STATE OF U.P. versus IFTIKHAR KHAN & ORS

Citation: [1973] 3 S.C.R. 328 · Decided: 15-01-1973 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Appeal(s) allowed

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Judgment (excerpt)

328 
STATE OF U.P. 
v. 
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-
Criminal law-Practice and Procedure-Duty 
examine all wi'tntsses. 
Scope of. 
of 
Prosecution 
I{) 
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 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. 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 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 interest-
ed 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 <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 a grave miscarriage of_ justice, and the view taken 
by 
the 
High Court 'is clearly unreasonable on the evidence on record. In a 
reference made by the Sessions Courti under 
s. 374, 
Cr. P. C., 
for 
cotnfirrnatiQn of the sentence of death passed by it, there is a 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-HJ 
Ma.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 
a pre-arranged plan has to be established. But as it is difficult to prove 
the intention of an individual, it has to be inferred f

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