STATE OF U.P. versus IFTIKHAR KHAN & ORS

STATE OF U.P.

IFTIKHAR KHAN & ORS .. January 15, 1973

[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J

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. 34-Scope of. Criminal law-Practice and Procedure-Duty of Prosecution I{) examine all wi'tntsses. Sentence-Murder-When accused may be sentenced to imprison-men 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 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. Accord-ing 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 charac-terising 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 specific finding o.n the plioa ot aUhi of the coneemed accused. [337D-EJ

t<> the evidence of

(b) It did not consider whether there were any discrepancies in the 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 interest-ed witnesses. [337E-G]

(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 <irdinarily interfere with the appreciation of evidence or with lhndings of fact unless the High Ccurt has acted perversely QI' otherwise improperly on grounds which ore plainly untenable or there has b,een grave miscarriage of_ justice, and the view taken by the High Court 'is clearly unreasonable on the evidence on record. In reference made by the Sessions Courti under s. 374, Cr. P. C., for cotnfirrnatiQn of the sentence of death passed by it, there is duty on the High Court to independently consider the matter carefully and examine all relevant and material circum.stances; but if the High Court reverses the decision of the trial court on grounds which are pla'inly faHacious and untenable, -and grave ~t!justiCe has been done, this Court will interfere with the order of the High Court. [335B-C, F-HJMa.valti v. State of U.P., [1964] 8 S.C.R. 133, Himachal Pra6.esh Administration v. Om Prakosh, A.LR. 1972 S.C. 975 and State of Uttar Pradesh v. Saman Doss Criminal Appeal No. 17 of 197! declded on 11-1-1972 followed.

(3) For invoking s.34, I.P.C. against an accused prior concert or pre-arranged plan has to be established. But as it is difficult to prove the intention of an individual, it has to be inferred from his act, or conduct and other relevant circumstan~s. The section \\ill be attract-ed if it is established that the criminal act has been done by any one of the accused persons in furtherance of the common intention. common intetntion-a meeting of minds-to commit an offence and participation in the commission of the offen~ 'in furtherance of that common intention invite the application· of the section. But participa-tion need lOOt in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offen~ of the offenders sought to be rendered liable on th~ principle of joint liability may be necessary, but it is not necessary, to attract the section, that any overt act must be dlY,ne by the particular accused who was present. [344-C; 345 A-Ill

In the c'ircumstances of this Case, the accused with the Iathis must be held to be guilty under s. 302 read withs. 34 I.P.C. [344-HJ

Pandurang, Tukia and Bhi/lia v. The State of Hyderabad, ll955J S.C.R. 1083, Krishna Govind Patil v. State of Maht;·rashrra, (1964] 1 S.C.R. 678 and Jaikrishnadc.s Manohardas Desai and Anotht?lr v. The State of Bomba,v, [1960) 3 S.C.R. 319 followed. Mahbub Shah v. King-Emperor, [1945] L.R. 72 I.A. 148 and Barandra Kumar Ghose v. The King Emperor, [1924] L.R. 52 I.A. 40 applied.

( 4) Otdinarily, it 'is the duty of the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testi-H mony is for or against the case of the prosecutio:i. But no purpose. would have been served in the prese;nt case by insisting on the prose-cution examining the othell! as witnesses, in view of the affidavits filed by them. [3380-B, HJ

Habeeb Mohammad v. The State of Hyd«abad, [1954] S.C.R. 47:; and Sahai Rcmi & Others v. The State of U.P. Criminal Appeal No. 131 of 1969 decided on 17-11-1972 followed.

Staphen Senevirathe v. The King, A.LR. 1936 P .C. 289, applied.

(5) Since more than 4 years had passed since the sent<;>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 impri-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 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. ap<l set'in~ a~;de the conviction recorded against them by the learned Civil and Sessions Judge, Hardoi, under sections 302 and 302 read with 34 I.P.C.

The four respondents herein were tried by the Civil and Sessions Judge for the offence of committing the murder of Sikande:· Khan on October 16. 1967. After the filing of this appeai, the second respondent, Ishitiaq Khan is reported to have been murdered and hence the appeal as against him has become infruC'tUOUS.

In this appeal by the State, we are at present concerned only with Iftikhar Khan. son of Mohammad Hasan, Anwar Khan, son of Mohammad Hussan Khan and Syeed Khan, son of Refiq Hussain Khan, who are respondents one, three and four respec-tively.

The prosecution case was as follows :

All the respondents and the deceased, Sikander Khan, are residents of village Garni Chand. Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associate~. About two years or so. prior :<' the murder of Sikander Khan, Aqil Khan, brother of

respondents of one and three, was murdered. In connection with the said murder, the deceased, Sikander Khan, Ilyas Khan and two or three others were tried. However, they were acquitted about ten months prior to this incident. On October 16, 1967, the day on which Sikander Khan was murdered, case of attempt-ed murder of Ilyas Khan was pending against respondents one and two herein. Both of them had been released on bail about momh prior to October 16, 1967. Respondents one and three strongly suspected that Sikander Khan was responsible for the murder of their brother, Aqil Khan, though there has been an acquittal by the court in his favour. On October 16, 1967, at about 8.30 P.M., Sikander Khan was sitting on cot in front of hi' >hop 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 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 receiv-ing 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 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.

Respondents one and two were tried for the offence of com-mitting 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 respon-dent, apart from adopting the said plea, further set up an alibi. 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 openrt-ed 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 pro-secution mainly relied on the evidence of P. W s 1 and 2, the brothers of the deceased, to prove its case against the accused. The first respondent also examined the doctor of the Bareilly hos-pital and two nurses working there in support of his plea of alibi. The court examined student nurse working in the same hospital 6-L796Sup.C.I.f' 3 .

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 challeng-ing 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 evi-dence of P.W. 2 to the contrary is false. As P.W. 2 has made false statement with regard to the presence of the first respondent

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 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 mistake cannot be ex-cluded. 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 res-c pondents 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 in-cident 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 respon-dents 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 dis-crepancies 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 case for this Court, in exercise of its powers under Article 136. to interfere with the decision of the High Court acquitting :the accused.

Mr. B. R. Aggarwala, learned counsel appearin,11; for the 4th 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 Res-pondents 1 and 2 is accepted, the said criminal act was done qy 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 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 esta-blishes that all the accused came together and that they left the 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 lathi. Both P.Ws 1 and 2 have improved upon this version in the F.l.R. Before the court, they have stated 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 deci-sion of the Judicial Committee in Mahbub Shah v. King-Emperor(') as well as the decision of this Court in Pandurang, 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 ac-quittal passed by the High Court in favour of the 4th Respondent 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.

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 consi-derable difficulty in supporting the judgment of the High Court,

(I) [1945] L.R. 721.A. 148. • ,_, 1 (2) [J955J S.C.R .. t083 ..

U.P. STATE v. IFTIKHAR KHAN (Vaidialingam, !.)

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 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 duty on the High Court to independently consider the matter carefully and to examine all relevant and material circumstances. perusal of the judgment of the High Court gives the unfortunate impression that this prin-ciple 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 re-garding 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 acquit-tal. 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 circums-tances 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 apprecia-tion 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. 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(') ff 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.

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 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 cross-examined, when they spoke of enmity between Sikander Khan and the accused. ·

In the first. information· report, after referring to the murder of Aqil Khan and other matters, P .W. 1 has substantially stated 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 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.

The plea of alibi set up by the first respondent will be consi-dered 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 wit-nesses 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 cross-c examination 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 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 wit-nesses 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 evi-dence; 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<tera­tion to these aspects also when rejecting fhe evidence of P.Ws 1 and 2: This also answers the contentions of Mr. Mookerjee that the evidence of P.Ws I and ?.. who are partisan wf!nesses, bas been rightly rejected h'y the High Court.

Mr. Mooketjee next pointed out that the non-exami11ation bv the prosecution of the nerson~ mentioned in the first information report and who. according to the prosecution, have seen the occur-

rence, must have weighed with the High Court in rejecting the interested testimony of P.Ws 1 and 2. He further stressed "that there was duty on the part of the prosecution to have examined those persons who have witnossed the occurrence irrespective of the nll!ture of the evidence that they may give before the court. On the other hand, he pointed out that those persons, who can be called independent witnesses, have been kept back and only the brothers of the deceased have been examined and the prosecution must bear the consequences of such evidence not having been accepted by the court.

The counsel further ·urged that the non-examination of those per5ons, mentioned in the first information report, who have seen the occurrence, has prejudiced the accused and, therefore, theit conviction, by the trial court, based merely on the testimony of P. W s 1 and 2, who are none else than the Qi-others of. the dei;eased, cannot be considered to have been arrived at after fair trial.

It is no doubt true that, as pointed out by this Court in Habeeb Mohammad v. The State of Hyderabad(!), it is the duty oE the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testimony is for or against the case of the prosecution. In the said decision, the observations made to the same effect by the Judicial Commilltee in Stephen Seneviratne v. The /(ing([2 ]) have been quoted with approval. To similar effect is also the recent decision in Sahaj Ram & Others v. The State of U.P.([8]).

After giving due consideration to the above contentions of Mr. Mookerjee, we are of the opinion that, in the particular cir-cumstances of this case, there was justification for the non-exami-nation of Laddan Khan, Baboon Khan, Ibne Hasan and Munnan Khan. • From the evidence of the investigating officer, P.W. 8, it is seen that the statements were recorded by the police from the above persons on the morning of October 17. 1967. P.W. 1 in his chiel examination had stated that Laddan Khan, Babban Khan and Ibne Hasan had seen the murder of his brother, Sikander Khan. It is his further evidence that though they had seen the murder, yet due to fear of the accused persons they had filed false affidavit on April 16, 1968, before the Committing Magi.~­ttate that they had seen nothing. So far as we could see, there is no cross-examination of P.W. 1 on this point. When these three persons had filed affidavits before the Committing MagiStrate that they bad seen nothing, it serves no purpose to insist on the prose-

-mi·t9"4J S.C.R. 4,5. (2) A.I.R. 1936 P.C. 289. (3l Criminal ~No. 131 of 1969 decided on 17·11·1972.

U.P. STATE v. IFTIKHAR KHAN (Vaidialingam, J.)

cution examining them as witnesses. So far as Munnan Khan is concerned, he is the uncle of P.Ws I and 2 and the deceased and the evidence of P.Ws I and 2 is that he came running to the scene when an alarm was raised. His evidence would not have carried the matters further because he had come only after the actual shooting had taken place. His evidence is not essential to the unfolding of the prosecution case; and as much he was not material witness. Therefore, this criticism regarding the non-· examination of the said four persons has to be rejected.The main plea of the first respondent was that on the date of the occurrence he was in the Bareilly hospital and, therefore, the evidence of the prosecution witnesses regarding his participation in the murder is false. All the four accused surrendered b,efore the Magistrate on November 4, 1967. On the said date, the first respondent filed statement before the Magistrate to the effect tha<t on the date, when the murder is alleged to have taken pface, namely, October 16, 1967, he was already in the District hospital, Bareilly from October 14, 1967 to Oc'lober 31, 1967, and that he was also operated upon for hydrocele in the meanwhile. According to him, he was in the hospital durin11: the entire period from October 14, 1967 to October 31, 1967. If 'this is established. there can be no doubt that his acquittal by the High Court will be justified. Again if he was in the hospital on October 16, 1967. the evidence given by the witnesses regarding the participation in the crime of nat only the fi.rst resvondent but also of the other respondents. will have to be viewed with greater care and caution i.e. whether their evidence can be considered to be true even· re-~arcling the participation of resnondents two to four. But the question is whether on the evidence it can he helri that the first , respondent was in the hospital on October 16. 1967.

In support of his plea of alibi, the first respondent had examined the Medical Officer, D.W. 1, and two nurses, D. Ws 2 and 3 working in the said hospital. As the name of another person was also mentioned by D.Ws 2 and 3, as having been work-ing in the hospital in the particular ward on the relevant date. the learned Sessions Judge has examined the said person as C.W. 1. D.W. 1 no doubt refers to the first respondent havin!l' been ad-mitted as an indoor patient in the district hospital, Bareilly. on October 14, 1967. But he has stated that the operation of the ~aid accused for hydrocele. which had been fixed originally on October 16. 1967. did not tal.;e rtace and that he was actl'allv operated on October 18, 1967. But the point to be noted from the evidence of this witness is that he can~ot say on oath that on

October 16, 1967, the fifS't respondent was present in the hosphal all along. He has also stated mat on Octooer 16, 1967, the first respondent might have been in frt pos111on to move about and that there is no signature of the said accused in the, records of the hospital on October 16, 1967. D.W. 2 claims to be the sister-in-charge of the hospital on October 16, 1967. She has stated that she was on duty from 7.00 A.M. to 12.00 A.M. and again from 4.00 P.M. to 8.00 P.M. on October 16, 1967. It ls her further evidence that she can say from memory that on October 16, 1967, the first respondent, Iftik:har Khan, whom she is able to recognise by sight, was in the hospital. 111 view of this statement, quite naturally, she was very severely cross-examined 1fy the prosecu-tion. She had admitted in cross-examination that there is n0-record to say that she was on duty in the hospital on October 16, 1967 and that there is also no record to show that she counted the patients and satisfi,!Od herself that the first respondent was in the hospital. Even in cross-examination she has stated that she count-ed the number of patients at 4.00 P.M. on October 16, 1967, in the presence of CW 1. But she is prepared to admit that the operation, which was scheduled to take place on October 16, 1967, was postponed because the operation fee was not paid by the first respondent. She has wound up her evidence by stating that all the answers given by her on December 18, 1968, regarding the presence of the first respondent in the hospital on October 16, 1967, were from her memory. To specific question by the Court, this witness bas further stated that it is only on the basis of memory that she was saying that she took charge of the patients on October 16, 1967, at 4.00 P.M. along with the student nurse, Sharma, CW I. She bas admitted that in the 'Da)' and Night' register, which appears to have teen produced before the court, it has not been noted that CW 1 came on duty at 4.00 P.M. on October 16, 1967. DW 3, another staff nurse, working in the hospital, has stated that she may have been on duty on October 16, 1967, from 7.00 A.M. to 4.00 P.M. But on seeing the first respondent in the dock. she has stated that she is not sure if the same person was admitted for operation of bydrocele in the hos-oital. In fact. in an answer to auestion out bv tbP. court. she has admitted that she cannot say if the first respondent was in her' ward at any time, even between 7.00 A.M. and 4.00 P.M. on October 16, 1967.

Cominq to CW 1, she has categoricallv denied that she was ever out in-cba•ge of the ward on October 16. 1967. and she bas also denied having made anv countinJ! of patients and that at 4.00 P.M. and in the comoanv of DW 2. She has also stated that she cannot say il the first respondent was an indcor patient

in the hospital on October 16, 1967. From the above evidence, it is evident that it is onlv DW 2 who has stated that the 1st Res-pondent-accused was in "the hospital on October_ 16, 1967, from morning till 8.00 P.M. If he was in the hospital at 8.00 P.M .• it is evident that he could not have been present at the scene of occurrence at 8.30 P.M. That much is accepted by the prosecu-tion .. But the learned Sessions Judge has dis-l~lieved the evidence of DW 2. Her evidence, as mentioned earlier, is purely guess work and from memory. There are no records produced from· the hospital to corroborate her evidence that the first respondent was in the hospital on October 16, 1967. In fact, CW 1, in whose company the counting of patients is stated to have been done by DW 2, finally contradicts the latter. _ DW 3 does not support DW 2. The High Court, while considering the evidence of the- . Medical Officer, DW 1, does not express _its opinion as to the· truthfulness or otherwise of DW 2 except saying that nurses have-to work at very great speed in the hospitals and that they can also make mistakes. It is bit difficult to appreciate in what context this observation has been made by the High Court. It is no doubt true that from the evidence of DW 1, the Medical Officer, it is evident that the first respondent was admitt~d in the hospital on· October 14, 1967. Though there is no clear' evidence, one way or-the other, it is very likely that he was in the hospital ,also on Octo--ber 15, 1967. But the evidence of DW 1 is clear to the elfect that he cannot speak of the first respondent having been in the hospital" on October 16, 1967. DW 3 and CW t did not state that the-first respondent was in the hospital on Octot,.r 16, 1967. DW 1 is also positive when he says that the operation, which was sche-duled to take place on October 16, 1967, was postponed to October 18, 1967. and that the first respondent was in positiow. to move about on the foriner _ date. These circumstances clearly show that it was possible for the first respondent to be absent from· the hospital on October 16,-1967.- None of the witnesses examin-ed by the defence have stated that once person has been admitted" to the hospital, he cannot leave the hospital under any circums--tances till he is discharged. Nor do they say that any particular patient can leave the hospital only with their perrnissicn. Ad-mrl'tedly, none of the witnesses spoke about any permission having· been asked for on given to the first respondent to be at 1-ent from the hospital. In view of these facts, it is reasonable to infer that because of 1he very minor ailment that the first respondent had, it-was possible for him to leave tlie hospital on October 16, 1967, and to _be absent throughout the day or, at any rate, in the evening .. -To conclude on this aspect, the evidence of the defence witn~sses; does not rule out the possit~lity of the first respondent being ab-

sent from the hospital and his being found at the scene of occur-rence as spoken to by the eye witnesses.

Mr. Mookerjee no doubt urged that the High Court might have been influenced by the fact that the evidence of the defence witnesses creates lot Q_f doubt about the participation of the first respondent in the crime. We are prepared to agree that if the said evidence really raises reasonable doubt in the mind of the court regarding the participation in the crime by the first respondent. that doubt must be resolved in his favour. In this context, it is pertinent to quote the followiag observations in the decisioe in Himachal Pradesh Administration Vs. Om Prakash(') :"The benefit of doubt to which the accused is en-titled is reasonable dou~t--'the doubt which rational thinking men will reasonably, honestly and conscien-tiously entertain and not the doubt of timid mind .which fights shy-though unwillingly it may be--or is afraid o.'. the logical consequences, if that benefit was not given; or as one great .Judge said it is 'not the doubt of vacil-lating mind that has not the moral courage to decide but shelters itself in vain and idle scepticism".

In our opinion, the evidence of the defence witnesses does not create any reasonable doubt, even in favour of the first respondent.

In the case before us, the learned Sessions Judge has convicted the first respondent for an offence under section 302. The 3rd and 4th respondents were convicted under section 302 read with section 34 of the Indian Penal Code for having associated them-selves, armed wi'th lathis, wi'th the other accused with the ccmmon intention of committing the murder of Sikander Khan.

This is the convenient stage to deal with the contention of Mr. Aggarwala, learned counsel for the 4th Respondent, that even if the presence of his client at the time ot the occurrence is proved the evidence has not established that the criminal act was done by Respondents I and 2 in furtherance of the common intention of all the four accused. As this relates also to the 3rd Respondent, the question is whether section 34 can be applied in the case of the said two Respondents. As we have already indicated, the evidence regarding the participation of Resoondents 3 and 4 is common. Hence, if the contention of Mr. Aggarwala regarding the non-applicabilitv of section 34 with respect to the 4th Res-pondent is accepted. the same will apply to the 3rd Respondent also.

As pointed out by the Judicial Committee in Mahbub Shah v. King-Emperor("), to invoke the aid of section 34 IPC it must be shown that the criminal act complained against, was dcne by any one of the accused persons in the furtherance of the common intention of all. If this is shown, anyone of the accused persons may be made liable for the crime, in the same manner as if the act were done b!y him alone. To convict an accused of an offence, applying section 34, it is necessary to establish that the criminal act was done in concert pursuant to pre-arranged plan. It is also to be borne in mind that it is difficult, if not im-pcssible, to procure direct evidence to prove 'the intention of person. Therefore courts, in most cases, have to infer the intention from the Act or the conduct of particular person or from the other relevant circumstances of the case. It is also to be remem-bered, as emphasised by the Judicial Committee, that 'the inference· of common intention, within the meaning of the term in section 34, should never be reached unless it is necessary inference deducible from the circumstances of the case'.

The above principles have been reiterated by this Court in Pandurang, Tukia and Bhillia v. The State of Hy(ierabad('). It has also been stated in the said decision that there is no special rule of evidence for applying section 34 and "at bottom, it is question of fact in every case and however similar the circums-tances. facts in one case cannot be used as precedent to deter-mine the conclusion on the facts in another. All 'that is ·necessl!ry is either to have direct proof of prior concert, or proof of circums-tances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis".

In Krishna Govind Patil v. State of Maharashtra('), the principle has again been reiterated that before court convicts Person under section 302 read with section 34, it has to record definite finding that the said person had prior concert with one or more other persons, armed or unarmed, for committing the said offence. In Jaikrishnadas Manohardas Desai and Another v. The State of Bombay(') it has been held that "the essence of liability under section 34 is to be found in the existen~ of com-mon intention animating the offenders leadinJ! to the doing of criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under section 34 is not, on the words of the statute, one of the conditions of its appli-

(2) 11955] S C.R. 1083. (4) [1960] S.C.R. 309.

(I) {1945] L.R. 72 I.A. 148. (3) {1964] I S.C.R. 678.

liUPREME COURT REPORTS

i:ability." As explained by Lord Sumner in Bilrendra Kumar Ghose v. The King Emperor,\') ''!he ieadmg feature· ol sei:\ton .34 of the Indian Penal Code 1s ·participation' m action. To esta-blish joint resp!>ns1b11ity tor an. olfence, it must of course be esta-.blished that crimmal act was done by several persons; the parti-cipation must be 1n doing the act, not merely in its planning. .common intention-a meeung of minds-to commit an oil'ence .and participation in the commission of the offence in furtherance of iliat common intention mvite the application of section 34. But this participation need not in a.11 cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liaWlity may be necessary, but such is not '1he case in respect of, other offences where the offence consists of diverse acts which may be done at different times and places".

Having due regard to the various decisions referred to above, the question is whether the evidence in the case before us esta-blishes that the shooting of Sikander Khan by Respondents 1 and 2 was done in furtherance of the common intention of all the four accused. The evidence of PW s 1 and 2 is to the effect that all the four Respondents are residents of the same village and Res-pondents 1 and 3, who are brothers, are bitterly inimical to Sikander Khan, the deceased. Respondents 2 and 4 are their close friends. There is evidence regarding murder of brother of Res-pondent 1 and the acquittal of the deceased after trial in connection with that murder. The evidence is also to the effect that Respon· <lents 1 and 2 were on bail at the material time, having been con-'Victed by the Trial Court in connection with an attempt to murder -one, Ilyas Khan, who was close associate of the deceased. These facts have not been challenged by the accused in the cross-exami--n·ation of PWs 1 and 2. Respondents 1 and 2 armed with pistols and Respondents 3 and 4 armed with latbis, suddenly came in 'body through lane to the place where Sikander Khan was sitting 'and reciting 'Jang Nama'. Respondents 1 and 2 fired shots in <1uick succession at Sikander Khan who fell down dead. Respon· dents 1 and 2 again re-loaded their pistols, but, on PWs 1 alld 2 who were with the deceased, raising an alarm, they ran away firing lihots. All the four accused ran away together.

When Resoondents 3 and 4 were examined by the court under ·section 342. their only answer was that they had been implicated due to enmitv of the witnesses. There is no suggestion to PWs 1 and 2 bv either Respondent 3 or 4 re1?arding any reason or justi-fication for their presence near the deceased at the material time. Yf once the evidence of PWs 1 and 2 i~ accepted, as we are inclined

(I) (t924)"I..R. S2 I.~. '40, S2.

to do, the presence of the four accused together at the time of the occurrence stands clearly established. It is true that for invoking section 34 against the accused, prior concert or pre-arranged plan has to be established. But as it is difficult to prove the in-tention of an individual, it has to be inferred from his act, or con-duct and other relevant cic'cumstances. It is in evidence that Res-B pondents 1 and 3 are bitterly inimical to Sikander Khan and that Respondents 2 and 4 are their close associate;. There is also evidence ab~ut the murder of the brother of the 1st Respondent and the deceased, llyas Khan and certain others being tried for that offence as also their acquirtal in the said case. The evidence is also furtb.er to the effec.t that the 1st and 2nd Respondents made an attempt to murder Ilyas Khan by shooting him with pistol some months before the incident. The said two accused were prosecuted and convicted biy the Sessions Court. But about twenty days before the murder of Sikander Khan, bCJth Respondents 1 and 2 had been released on bail pending their appeal. It was at that time that this murder took place. These statements made by PWs 1 and 2 have not been challenged by the 3rd _and 4th Respondents. There is also no suggestion to the .witnesses that Respondents 1 and 2 had hidden their pistols and they drew them out suddenly when they shot at the deceased. It is no doubt true that there is no evidence regarding any over tact having been done by Respon-E dents 3 and 4 at the time when Sikander Khan was shot at. It is not necessary, to attract section 34, that any oven act mur.t be done by the panicular accused. The section will l1e attracted if it is established that the criminal act has been done by anyone of the accused persons in furtherance of the common intention . If this is shown-and in this case we are satisfied that it has been so shown-'the liability for the crime may be imposed on anyone oi. the persons in the same manner as if the act were done by him alone. Their accompanying Respondents 1 and 2, who were armed with pistols, in the background spoken to by PWs 1 and 2, they themselves being armed with lathis and all the four coming together in body and running away together in 1:1ody after the shooting was over, coupled with nq explanation being given for their presence at the scene, lead to the necessary inference of prior concert and pre-arrangement and that the criminal act was done by Respondents I and 2 in furtherance of the common in-tention of all. Therefore, Respondents 3 and 4 will have to be held liable for the crime in the same manner as if the [<Ct were done by any one of them alone. In view of the circumstances mentioned above, in our opinion, Respondents 3 and 4 have to be held guilty under section 302 read with section 34.

The High Court has reversed the finding of conviction on grounds, wn1ch are wholly untenable, The view of the High Court lLlat the accused must be given the benefit of doubt, is wholly un-rea~onabile and is not warr!lnted by the materials on record. _ _The High Court, without proper consideration of the evidence of PWs 1 and 2, has acquitted the accused. The said evidence clearly shows that the first respondent committed the murder of Sikander Khan by shooting him with pistol. That evidence also establishes, as held by us, the participation oi Respondents 3 and 4 so as to make them liable under section 302 read with section 34. The High Court has stated that the villagers pass on the road at 8.30 PM with lathis and, therefore, there was nothing unusual in the 3rd and 4th Respondents being found with lathis. This is an observation made by the High Court without any reference to the evidence on record. There is further observation that the said Respondents may have accompanied Respondents Nos. 1 and 2 without any knowledge that they were carrying fire-arms with view to commit the murder of Sikander Khan. This observation clearly shows that the High Court has not given any consideration to the evidence on record. We have earlier held thqt Respondents 3 and 4 are guilty under section 302 read with section 34 and, therefore, the a.cquittal by the High Court of these Respondents is absolutely unjustified.

The fact thM the High Court was also dealing with reference under section 374 of the Code of Criminal Procedure, particularly regarding Respondents 1 and 2, and as such had duty to appraise the evidence for itself for arriving at its own independent conclu-sion, does not stand in the way of this Court interfering with the order of the High Court when it reverses the decision of the Trial Court on grounds, which are plainly fallacious and untenable. Though this Court does not, in an appeal under Article 136. normally reappraise the evidence and interferes with the assess-ment of that evidence by the High Court, in the case on hand, grave injustice has been done by the High Court interferin~ with the decision of the Trial Court on grounds, which are plainly un-tenable. The view taken by the High Court is clearly unreasonable on the evidence on hand. Therefore, there is ample justification for this Court interfering with the decision of the High Court.

In our view, the evidence in this case was sufficient to justify the conviction of the first Respondent for the offence of murder under section 302 and of the 3rd and 4th Respondents for an offence under section ~02 read with section 34.

Then the question is regarding the sentence. The 3rd and 4th Respondents were sentenced to imprisonment for life by the

U.P. STATE v. IFJIKHAR KHAN ( Vaidialingam, J.)

Sessions Judge. That sentence will be allowed to stand. The first Respondent, Iftikhar Khan, son of Mohammad Hasan, was sen-tenced to death by the learned Sessions Judge. Though this is pre-eminently fit case for the imposition of the sentence of death, the question is whether this Court should impose the said sentence on him now. The trial of the accused was over in January 1969 ll and the first Respondent was sentenced to death by the Civil and Sessions Judge on January 14, 1969. We are now in 1973. In between, the High Court had acquitted him and set him free. Under those circumstances, we are of the view th~t the interest of justice would. be adequately met by sentencing him to imprison-ment for life for the offence under section 302 l.P.C.

In the result, we set aside the judgment and order of the High Court acquitting Respondents Nos. l, 3 and 4 and the appeal is allowed. We convict the lst Respondent for the offence under section 302 and sentence him to undergo imprisonment for life. We further convict the 3rd and 4th Respondents for the offence under section 302 read with section 34 and sentence them to }) undergo imprisonment for life.

There will bie no order on the appeal so far as the 2nd Respon-dent, Ishitaq Khan, son of Mukhtar Khan, is concerned, as it has become infructuous due to his having been murdered during the pendeilcy of the appeal.

Appeal allowed.