove its case against the accused. The first respondent also examined the doctor of the Bareilly hospital and two nurses working there in support of his plea of alibi. The court examined a student nurse working in the same hospital 6-L796Sup.C.I.f' 3 . 332 SUPREME COURT REPORTS (1973) 3 S.C.R. as C.W. I. Notwithstanding the fact that P.Ws 1 and 2 were brothers of «he deceased and as such can be described as partisan witnesses, the learned Sessions Judge accepted their evidence as true. Regarding the plea of alibi set up by the first respondent, the learned Sessions Judge, after consideration of the evidence of P.Ws 1 to 3 as also the evidence of C.W. 1, held that the said plea cannot be accepted. The Court ,further held that though the first respondent was operated upon for hydrocele on October 18, 1967, the evidence of the doctor and the nurses of the Bareilly hospital establish that it was possible for the first respondent ta move about and it was further possible for him to be absent frorn the hospital on October 16, 1967. In fact the view of the learned Sessions Judge is that the murder of Sikander Khan had been planned and the first Respondent, in order to create the evidence of alibi, got himself admitted in the district hospital at Bareilly on the 14th and that he successfully manoeuvred to have the operation originally fixed for October 16, 1967, postponed. By so manoeuvring, the first respondent was able to be in the village on October 16, 1967 and, after committing the murder, he went back to the hospital. In this view, the respondents cme and two were convicted under s~ction 302 and sentenced to death. The respondents three and four were also found guilty of murder under section 302, read with section 34 on the finding that they had associated themselves with the other two accuse.d with the common intention of committing the murder of Sikander Khan. However, they were sentenced to undergo imprisonment for life. All the four respondents appealed to the High Court challenging their conviction and sentence. There was also the reference for confirmation of the sentence of death of respondents one and two. The main findings of the High Court were as follows : "It is not necessary to give details of enmity that existed bet· ween the deceased and the accused. Murders appear to be quite common in the area where the parties live and they resort to such crimes. The two eye witnesses, P.Ws 1 and 2, being the brothers of the deceased are partisan witnesses. These two witnesses have not given proper answers when cross-examined on the point whether the first respondent was in the village from 14th October, 1967. Though there can be some argument whether the first reipondenr was or was not actually in the hospital from the afternoon of October 16, 196-7 till the morning of the next day, yet the evidence shows that he was admitted in the Bareilly hospital on the 14th October and was there on the next day also. He was operated on October 18 1967. In view of these facts be could not be in the village on the 14th and 15th October, 1967. Hence the evidence of P.W. 2 to the contrary is false. As P.W. 2 has made a false statement with regard to the presence of the first respondent A B c I) E F G tt A B c D E F G H U.P. STATE v. !FTIKHAR KHAN (Vaidialingam, J.) 333 in the village on 14th and 15•,h Oc:ober, 1967, his brother, P.W. 1, should also be put in the same category, as it is not proper to believe one brother and disb~lieve the other. If the ty;o partisan eye wrtnesies, P.Ws 1 and 2, had made a satisfactory statement, the plea of alibi set up by the first respondent has to be viewed with considerable doubt and respondents two and four may not be entitled to the benefit of the said doullt. As only two shots had been fired, it was possible for the assailants to escape quickly and the theory of the witnesses making a mistake cannot be excluded. It cannot be stated that respondents three and four had the common intention to commit the murder, as villagers in good faith pass on the road in the mid-night carrying lathi:;. Both respondents two and three Ill.llY have had lathis and it is also likely that they may have accompanied the other two respondents, but they may have done so without any knowledge that fire-arms were being carried to commit the murder of Sikander Khan. If the incident has taken place at night making it clear that all persons must have been acting together, it may be held that common inte11'1ion of all was to commit the murder. Though it may be that the party of the accused was responsible for the murder, the evidence of the partisan witnesses is not satir.factory and as such all the accused are enti'tled to the benefit of doubt". On behalf of the appellant State, Mr. 0. P. Rana, learned counsel, attacked the judgment of the High Court on the ground that before reversing the conviction and sentence passed on the respondents, and acquitting them, the learned Judges h_ave not adverted to the main evidence relied on by the prosecution and, without recording any finding, have accepted the plea of alibi set up by the first respondent. The order of acquittal has been passed b!y the High Court, according to the learned counsel, on mere conjectures and without any reference to the materials on record. Quite naturally, he pressed before us the various items of evidence relied on by the learned Sessions Judge for convicting the respondents and which .have not been taken into account by the High Court. Mr. D. Mookerjee, learned counsel for the reipondents one and three, pointed out, what according to him were serious discrepancies in the evidence adduced by the prosecution. The counsel urged that though the judgment of the High Court has not elaborately considered and dealt with al! those matters. nevertheless thev must have been in the minds of the learned Judges of the High Court when thev gave the benefit of doubt to the accused and acquitted them. ·It-was further stressed that the State has not madJ out a case for this Court, in exercise of its powers under Article 136. to interfere with the decision of the High Court acquitting :the accused. 33~ SUPREME COURT REPORTS [1973] 3 S.C.R. Mr. B. R. Aggarwala, learned counsel appearin,11; for the 4th A Respondent, adopted most oi. the general arguments that have been advanced by Mr. Mookerjee. He particularly stressed that the conviction of the 4th Respondent for an offence under section 302 IPC, with the aid of section 34, is not justified, as there is nothing in the evidence to show that, even if the shooting by Respondents 1 and 2 is accepted, the said criminal act was done qy B the said accused in furtherance of the common intention of all ~ four accused. According to him there is no evidence to establish that the criminal act was done in concert or pursuant to a pre' arranged plan. The counsel drew our attention to the evidence of P. W s 1 and 2, which at the most, according to him, only establishes that all the accused came together and that they left the c place at the same time after the shooting waS done by Re>pondents 1 and 2. Those witnesses do not speak of any overt act done by Respondent 4. He further pointed out that in the first information report given by P.W. 1, there is no reference to the 4th Respondent being armed wrth a lathi. Both P.Ws 1 and 2 have improved upon this version in the F.l.R. Before the court, they have stated D that Respondents 3 and 4 came armed with lathis. But even then, he pointed out, those wrtnesses did not speak of ariy further part played by Respondent 4 except that he was in the company of the other accused. The counsel drew our attei;ition to the decision of the Judicial Committee in Mahbub Shah v. KingEmperor(') as well as the decision of this Court in Pandurang, ll Tukia and Bhil/ia v. The State of Hyderabad(') wherein the ingradients necessary for the application of section 34 of the Indian Penal Code have been laid down. In view of the total lack of evidence to establish that the act was done in furtherance of the common intention of all, the counsel urged that the order of acquittal passed by the High Court in favour of the 4th Respondent F does not require interference. We may at this stage mention that the evidence regarding the participation of Respondents 3 and 4, who are tloth stated to have come with Jathis, is the same. Therefore, we will have due regard to the contentions of Mr. Aggarwala, even when the case of the 3rd Respondent is being dealt with by us. G We will later refer to the various aspects that were pressed before us by the learned counsel for the accused. It must be stated that in view of the approach made by the High Court, by not considering the various items of evidence and recording suitable findings, both the learned counsel found consiH derable difficulty in supporting the judgment of the High Court, (I) [1945] L.R. 721.A. 148. • ,_, 1 (2) [J955J S.C.R .. t083 .. A B c D E F G ff U.P. STATE v. IFTIKHAR KHAN (Vaidialingam, !.) 335 though it must be stated in fairness to them that they tried their very best to do so. We have earlier broadly indicated the views expressed bi}' the High Court. It must be remembered that the High Court was dealing, apart trom an appeal by the convicted accused, also with a reference made by the learned Sessions Judge under section 3-7 4, Criminal Procedure Code, for confirmation of the sentence of death passed on respondents one and two for an offence of murder. As pointed out by this court in Masalti v. State of U.P., (') under such circumstances there was a duty on the High Court to independently consider the matter carefully and to examine all relevant and material circumstances. A perusal of the judgment of the High Court gives the unfortunate impression that this principle has not teen borne in mind. Before we reler to the evidence on record as well as the con· tentions of Mr. Mookerjee, it is desirable to clear the ground regarding the powers. of this Court under article 136 to interfere with the orders of acquil'lal passed by the High Court. It has been strenuously pressed before us by Mr. Mookerjee that unless the conclusion reached by the High Court is such that no Tribunal will come to, this Court will not interfere with the order of acquittal. while exercising power under Article 136. It is true that this Court will interfere in the circumstances mentioned by Mr. Mookerjee. but that is not the only circumstance under which interference will be warranted. There are several other circumstances under which interference may and has been made by this Court. We will refer to some of those circumstances presently. It is now well established !hat in appeals against acquittal by special leave under Article 136, this Court has no doubt powers to interfe•e with findings of fact, no distinction being made bet· ween judgments of acquittal and conviction. It has also been held that this. Court will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court has acted perversely or otherwise improperly or there has been a· grave miscarriage of justice. It has been further held that where this Court found that grave injustice has been done by the High Court on grounds which are plainly untenable and the view taken by the High Court is clearly unreasonable on the evidence on record. a case for interference is made out. The recent decisions of this Court on this aspect laying down the above principles are to be found in Him11chal Pmdrsh Administration v. Om Prakas/1(') and State of Uttar Pradesh v. Samman Dass.(') (1) (1964] fA) S.C.R. 1)3, (2) A.J.R.1972 S.C. 975. (3) Crim•nal Appeal No. 17of1971 decided on'll·1·1972. \ 336 SUPREME COURT REPORTS (1973} 3 S.C.R. Bearing in mind the above principles, we will now refer to the material evidence on record. The evidence· of P .W. 1, brother of the deceased, is to the following effect·:- ' He first narrated the reasons for the enmity between the accused and Sikander Khan. At about 8.30 P.M. on October 16, 1967, his brother, the deceased Sikander Khan, was sitting opposite to his shop and reading 'Jang Nama'. P.W. 1 and his brother, P.W. 2, were also wrth the deceased listening to the reading of the epic. Suddenly the four accused came together to the place where Sikander Khan was sitting. The respondents one and two, who were armed with pistols, fired a shot each at Sikander Khan. The .shots hit Sikander Khan in the chest and in the neck· and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead. When respondents three and four came with the other accused, they had lathis with them. After the shooting, all the accused ran away. He gave the first information report at about 11.35 P.M. which was record· ed by P.W. 7 .. The evidence of P.W. 2 is also substantially to the same effect. Surprisingly, P .Ws 1 and 2 have not been crossexamined, when they spoke of enmity between Sikander Khan and the accused. · A B c D In the first. information· report, after referring to the murder of Aqil Khan and other matters, P .W. 1 has substantially stated E about the occurrence as mentioned by him in the witness box. He referred to the presence of his brother, P.W. 2, as also the villagers referred to in his evidence as having come to the scene immediately after the. shots were fired. It is no doubt true that both P.Ws 1 and 2 are the brothers of the deceased. ·This aspect has been taken into account by the learned Sessions Judge and he has considered their evidence to be truthful.· But whrn we come to the High Court, there is neither an analysis nor proper consideration of the evidence of these two eye witnesses. The. learned judges of the ffigh Court stated that they are partisan witnesses. True it is that they are partisan wit· nesses being the brothers of the deceased. The reason given by the High Court for rejecting the evidence of those witil;:sses is that' P.W 2 has made a false statement with regard to the presence or . absence of Iftikhar Khan in the village on the 14th and 15th October, 1967. It is the further view of the High Court that when the evidence of P.W. 2 is not being accepted, the evidence of P. W. 1 also cannot be accepted, as both brothers must be placed in the same category. This line of ~easoning, in our opinion, is erroneous. F G H 1 • • • • • • A B c D E F G H U.P. STATE v. !FTlKHAR KHAN (Vaidialingam, J.) 337 The plea of alibi set up by the first respondent will be considered by us later. But it is necessary to refer to 'the answers given m the cross-exarnmauon of P.Ws l and 2 to consider whether the approach made by the High Court for rejecting their evidence is juscified. We find tha't the cross-examination of these two witnesses is very scanty. The only suggestion made to P. W. l was whether Ittikhar Khan had been aamitted to some hospital at Bareilly on the day of occurrence, namely, Octobier 16, 1967. His answer was th.at the suggestion is not correct. There is no further question put to this witness regarding the respondent one having been admitted in the hospital, the duration of his stay in the hospital or his discharge from the hospital. P.W. 2 in crossexamination has stated that he had seen lftikhar Khan all along in the village on the day of occurrence and for three or four oays before the occurrence. This must be the answer obviously to a question whether the witness had seen Iftikhar Khan in the village on the day of the occurrence and also during the three or four days before October 16, 1967. No further questions have been put to this witness. It is on the basis of the answer given by,P.W. 2 that the High Court has rejected, not only his evidence but also the evidence of P.W. 1. In our opinion, the approach made by the High Court is erroneous, especially when we do not find any positive finding by !he court that the first respondent was in the hospital on October 16, 1967. The High Court's rejection of their evidence has been substantially on the ground that, they being the brothers of the deceased, were partisan witnesses and, therefore, their evidence is unworthy of credence. Here again, the learned Judges have committed an error. It is no doubt true that when the court has to appreciate the evidence given by witnesses who are partisan or interested, it has to be very careful in weighing their evidence. Some of the points to be taken into account will be whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is true. In our opinion, it is unreasonable to reject the evidence given by the witnesses merelv on the ground that they are partisan or interested witnesses. Judicial approach has to be very cautious in dealing with such evidence. The Hi~h Court has not given due c~~si