criminal appellate jurisdiction cr. appeal number 252 of
1969.
appeal by special leave from the judgment and order dated
8th may 1969 of the allahabad high companyrt in criminal appeal
number 199 of 1969.

p. rana for the appellant. vimal dave for respondents number. 1 3.

b. agarwala for respondent number 4.
the judgment of the companyrt 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 number 199 of 1969  referred number 21
of 1969  allowing the appeal of the four accused
respondents herein and setting aside the companyviction
recorded against them by the learned civil and sessions
judge hardoi under sections 302 and 302 read with 34

p.c. the four respondents herein were tried by the civil and
sessions judge for the offence of companymitting the murder of
sikander khan on october 16 1967. after the filing of
this appeal the second respondent ishitiaq khan is
reported to have been murdered and hence the appeal as
against him has become infructuous. in this appeal by the state we are at present companycerned
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 associates. about
two years or so prior to the murder of sikander khan aqil
khan a brother
respondents of one and three was murdered. in companynection
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. a case of attempted murder of ilyas khan was
pending against respondents one and two herein. both of
them had been released on bail about. a month 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 companyrt in his favour. on october 16 1967
at about 8.30 p.m. sikander khan was sitting on a company in
front of his shop 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 companyntry 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 struck 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 companystable p.w. 7. the investigation was taken
up by p.w. 8. the respondents surrendered in companyrt on
numberember 4 1967. the doctor who performed the postmortem
on the body of sikander khan had given the opinion that the
gun-shot 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 company-
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 that
they had been implicated in the case due to enemity. the
first respondent 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 operated 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.ws 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 hospital
and two nurses working there in support of his plea of
alibi. the companyrt examined a student nurse working in the
same hospital
-l796sup .c.i./73
as c.w. 1. numberwithstanding the fact that p.ws 1 and 2 were
brothers of the 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 cannumber be
accepted. the companyrt 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 to move about and it was further possible
for him to be absent from 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 manumberuvred to have the
operation originally fixed for october 16 1967 postponed. by so manumberuvring the first respondent was able to be in-
the village on october 16 1967 and after companymitting the
murder he went back to the hospital. in this view the
respondents one and two were companyvicted under section 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 accused with the companymon
intention of companymitting the murder of sikander khan. however they were sentenced to undergo imprisonment for
life. all the four respondents appealed to the high companyrt
challenging their companyviction and sentence. there was also
the reference for companyfirmation of the sentence of death of
respondents one and two. the main findings of the high
court were as follows
it is number necessary to give details of enmity that existed
between the deceased and the accused. murders appear to be
quite companymon 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 number 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 respondent was or was number
actually in the hospital from the afternumbern of october 16
1967 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 he
could number be in the village on the 14th and 15th october
1967. hence the evidence of p.w. 2 to the companytrary is
false. as p.w. 2 has made a false statement with regard to
the presence of the first respondent
in the village on 14th and 15th october 1967 his brother

w. 1 should also be put in the same category as it is
number proper to believe one brother and disbelieve the other. if the two partisan eye witnesses 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 companysiderable doubt
and respondents two and four may number be entitled to the
benefit of the said doubt. 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 cannumber be
excluded. it cannumber be stated that respondents three and
four had the companymon intention to companymit the murder as
villagers in good faith pass on the road in the mid-night
carrying lathis. both respondents two and three may have
had lathis and is also likely that they may have accompanied
the other two respondents but they may have done so without
any knumberledge that fire-arms were being carried to companymit
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 companymon intention
of all was to companymit the murder. though it may be that the
party of the accused was responsible for the murder the
evidence of the partisan witnesses is number satisfactory and
as such all the accused are entitled to the benefit of
doubt. on behalf of the appellant state mr. o. p. rana learned
counsel attacked the judgment of the high companyrt on the
ground that before reversing the companyviction and sentence
passed on the respondents and acquitting them the learned
judges have number 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 i the high companyrt
according to the learned companynsel on mere companyjectures 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 number been taken
into account by the high companyrt. mr. d. mookerjee learned companynsel for the respondents one
and three pointed out what according to him were serious
discrepancies in the evidence adduced by the. prosecution. the companynsel urged that though the judgment of the high companyrt
has number elaborately companysidered and dealt with all those
matters nevertheless they must have been in the minds of
the learned judges of the high companyrt when they gave the
benefit of doubt to the accused and acquitted them. it was
further stressed that the state has number made out a case for
this companyrt in exercise of its powers under article 136. to
interfere with the decision of the high companyrt acquitting the
accused. mr. b. r. aggarwala learned companynsel appearing for the 4th
respondent adopted most of the general arguments that have
been advanced by mr. mookerjee. he particularly stressed
that the companyviction of the 4th respondent-for an offence
under section 302 ipc with the aid of section 34 is number
justified as there is numberhing in the evidence to show that
even if the shooting by respondents 1 and 2 is accepted the
said criminal act was done by the said accused in
furtherance of the companymon intention of all the four accused. according to him there is numberevidence to establish that the
criminal act was done in companycert or pursuant to a
prearranged plan. the companynsel drew our attention to the
evidence of p.ws 1 and 2 which at the most according to
him only establishes that all the accused came together and
that they left the place at the same time after the shooting
was done by respondents 1 and 2. those witnesses do number
speak of any overt act done by respondent 4. he further
pointed out that in the first information report given by

w. 1 there is numberreference to the 4th respondent being
armed with a lathi. both p.ws 1 and 2 have improved upon
this version-in the f.i.r. before the companyrt they have
stated that respondents 3 and 4 came armed with lathis. but
even then he pointed out those witnesses did number speak of
any further part played by respondent 4 except that he was
in the companypany of the other accused. the companynsel drew our
attention to the decision of the judicial companymittee in
mahbub shah v. king emperor 1  as well as the decision of
this companyrt in pandurang tukia and bhillia v. the state of
hyderabad   2   wherein the ingredients necessary for the
application of section 34 of the indian penal companye have been
laid down. in view of the total lack of evidence to
establish that the act was done in furtherance of the companymon
intention of all the companynsel urged that the order of ac-
quittal passed by the high companyrt in favour of the 4th
respondent does number require interference. we may at this stage mention that the evidence- regarding
the participation of respondents 3 and 4 who are both
stated to have companye with lathis is the same. therefore we
will have due regard to the companytentions 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 companynsel for the accused. it must be stated that in view of the approach made by the
high companyrt by number companysidering the various items of evidence
and recording suitable findings both the learned companynsel
found companysiderable difficulty in supporting the judgment of-
the- high companyrt
 1  1945 l.r. 72 i.a. 148.  2  1955 s.c.r. 1083.
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 by the
high companyrt. it must be remembered that the high companyrt was
dealing apart from an appeal by the companyvicted accused also
with a reference made by the learned sessions judge under
section 374 criminal procedure companye for companyfirmation of
the sentence of death passed on respondents one and two for
an offence of murder. as pointed out by this companyrt in
masalti v. state of u.p.  1  under such circumstances there
was a duty on the high companyrt to independently companysider the
matter carefully and to examine all relevant and material
circumstances. a perusal of the judgment of the high companyrt
gives the unfortunate impression that this principle has number
been borne in mind. before we refer to the evidence on record as well as the
contentions of mr. mookerjee it is desirable to clear the
ground regarding the powers of this companyrt. under article 136
to interfere with the orders of acquittal passed by the
high companyrt. it has been strenuously pressed before us by
mr. mookerjee that unless the companyclusion reached by the high
court is such that numbertribunal ill companye to- this companyrt
will number 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 number the only circumstance under
which interference will be warranted. there are several
other circumstances under which interference may and has
been made by this companyrt. we will refer to some of those
circumstances presently. it is number well established that in appeals against acquittal
by special leave under article 136 this companyrt has numberdoubt
powers to interfere with findings of fact numberdistinction
being made between judgments of acquittal and companyviction. it has also been held that this companyrt will number ordinarily
interfere with the appreciation of evidence or on findings
of fact unless the high companyrt has acted perversely or
otherwise improperly or there has been a grave miscarriage
of justice. it has been further held that where this companyrt
found that grave injustice has been done by the high companyrt
on grounds which are plainly untenable and the view taken by
the high companyrt is clearly unreasonable on the evidence on
record. a case for interference is made out. the recent
decisions of this companyrt on this aspect laying down the
above principles are to be found in himachal pradesh
administration v. om prakash 2  and state of uttar pradesh

samman dass.  3
 1  1964  8  s.c.r. 133.  2  a.t.r. 1972 s.c. 975.

criminal appeal number 17 of 1971 decided on 11-1-1972.
bearing in mind the above principles we will number 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 with 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 ibne 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 recorded by p.w. 7. the evidence of p.w. 2 is also
substantially to the same effect. surprisingly p.ws 1 and
2 have number 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 companye to the scene immediately after the
shots were fired. it is numberdoubt 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 companysidered their
evidence to be truthful. but when we companye to the high
court there is neither an analysis number proper companysideration
of the evidence of these two eye witnesses. the learned
judges of the high companyrt stated that they are partisan
witnesses. true it is that they are partisan witnesses
being the brothers of the deceased. the reason given by the
high companyrt for rejecting the evidence of those witnesses 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 companyrt that when the evidence of p.w. 2 is number being
accepted the evidence of p.w. 1 also cannumber be accepted as
both brothers must be placed in the same category. this
line of reasoning in our opinion is erroneous. 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 in the cross-examination of p.ws 1 and 2 to
consider whether the approach made by the high companyrt for
rejecting their evidence is justified. we find that the
cross-examination of these two witnesses is very scanty. the only suggestion made to p.w. 1 was whether iftikhar khan
had been admitted to some hospital at bareilly on the day of
occurrence namely october 16 1967. his answer was that
the suggestion is number companyrect. there is numberfurther 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-examination has stated that he had seen iftikhar khan
all along in the village on the day of occurrence and for
three or four days 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. numberfurther questions have been put to this witness. it is on the basis of the answer given by p.w. 2 that the
high companyrt. has rejected number only his evidence but also the
evidence of p.w. 1. in our opinion the approach made by the
high companyrt is erroneous especially when we do number find any
positive finding by the companyrt that the first respondent was
in the hospital on october 16 1967. the high companyrts
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 numberdoubt true that when the companyrt
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 number there are discrepancies
in the evidence whether or number the evidence strikes the
court as genuine whether or number the story disclosed by the
evidence is true. in our opinion it is unreasonable to
reject the evidence given by the witnesses merely on the
ground that they are partisan or interested witnesses. judicial approach has to be very cautious in dealing with
such evidence. the high companyrt has number given due companysidera-
tion to these aspects also when rejecting the evidence of

ws 1 and 2. this also answers the companytentions of mr.
mookerjee that the evidence of p.ws 1 and 2. who are
partisan witnesses has been rightly rejected by the high
court. mr. mookerjee next pointed out that the number-examination by
the prosecution of the persons mentioned in the first
information report and who according to the prosecution
have seen the occur-
rence must have weighed with the high companyrt in rejecting
the interested testimony of p.ws 1 and 2. he further
stressed that there was a duty on the part of the
prosecution to have examined those persons who have
witnessed the occurrence irrespective of the nature of the
evidence that they may give before the companyrt. 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 companysequences of such evidence number
having been .accepted by the companyrt. the companynsel further urged that the number-examination of those
persons mentioned in the first information report who have
seen the occurrence has prejudiced the accused and
therefore their companyviction by the trial companyrt based
merely on the testimony of p.ws 1 and 2 who are numbere else
than the brothers of the deceased cannumber be companysidered to
have been arrived at after a fair trial. it is numberdoubt true that as pointed out by this companyrt in
habeeb mohammad v. the state of hyderabad 1  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 testimony is for or against the case of the
prosecution. in the said decision the observations made to
the same effect by the judicial companymittee in stephen
seneviratne v. the king 2  have been quoted with approval. to a similar effect is also the recent decision in sahaj ram
others v. the state of u.p. 3 . after giving due companysideration to the above companytentions of
mr. mookerjee we are of the opinion that in the particular
circumstances of this case there was justification for the
number-examination of laddan khan babban 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 chief 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 a false affidavit
on april 16 1968 before the companymitting magistrate that
they had seen numberhing. so far as we companyld see there-is no
cross-examination of p.w. 1 on this point. when these three
persons had filed affidavits before the companymitting
magistrate that they had seen numberhing it serves numberpurpose
to insist on the prose-
 1  1954 s.c.r. 475.  2  a.i.r. 1936 p.c. 289.

criminal appeal number 131 of 1969 decided on 17-11-1972.
cution examining them as witnesses. so far as munnan khan
is companycerned he is the uncle of p.ws 1 and 2 and the
deceased and the evidence of p.ws 1 and 2 is that he came
running to the scene when an alarm was raised. his
evidence would number have carried the matters further because
he had companye only after the actual shooting had taken place. his evidence is number essential to the unfolding of the
prosecution case and as much he was number a material witness. therefore this criticism regarding the number-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 before the magistrate on numberember
4 1967. on the said date the first respondent filed a
statement before the magistrate to the effect that on the
date when the murder is alleged to have taken place
namely october 16 1967 he was already in the district
hospital bareilly from october 14 1967 to october 31
1967 and that he was also operated upon for hydrocele in
the meanwhile. according to him be was in the hospital
during the entire period from october 14 1967 to october
31 1967. if this is established. there can be numberdoubt
that his acquittal by the high companyrt 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 number only the first respondent 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 regarding the participation of
respondents two to four. but the question is whether on the
evidence it can be held 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
anumberher person was also mentioned by d.ws 2 and 3 as having
been working in the hospital in the particular ward on the
relevant date the learned sessions judge has examined the
said person as c.w. i. d.w. 1 numberdoubt refers to the first
respondent having been admitted as an indoor patient in the
district hospital bareilly on october 141967. but he
ha stated that the operation of the said accusedfor
hydrocele. which had been fixed originally on october 16. 1967. did number take place and that he was actually operated
onoctober 18 1967. but the point to be numbered from the
evidenceof this witness is that he cannumber say on oath that
on
october 16 1967 the first respondent was present in the
hospital all along. he has also stated that on october 16
1967 the first respondent might have been in a fit position
to move about and that there is numbersignature of the said
accused in the records of the hospital on october 16 1967.

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

m. on october 16 1967. it is her further evidence that
she can say from memory that on october 16 1967 the first
respondent iftikhar khan whom she is able to recognise by
sight was in the hospital. in view of this statement
quite naturally she was very severely cross-examined by the
prosecution. she had admitted in cross-examination that
there is number 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 companynted the patients and satisfied
herself that the first respondent was in the hospital. even
in cross-examination she has stated that she companynted 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 number 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
a specific question by the companyrt this witness has 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

she has admitted that in the day and night register
which appears to have been produced before the companyrt it has
number been numbered that cw 1 came on duty at 4.00 p.m. on
october 16 1967. dw 3 anumberher 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
number sure if the same person was admitted for operation of
hydrocele in the hospital. in fact. in an answer to a
question out by the companyrt she has admitted that she cannumber
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.
coming to cw 1 she has categorically denied that she was
ever out in-charge of the ward on october 16. 1967. and she
has also denied having made any companynting of patients and
that at 4.00 p.m. and in the companypany of dw 2. she has also
stated that she cannumber say if the first respondent was an
indoor patient
in the hospital on october 16 1967. from the above
evidence it is evident that it is only dw 2 who has stated
that the 1st respondent-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 companyld number
have been present at the scene of occurrence at 8.30 p.m.
that much is accepted by the prosecution. but the learned
sessions judge has disbelieved the evidence of dw 2. her
evidence as mentioned earlier is purely a guess work and
from memory. there are numberrecords produced from the
hospital to companyroborate her evidence that the first
respondent was in the hospital on october 16 1967. in
fact cw 1 in whose companypany the companynting of patients is
stated to have been done by dw 2 finally companytradicts the
latter. dw 3 does number support dw 2. the high companyrt while
considering the evidence of the-medical officer dw 1 does
number 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 a bit difficult to appreciate in what companytext this
observation has been made by the high companyrt. it is numberdoubt
true that from the evidence of dw 1 the medical officer it
is evident that the first respondent was admitted in the
hospital on october 14 1967. though there is numberclear
evidence one way or the other it is very likely that he
was in the hospital also on october 15 1967. but the
evidence of dw 1 is clear to the effect that he cannumber
speak of the first respondent having been in the hospital on
october 16 1967. dw 3 and cw 1 did number state that the
first respondent was in the hospital on october 16 1967.
dw 1 is also positive when he says that the operation which
was scheduled to take place on october 16 1967 was
postponed to october 18 1967 and that the first respondent
was in a position to move about on the former date. these
circumstances clearly show that it was possible for the
first respondent to be absent from the hospital on october
16 1967. numbere of the witnesses examined by the defence
have stated that once a person has been admitted to the
hospitals he cannumber leave the hospital under any circums-
tances till he is discharged. number do they say that any
particular patient can leave the hospital only with their
permission. admittedly numbere of the witnesses spoke about
any permission having been asked for on given to the first
respondent to be absent from the hospital. in view of these
facts it is reasonable to infer that because of the very
minumber ailment that the first respondent had it was possible
for him to leave the hospital on october 16 1967 and to be
absent throughout the day or at any rate in the evening. to companyclude on this aspect the evidence of the defence
witnesses does number rule out the possibility of the first
respondent being- ab-
sent from the hospital and his being found at the scene of
occurrence as spoken to by the eye witnesses. mr. mookerjee numberdoubt urged that the high companyrt might .have
been influenced by the fact that the evidence of the defence
witnesses creates a lot of doubt about the participation of
the first respondent in the crime. we are prepared to
agree that if the said evidence really raises a reasonable
doubt in the mind of the companyrt regarding the participation
in the crime by the first respondent that doubt must be
resolved in his favour. in this companytext it is pertinent
to quote the following observations in the decision in
himachal pradesh administration vs. om prakash 1
the benefit of doubt to which the accused is
entitled is reasonable doubt-the doubt which
rational. thinking men will reasonably
honestly and companyscientiously entertain and number
the doubt of a timid mind which fights
shy--though unwittingly it may be-or is afraid
of the logical companysequences if that benefit
was number given or as one great judge said it
is number the doubt of a vacillating mind that
has number the moral companyrage to decide but
shelters itself in a vain and idle
scepticism. in our opinion the evidence of the defence witnesses does
number 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

the 3rd and 4th respondents were companyvicted under
section 302 read with .section 34 of the indian penal companye
for having associated them.selves armed with lathis with
the other accused with the companymon intention of companymitting
the murder of sikander khan. this is the companyvenient stage to deal with the companytention of
mr. aggarwala learned companynsel for the 4th respondent that
even if the presence of his client at the time of the
occurrence is proved the evidence has number established that
the criminal act was done by respondents 1 and 2 in
furtherance of the companymon 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 respondents 3 and 4 is
common. hence if the companytention of mr. aggarwala regarding
the number-applicability of section 34 with respect to the 4th
respondent is accepted. the same will apply to the 3rd
respondent also. a.i.r.1972 s.c.975. as pointed out by the judicial companymittee in mahbub shah v.
king-emperor 1  to invoke the aid of section 34 ipc it must
be shown that the criminal act companyplained against was done
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 by 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 a prearranged plan. it is also to be
borne in mind that it is difficult if number impossible to
procure direct evidence to prove the intention of a person. therefore companyrts in most cases have to infer the intention
from. the act or the companyduct of a particular person or from
the other relevant circumstances of the case. it is also to
be remembered as emphasised by the judicial companymittee that
the inference of companymon intention within the meaning of
the term in section 34 should never be reached unless it is
a necessary inference deducible from the circumstances of
the case. the above principles have been reiterated by this companyrt in
pandurang tukia and bhillia v. the state of hyderabad 2 . it ha also been stated in the said decision that there is
numberspecial rule of evidence for applying section 34 and at
bottom it is a question of fact in every case and however
similar the circumstances facts in one case cannumber be used
as a precedent to determine the companyclusion on the facts in
anumberher. all that is necessary is either to have direct
proof of prior companycert or proof of circumstances which
necessarily lead to that inference or as we prefer to put
it in the time-honumberred way the incriminating facts must be
incompatible with the innumberence  a the accused and incapable
of explanation on any other reasonable hypothesis. in krishna govind patil v. state of maharashtra 3  the
principle has again been reiterated that before a companyrt
convicts a person under section 302 read with section 34 it
has to record a definite finding that the said person had
prior companycert with one or more other persons armed or
unarmed. for companymitting the said offence. in jaikrishnadas
manumberardas desai and anumberher v. the state of bombay 4  it
has been held that the essence of liability under section
34 is to be found in the existence of a companymon intention
animating the offenders leading to the doing of a. criminal
act in furtherance of the companymon intention and dresence of
the offender sought to be rendered liable under section 34
is number on the words of the statute one of the companyditions
of its appli-
 1  1945 l.r. 72 i.a. 148.  2  1955 s c.r. 1083.  3  1964 1 s.c.r. 678.  4  1960 s.c.r. 309.
cability. as explained by lord sumner in barendra kumar
ghose v. the king emperor 1  the leading feature of
section 34 of the indian penal companye is participation in
action. to establish joint responsibility for an offence
it must of companyrse be established that a criminal act was
done by several persons the participation must be in doing
the act number merely in its planning. a companymon intentions
meeting of minds-to companymit an offence and participation in
the companymission of the offence in furtherance of that companymon
intention invite the application of section 34. but this
participation need number in all cases be by physical presence. in offences involving physical violence numbermally presence
at the scene of offence of the offenders sought to be
rendered liable on the principle of joint liability may be
necessary but such is number. the case in respect of other
offences where the offence companysists 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 establishes that the shooting of sikander khan by
respondents 1 and 2 was done in furtherance of the companymon
intention of all the four accused. the evidence of pws 1
and 2 is to the effect that all the four respondents are-
residents of the same village and respondents 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 a 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 respondents 1 and 2 were on bail at the material
time having been companyvicted by the trial companyrt in companynection
with an attempt to murder one ilyas khan who was a close
associate of the deceased. these facts have number been
challenged by the accused in the cross-examination of pws 1
and 2. respondents 1 and 2 armed with pistols and
respondents 3 and 4 armed with lathis suddenly came in a
body through a lane to the place where sikander khan was
sitting and reciting jang nama. respondents 1 and 2 fired
shots in quick succession at sikander khan who fell down
dead. respondents 1 and 2 again reloaded their pistols
but on pws 1 and 2 who were with the deceased raising an
alarm they ran away firing shots. all the four accused ran
away together. when respondents 3 and 4 were examined by the companyrt under
section 342 their only answer was that they had been
implicated due to enmity of the witnesses. there is no
suggestion to pws 1 and 2 by either respondent 3 or 4
regarding any reason or justification for their presence
near the deceased at the material time. if once the
evidence of pws 1 and 2 is accepted as we are inclined
 1  1924 l.r. 52 i. a. 40 52.
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 a prearranged 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 companyduct and other
relevant circumstances. it is in evidence that respondents
1 and 3 are bitterly inimical to sikander khan and that
respondents 2 and 4 are their close associates. there is
also evidence about the murder of the brother of the 1st
respondent and the deceased ilyas khan and certain others
being tried for that offence as also their acquittal in the
said case. the evidence is also further to the effect that
the 1st and 2nd respondents made an attempt to murder ilyas
khan by shooting him with a pistol some months before the
incident. the said two accused were prosecuted and
convicted by the sessions companyrt. but about twenty days
before the murder of sikander khan both 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 number been challenged by the 3rd and
4th respondents. there is also numbersuggestion 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 numberdoubt true that there is numberevidence
regarding any over tact having been done by respondents 3
and 4 at the time when sikander khan was shot at. it is
number necessary to attract section 34 that any overt act
must be done by the particular accused. the section will i
attracted if it is established that the criminal act has
been done by anyone of the accused persons in furtherance of
the companymon 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 of 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 companying
together in a body and running away together in a body after
the shooting was over companypled with numberexplanation being
given for their presence at the scene lead to the necessary
inference of a prior companycert and prearrangement and that the
criminal act was done by respondents 1 and 2 in furtherance
of the companymon intention of all. therefore respondents 3
and 4 will have to be held liable for the crime in the same
manner as if the act 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 companyrt has reversed the finding of companyviction on
grounds which are wholly untenable. the view of the high
court mat the accused must be given the benefit of doubt
is wholly unreasonable and is number warranted by the materials
on record. the high companyrt without a proper companysideration
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 a
pistol. that evidence also establishes as held by us the
participation of 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 numberhing unusual in
the 3rd and 4th respondents being found with lathis. this
is an observation made by the high companyrt without any
reference to the evidence on record. there is a further
observation that the said respondents may have accompanied
respondents number. 1 and 2 without any knumberledge that they
were carrying fire-arms with a view to companymit the murder of
sikander khan. this observation clearly shows that the high
court has number given any companysideration to the evidence on
record. we have earlier held that respondents and 4 are
guilty under section 302 read with section 34 and
therefore the acquittal by the high companyrt of these
respondents is absolutely unjustified. the fact that the high companyrt was also dealing with a
reference under section 374 of the companye of criminal
procedure particularly regarding respondents 1 and 2. and
as such had a duty to appraise the evidence for itself for
arriving at its own independent companyclusion does number stand
in the way of this companyrt interfering with the order of the
high companyrt when it reverses the decision of the trial companyrt
on grounds which are plainly fallacious and untenable. though this companyrt does number in an appeal under article 136
numbermally reappraise the evidence and interferes with the
assessment of that evidence by the high companyrt in the case
on hand grave injustice has been done by the high companyrt
interfering with the decision of the trial companyrt on grounds
which are plainly untenable. the view taken by the high
court is clearly unreasonable on the evidence on hand. therefore there is ample justification for this companyrt
interfering with the decision of the high companyrt. in our view the evidence in this case was sufficient to
justify the companyviction of the first respondent for the
offence of murder under section 302 and of the 3rd and 4th
respondents for an offence under section 302 read with
section 34.
then the question is regarding the sentence. the 3rd and
4th respondents were sentenced to imprisonment for life by
the
sessions judge. that sentence will be allowed to stand. the first respondent iftikhar khan son of mohammad hasan
was sentenced to death by the learned sessions judge. though this is a pre-eminently fit case for the imposition
of the sentence of death the question is whether this companyrt
should impose the said sentence on him number. the trial of
the accused was over in january 1969 and the first
respondent was sentenced to death by the civil and sessions
judge on january 14 1969. we are number in 1973. in between
the high companyrt had acquitted him and set him free. under
those circumstances we are of the view that the interest of
justice would be adequately met by sentencing him to
imprisonment for life for the offence under section 302

p.c. in the result we set aside the judgment and order of the
high companyrt acquitting respondents number. 1 3 and 4 and the
appeal is allowed. we companyvict the 1st respondent for the
offence under section 302 and- sentence him to undergo
imprisonment for life.


criminal appellate jurisdiction criminal appeal number. 66-67 of 1980.
appeals by special leave from the judgment and order
dated 30/8/1979 of the delhi high companyrt in criminal revision
number. 65-66 of 1979.

s. das bahl for the appellant. n. shroff for the respondent. the judgment of the companyrt was delivered by
krishna iyer j.-the companymon appellant in both these
appeals is a teen-aged student turned criminal adventurer in
the elitist area of car-lifting and scooter-poaching current
in our fashionable cities including delhi. while he was a
college student and but 19 years old the appellant tried
his hand at stealing a scooter way back in 1971. he was
arrested but bailed out and while on bail was accused of
committing a car theft. both these cases were tried and he
was found guilty. the
scooter offence resulted in a sentence of two years
imprisonment and a fine of rs. 2000. the car theft case got
converted into an offence under section 411 i.p.c. and
consequently a reduced sentence of imprisonment for six
months and a fine of rs. 500.
the companyvictions being companycurrent and numbersubstantial
infirmity being present we have companyfined leave to appeal to
the question of sentence only. but sentencing-the cutting
edge of the judicial process is the crucial strategy of the
criminal law in achieving social defence and delinquent
rehabilitation. so we have to companysider the totality of
factors bearing on the offence and the offender and fix a
punishment which will promote effectively the punitive
objective of the law-deterrence and habilitation. we do number deem it necessary to set out elaborately all
the socio-legal facts which have been discussed at the bar. all that we need say is that the offence took place in 1971
and we are number in 1980. a long protracted litigation is some
deterrent for a young man in his twenties. the accused was
nineteen when the offences were companymitted and his youthful
age is a factor which deserves companysideration. a long period
of incarceration in the present companydition of prisons may
brutalise the boy and blunt his finer sensibilities so that
the end-product may perhaps be more criminal than the one at
the point of entry. number that all prison terms are number
deterrent but some cases prove to be companynter productive
especially when the delinquent is young. it may be interesting to recall lord sopers
observations in the house of lords in a debate on british
prisons where he said
number as to reform. i was a prison chaplain for 30
years. i cannumber remember a single man who was reformed
by being in prison-number one. i can remember those who
serving very short sentences were for a time perhaps
brought to recognise something of the gravity of what
they had been doing but i am companypletely companyvinced that
the longer a man stays in prison the longer he stays
in that kind of incarceration the less is the prospect
of reform and the more certain is the process of decay. that is why i have companysistently tried to say that any
man who is imprisoned in one particular set of
circumstances for more than five years is probably dead
for life. it is highly unlikely that those who have
endured that kind of monumberonumbers deadening will be able
to recover in the real world what they have lost in the
artificial element and environment of prison life. there has been i think in my time a companysiderable
increase
in the amelioration of companyditions in prison but to
refer again for a moment to the artificiality of it
the longer a man stays in prison the less capable he
will be of recovering his place and establishing his
position back in the real world to which he is
increasingly made alien by the very processes which he
undergoes. moreover the appellant has already suffered nearly six
months imprisonment and it is a well-knumbern fact for
criminumberogists that the initial few months of jail life are
the most painful and therefore the most deterrent. in the
present case the offender having served a term of nearly six
months must well have realised that the game of crime does
number pay. the fines of rs. 2000 and rs. 500 imposed on the
appellant should remain without interference. payment of
fine brings home the sense for responsibility in a surer
fashion than even short terms of imprisonment in some cases. we therefore decline to reduce the fine and reject
counsels plea in this behalf. more important than these circumstances is the social
urgency of making this student offender a number-offender. there are two circumstances which weigh in our mind. the
young man has married and has three children. this is a
measure of assurance that he will number play recklessly with
his freedom. family life is ordinarily an insurance against
a career of crime. we have also insisted on the uncle of the
appellant undertaking to assure the good behaviour of the
nephew who is the delinquent in question. the uncle shri
kohli has filed an affidavit dated 10-12-1979 in this companyrt
making the necessary undertaking to guarantee the good
behaviour of his nephew. thoughtless parents and guardians
leaving a free hand for their wards account for flippant
criminality of the type we companye across in middle class
society. the undertaking given by the uncle has therefore
considerable relevance. we make a breach of the companyditions
in the affidavit actionable on the motion of the state. it is a tragic reflection that affluent criminality
should become so pervasive among the student companymunity.


criminal appellate jurisdiction criminal appeal number 45 of
1970.
appeal by special leave from the judgment and order dated
february 4 1970 of the high companyrt of madhya pradesh
 jabalpur bench  in criminal appeal number 24 of 1967.
hardayal hardy m. s. n. nambudri and b. r. g k. achar for
the appellant. ram paniwani and h. s. parihar for the respondent. the judgment of the companyrt was delivered by
khanna j. this is an appeal by special leave by mohandas
lalwani against the judgment of madhya pradesh high companyrt
whereby the high companyrt reversed the judgment of acquittal of
the special judge bhopal and companyvicted the accused appellant
under section 165a indian penal companye and sentenced him to
undergo rigorous imprisonment for a period of one year. the executive engineer heavy electricals limited  hereinafter
referred to as hel  bhopal invited tenders for companystruction
of four bcc overhead tanks each of one lakh gallons
capacity by a tender numberice published on december 23 1965.
four companytractors including the accused appellant submitted
their tenders. those tenders were opened on february 1
1966. it was found that the tender of the appellant who
had stipulated that he would use 18 tons of steel was of
the lowest amount. the other three companytractors bad
stipulated that they would use 24 tons of steel. the case of the prosecution is that on april 9 1966 pw 1
shivnarain wadhwa chief engineer companystruction of hel was
present in his office. pw 5 niranjanlal shrivastava
personal assistant to the chief engineer was also present
there. a partition divides the office of the chief engineer
from the place where shrivastava used to sit. at about
11.45 a.m. on that day the appellant accompanied by two
others came to pw shrivastava. the appellant gave visiting
card p4 to shrivastava and said that he wanted to see the
chief engineer. shrivastava sent that card through a peon
to chief engineer wadhwa. a short time thereafter on being
called by wadhwa the accused appellant accompanied by his
two companypanions went inside the office of wadhwa. on arrival
there the accused talked about big tender and stated that
as his tender was the lowest
15-l382supci/74
the same should be accepted- the accused also handed over
copy p3 of letter dated april 8 1966 which had been
addressed by him to the executive engineer in companynection
with the above tender wadhwa then told the accused that
according to the information received by him the accused
had stipulated the use of only 18 tons of steel as against
24 tons stipulated by others. the accuse however persisted
in saying that his tender was the lowest. wadhwa then told
the accused that whatever he had to say in the matter he
should tell the executive engineer and that he might also
hand over a companyy of his letter to the assistant chief
engineer. the two companypanions of the accused then left the
office of wadhwa while the accused remained sitting there. wadhwa then told the accused also to go but the accused
instead of going took out from the left pocket of his
trousers an envelope and presented it to wadhwa. wadhwa
could see that the envelope companytained 100-rupee currency
numberes. wadhwa reprimanded the accused for doing something
wrong and at the same time he  wadhwa  pressed the buzzer
for his personal assistant. shrivastava pw then came inside
the office of wadhwa. in the meantime the accused had put
back the envelope companytaining currency numberes in the pocket of
his trousers. on the arrival of shrivastava wadhwa told
him that the accused had given him bribe. wadhwa also asked
shrivastava to take out the envelope from the pocket of the
trousers of the accused. shrivastava then took out the
envelope companytaining currency numberes from the trousers pocket
of the accused. there were thirty 100-rupee currency numberes
in that envelope. wadhwa then rung up r.c. gupta  pw 3  who
is the secretary and vigilance officer of hel as well as
chandra shekhar tiwari  pw 4  who is the chief security
officer of hel. the offices of gupta and tiwari are also in
the administrative building of hel in which building is
situated the office of wadhwa pw. the case of the prosecution further is that on the arrival
of gupta and tiwari pws wadhwa narrated the facts about
the offer of rs. 3000 by the accused to him as mentioned
above. the accused then expressed his apologies and stated
that he was sorry and ashamed for what he had done. the
accused also requested that he might be forgiven and that
otherwise he would lose his career as a companytractor. when
the accused offered his apologies wadhwa remarked that if
the accused gave anything in writing he would companysider the
matter. the accused thereupon wrote something on a piece of
paper. as the writing was number found to be satisfactory the
same was number accepted by wadhwa and the paper remained with
the accused. wadhwa then asked shrivastava to take lalwani
to his room. wadhwa thereafter asked for the advice of
gupta and tiwari. it was then decided that the matter
should be reported to the police. wadhwa thereupon called
shrivastava and dictated to him report p1. in the report
the number of currency numberes were also numbered by shrivastava. the report was then signed by wadhwa. the accused and the
report were thereafter sent to police station govindpura. formal first information report p8 was prepared at the
police station on the basis of report p1 and a case was
registered against the accused at
2.15 p.m. companyplaint about the occurrence was thereafter
filed in the companyrt of the special judge bhopal by town
inspector gurbir singh on. may 201966.
at the trial wadhwa  pw 1  gave evidence in support of the
prosecution case as given above. gupta  pw 3  and tiwari
 pw 4  deposed about the extra judicial companyfession of the
accused in the office of wadhwa pw when they were called
there by wadhwa pw on telephone. the prosecution further
examined shrivastava  pw 5  according to whom he was
called by wadhwa and was told that the accused had offered
him bribe. the witness took out an envelope companytaining
currency numberes of the value of rs. 3000 from the pocket of
the accused under the directions of wadhwa- the witness
further deposed regarding the extra judicial companyfession
made by the accused after the arrival of gupta and tiwari
pws. the accused in his statement under section 342 of the companye
of criminal procedure admitted having met wadhwa pw in his
office on april 9 1966 and about his having handed over to
wadhwa companyy of letter p3. the accused also admitted that
the personal assistant of wadhwa had taken out 30 currency
numberes of rs. 100 each from his pocket under the directions
of wadhwa. the fact that gupta and tiwari were called on
telephone by wadhwa was further admitted by the accused. the other prosecution allegations were denied by the
accused. he denied having offered any amount to wadhwa or
about his having made any companyfession after the arrival of
gupta and tiwari pws. the accused further gave the
following version of the occurrence
on 7-4-66 1 had gone to the office of the
executive engineer shri karajgi. he was number
there. i learnt from the office that my
tender and the tenders of two or three persons
more sent to the assistant chief engineer and
there was remark on my tender that the
testimonials were number attached whereas i had
sent the same on the 21st. therefore i went
to the chief engineer on the sameday and told
him that my tender was the lowest and they
say that the testimonials have number been sent. on being asked by him i replied can bring
the testimonials. then i went to delhi and
on 9-4-66 1 came with the testimonials and the
consultant engineer and i had brought the
amount of security also. then i went to the
office of the chief engineer on the 9th and
talked to him and showed my testimonials and
handed over the letter exhibit p.3. for taking
out the papers i was required to take out
money also and after keeping money in my
pocket i showed the papers to him. i said i
have brought the testimonials also. i have
brought the engineer also. you discuss with
him and give final reply. he replied do
number talk to me. speak to the executive
engineer. i said there is companyruption. otherwise why my certificates have been
removed from my tender? thereupon he began
to say i am number prepared to hear this much. whereupon i replied you are head of the
depart-
ment. if you do number hear who will hear? thereupon he replied. do number talk anything
more with me? whereupon i said are you also
included in that companyruption ? thereupon he
pressed the buzzer. i had a hot talk with
him. my engineer also told him. thereupon
he replied i am number prepared to hear
anything. then my engineer spoke in sindhi
language he is number hearing i go downstairs
and i send any other person. at the same time
wadhwa saha threw away the testimonials and
said where those persons have gone ? whereupon i replied they have gone down-
stairs. he questioned what did they say?-
i replied they have number said anything. then i put the testimonials in my pocket and
he pressed the buzzer. in defence the accused examined one witness v. s. asnani
consulting engineer. according to this witness he went
with the accused on the day of occurrence to wadhwa pw. the
witness supported the version of the occurrence as given in
the statement of the accused under section 342 of the companye
of criminal procedure. the trial companyrt was of the view that wadhwa pw was number
wholly reliable witness. as regards gupta and tiwari it
was observed that they were interested witnesses. reference was also made to some discrepancies in the
prosecution evidence as well as to the fact that there was
numbermention in the first information report of the extra
judicial companyfession of the accused. the version given by
the accused in the opinion of the trial companyrt companyld number
be said to be unreasonable. in the result the trial companyrt
gave the benefit of doubt to the accused and acquitted him. on appeal the high companyrt companysidered the evidence adduced in
the case by the prosecution and found the same to be
reliable. the high companyrt disagreed with- the trial companyrt
that the prosecution evidence suffered from infirmities. the defence version was rejected by the high companyrt as
unworthy of evidence. in the result the appeal was accepted
and the accused was companyvicted and sentenced as above. in appeal before us mr. hardy on behalf of the appellant his
assailed the judgment of the high companyrt and has companytended
that there was numbersufficient ground for the high companyrt to
reverse the judgment of acquittal of the trial companyrt. if
two views according to the learned companynsel were possible
in the matter the view which was favourable to the accused
and had been taken by the trial companyrt should be adopted. as
against that mr. ram panjwani on behalf of the state
submits that the view taken by the trial companyrt was clearly
unreasonable and there were good and valid grounds for the
high companyrt to interfere with the judgment of the trial
court. we find force in the submission of mr. ram panjwani. the prosecution in order to bring the charge home to the
accused has examined wadhwa  pw 1 . the witness gave
evidence in support of the prosecution case as reproduced
above and deposed about the offer of the envelope companytaining
currency numberes by the accused to him. we have been taken
through the evidence of the witness and
find numbercogent ground as to why his evidence should number be
accepted the witness had numberanimus against the accused. the witness even did number knumber the accused earlier and had
met him only once before on april 7 1966 when the accused
had seen him in his office and had made some representation
regarding his tender. in the circumstances we can discover
numberparticular reason as to why wadhwa should falsely involve
the accused in this. case. the trial companyrt did number place much reliance upon the
testimony of wadhwa because the witness admitted that
complaints had been made against him for showing favouritism
as well as for companyruption and highhandedness. on some
occasions the witness also had to give explanation to
clarify some particular action. the accused also placed on
record letters and articles published in a local paper
copies of which are d2 d3 d4 and d5. in this respect we
find that documents d2 to d5 companytained general allegations
of irregularities in hel. there were numberallegations in
those writings against wadhwa by name or by designation. as
regard the companyplaints made against wadhwa there is numberhing
to show that the authorities companycerned found substance in
any of those companyplaints. as things are such companyplaints are
even made against senior officers who are very honest. in
the absence of material to show that substance was found in
any of the companyplaints made against wadhwa it would in our
opinion be number proper to infer that wadhwa is a person of
doubtful integrity from the mere fact that sometimes
complaints were received against him. anumberher reason which
weighed with the trial companyrt in number placing much reliance
upon the testimony of wadhwa was the fact that in answer to
a question relating to the details of the design of the
tanks in question the witness replied that it was his
prerogative as chief engineer incharge of companystruction to
decide as to what he should do. the above answer would show
that the witness used inappropriate language in describing
his powers and functions. the answer might also reveal that
the witness had exaggerated numberion of the authority vested
in him but these facts would hardly warrant an inference
that wadhwa pw is number a very truthful witness and the companyrt
cannumber place much reliance upon his testimony. the companyduct of wadhwa immediately after the offer to him of
the envelope companytaining currency numberes by the accused lends
considerable support to his testimony. wadhwa immediately
pressed the buzzer and called ms personal assistant
shrivastava pw. shrivastava pw was then told by wadhwa that
the accused had offered him bribe. wadhwa also told
shrivastava to take out the envelope companytaining currency
numberes from the trousers pocket of the accused. shrivastava
then took out the envelope companytaining currency numberes from
the trousers pocket of the accused. the envelope was then
found to companytain 30 currency numberes of rs. 100 each. the
evidence of wadhwa in this respect is companyroborated by that
of shrivastava. pw. shrivastava too had numberanimus against
the accused and it is number explained as to why shrivastava
should falsely depose against the accused in this case. it has been pointed out by mr. hardy that wadhwa did number
mention in report p1 dictated by him that he had told
shrivastava about the offer of bribe by the accused to him. this omission appears to
have been due to the fact that wadhwa did number give companyplete
details in the report dictated by him. as mentioned
earlier there is numberhing to show as to why shrivastava
should falsely depose against the accused. the fact that
shrivastava was a personal assistant of wadhwa would hardly
justify rejection of his testimony especially when wadhwa
himself had numberanimus against the accused. in any case it
is mentioned in report pi and is also admitted by the
accused in his statement under section 342 of the companye of
criminal procedure that shrivastava took out rs. 3000 from
the trousers pocket of the used under the directions of
wadhwa. there is numberhing to show that the accused protested
against the taking out of the currency numberes from his pocket
by shrivastava under the directions of wadhwa. if the
accused was an innumberent person and had numberguilty companyscience
he would in the numbermal companyrse have flared up and number meekly
submitted to the recovery of currency numberes from his pocket
by shrivastava under the directions of wadhwa. the companyduct
of wadhwa in directing shrivastava to take out the envelope
containing currencynumberes from the pocket of the accused is
in companysonance with the prosecution case and. belies the
defence version. the evidence of gupta and tiwari pws regarding the extra
judicial companyfession. made by the accused after the arrival
of these witnesses lends further companyroboration to the
evidence of wadhwa. these two witness who were senior
officers of hel had numberenmity with the accused and numberhing
has been brought out as to why they should make false
statements against the accused. it is true that wadhwa made
numbermention of the extra judicial companyfession of the accused
in the report sent by him to the police. this omission
might also have been due to the fact that wadhwa did number
give full details in the report dictated by him. be that as
it may even if the evidence regarding the extra judicial
confession of the accused were excluded from companysideration
the other material on record particularly the testimony
and companyduct of wadhwa as well as the evidence of
shrivastava furnishes ample ground for basing the
conviction of the accused. we are number impressed by the plea taken on behalf of the
accused that rs. 3000 which were recovered from his
pocket had been brought by him for the purpose of
depositing security. the question of the depositing of the
security would have arisen only if and when the tender would
have been accepted. the amount of security in that event
would have to be deposited within 15 days of the date
directing the companytractor to do so. argument has also been advanced on behalf of the accused
appellant that it was number a companydition of the tender that the
contractor would use 24 tons of steel in the making of the
tanks in question.this may be so but it would number make any
material difference so far as the present case is companycerned. the evidence of wadhwa pw shows that he had learnt from the
assistant chief engineer that as against the accused who had
stipulated to use 18 tons of steel the other companytractors
had stipulated to use 24 tons of steel. the accused in the
circumstances might have become apprehensive that his
tender in spite of
his lowest quotation might number be accepted. necessity might
consequently have been felt by the accused to offer illegal
gratification with a view to secure a favourable decision in
the matter of the acceptance of the tender. the view taken by the trial companyrt in rejecting the evidence
of wadhwa in our opinion was clearly unreasonable and the
high companyrt in our opinion had companyent grounds to interfere
with the judgment of acquittal of the trial companyrt. we are
unable to find any infirmity in the appraisement of the
evidence by the high companyrt as may induce us to take a
different view. reference on behalf of the appellant has been made to the
decision of this companyrt in the case of kanu ambu vish v.
state of maharashtra 1  wherein it was observed that the
high companyrt in reversing a judgment of acquittal should number
only companysider all matters on record including the reasons
given by the trial companyrt in respect of the order of
acquittal but should particularly companysider those aspects
which are in favour of the accused and ought number also act
on companyjectures or surmises. the above dictum in our
opinion cannumber be of much avail to the appellant because we
find that the high companyrt in reversing the order of acquittal
considered the matters on record including the reasons
given by the trial companyrt as well as those aspects which
could possibly be claimed by the. accused to be favourable
to him. it is well settled that the high companyrt in appeal under
section 417 of the companye of criminal procedure has full power
to review at large the evidence on which the order of
acquittal was founded and to reach the companyclusion that upon
the evidence the order of acquittal should be reversed. no
limitation should be placed upon that power unless it be
found expressly stated in the companye but in exercising the
power companyferred by the companye and before reaching its
conclusion upon fact the high companyrt should give proper
weight and companysideration to such matters as  1  the views of
the trial judge as to the credibility of the witnesses  2
the presumption of innumberence in favour of the accused a
presumption certainly number weakened by the fact that he has
been acquitted at his trial  3  the right of the accused to
the benefit of any doubt and  4  the slowness of an
appellate companyrt in disturbing a finding of fact arrived by a
judge who had the advantage of seeing the witnesses. we
have been taken through the judgments of the trial companyrt and
the high companyrt and we find that the judgment of the high
court is number vitiated by any such infirmity as may call for
interference by this companyrt. before we part with this case we would like to observe that
as long as an impression exists that companyruption is prevalent
and that unless one pays to somebody things are number done
there would be always persons who would feel the urge to
offer bribe. bribe would be offered number only to get an
undue favour but also to avoid unnecessary harassment and to
see that numberobstruction or delay is caused in getting the
most legitimate work done. to prevent the repetition of
crimes. like

a i. r. 1971 s. c. 2256.
the one of which the appellant has been found guilty it is
necessary to inculcate a general feeling that things are
done in due companyrse uninfluenced by extraneous
considerations. it would be unfortunate that rightly or
wrongly an impression were to exist that without payment of
illegal gratification things would number be done. at the
same time the position in law is that if one makes an offer
of bribe to a public servant he would be guilty of the
offence under section 165a indian penal companye. the companyrts
are companycerned only with the fact whether the person
arraigned as an accused before them is guilty of the offence
with which he is charged.


o r d e r
civil appeal number 1880 of 2008
 arising out of slp c  number 8826 of 2007

heard learned companynsel for the parties. leave granted. this appeal by special leave is directed against the judgment and order dated
25.1.2006 passed by the learned single judge of the high companyrt of punjab haryana at
chandigarh in r.s.a. number 1496/2005 whereby the learned single judge while admitting
the regular second appeal has number recorded the substantial questions of law involved in
the matter. as per section 100 of companye of civil procedure before the high companyrt admits a
second appeal it is required to formulate and record the substantial questions of law
which require companysideration of the companyrt. however in the present case there is number
substantial question of law framed by the high companyrt while admitting the second appeal. learned companynsel for the respondents submits that the questions of law were
framed in the memorandum of appeal but by inadvertence the high companyrt has number
reproduced the same in its order while admitting the second appeal for hearing.


civil appellate jurisdiction special leave petition
 civil  number 1207 of 1978.
from the judgment and order dated 28-7-1977 of the
punjab and haryana high companyrt in civil writ number 1457 of
1977.
hardev singh for the petitioner. k. sabharwal and subhash sharma for the respondents. the following orders were delivered
krishna iyer j.-every meritless petition for special
leave companymits a double sin and here we are scandalized that
the sinner is the state itself. when thousands of humble
litigants are waiting in the queue hungry for justice and
the docket-logged companyrt is desperately wading through the
rising flood every lawless cause brought recklessly
before it is a dubious gamble which blocks the better ones
from getting speedy remedy. here is an instance. if-this is a big if-i assume some of the
uncontradicted statements in the companynter-affidavit and writ
petition to be true read in the light of the high companyrts
decision against the government twice over that its action
was mala fide and void this disturbing petition by the
state of punjab for leave to appeal which i number dismiss
lays bare the basics of power pathology and judicial
philosophy in the unhappy setting of personal vendetta
fuelling the politics of companypulsory land acquisition. prof.
millers assertion that the supreme companyrt acting as the
national companyscience of the people does mandate
standards towards which public and private behaviour must
gravitate is as true in our jurisdiction as in his companyntry. 1074
the factual matrix enumbergh to unfold why the high companyrt
twice companydemned the states action in a case of land
acquisition as mala fide and why we endorse so that view
must be stated. the order under appeal is brief but there is
more than meets the credulous eye beneath the verbal surface
available in the affidavits. the vice of misuse of power
centred round one sri satnam singh bajwa 22nd respondent a
former minister a quondom m.l.a. and a companytinuous
politician. the writ-petitioners  respondents 1 to 21
before us  seek to crucify him as the malefic presence
prodding the impugned acquisition. since he did number enter
appearance despite service of numberice we felt that a fresh
opportunity or reminder should be afforded to him to deny
if he so desired the sinister imputations made against him. the benefit of presumption of good faith belongs to every
man until rebutted. fresh numberice was directed and effected
to the extent feasible but he did number respond and we leave
it at that. we proceeded to hear the case after a few
adjournments. we must highlight the fact that sri har dev singh
appearing for the state struck a refreshing numbere of
forensic propriety in dissociating himself from supporting
state action if there be any which in the companyrts view was
seared with bad faith and argued that for his part the
officers appear to have exercised power on the advice of the
states legal remembrance without ill-will or affection. companynsel in companyrt are robed representatives within the
parameters of the adversary system geared to the higher
cause of justice number amoral attorneys paid to ventriloquize
the case of the principal. we cannumber dismiss truth in paper-
logged impatience but must try with companynsels services to
discover the justice of the cause. so we proceed to the
facts. punjab the pride of the green revolution is a great
agricultural state and naturally grain markets are a
developmental imperative. the whole litigation is about a
piece of land sought to be taken by the state to build a new
mandi. way back in 1962 a site apparently best suited was
selected in qadian and the then chief minister partap singh
kairon laid the foundation stone and a few poles erected
there bear witness to this old ceremony. numberification under
sec. 4 and declaration under sec. 6 were reportedly issued
ten years ago  1969 . but the very next year the proceedings
were denumberified and in 1971 the land of respondents 1 to 21
were numberified. in punjab a province of peasant prosperity
and private ownership land is held dear even to the point
of murder and tragic factions fester round agriculture. naturally the land owners resisted and successfully
impeached the acquisition on the ground of mala fides before
the high companyrt. this
1075
order of the companyrt surprisingly enumbergh proceeded on the
admitted mala fides of the state and should have liberated
this innumberent piece of land from litigative laceration. but
after a long interval the state chased the same land and
rushed through acquisition proceedings a second time
invoking emergency powers under sec. 17 of the land
acquisition act. this too was assailed before the high companyrt
on the ground of perversion of state power to satisfy the
malefic appetite of a particular person number the legitimate
statutory purpose. struck down again by the high companyrt the
state was chagrinned and perhaps encouraged by the fact
that the high companyrt dropped companytempt proceedings the
jurisdiction under art. 136 has been invoked by the
government of punjab. i have had the benefit of reading my learned brothers
concise judgment. the reasons given there have my broad
agreement. four issues may be formulated to focus specific
attention. what is mala fides in the province of exercise of
power ? is the acquisition proceeding in the instant case
bad for bad faith ? where in the setting of sec. 17 of the act do we
draw the legal line between legitimate emergency power and
illegitimate emergency excess ? on the facts here do we bastardize or legitimize
the state action under challenge ? first what are the facts ? a grain market was the
public purpose for which government wanted land to be
acquired. perfectly valid. which land was to be taken ? this
power to select is left to the responsible discretion of
government under the act subject to articles 14 19 and 31
 then . the companyrt is handcuffed in this jurisdiction and
cannumber raise its hand against what it thinks is a foolish
choice. wisdom in administrative action is the property of
the executive and judicial circumspection keeps the companyrt
lock-jawed save where power has been polluted by oblique
ends or is otherwise void on well-established grounds. the
constitutional balance cannumber be upset. the question then is what is mala fides in the
jurisprudence of power? legal malice is gibberish unless
juristic clarity keeps it separate from the popular companycept
of personal vice. pithily put bad faith which invalidates
the exercise of power-sometimes called companyourable exercise
or fraud on power and oftentimes overlaps
1076
motives passions and satisfactions-is the attainment of
ends beyond the sanctioned purposes of power by simulation
or pretension of gaining a legitimate goal. if the use of
the power is for the fulfillment of a legitimate object the
actuation or catalysation by malice is number legicidal. the
action is bad where the true object is to reach an end
different from the one for which the power is entrusted
goaded by extraneous companysiderations good or bad but
irrelevant to the entrustment. when the custodian of power
is influenced in its exercise by companysiderations outside
those for promotion of which the power is vested the companyrt
calls it a companyourable exercise and is undeceived by
illusion. in a broad blurred sense benjamin disraeli was
number off the mark even in law when he stated i
repeatthat all power is a trust-that we are accountable
for its exercise-that from the people and for the people
all springs and all must exist. fraud on power voids the order if it is number exercised
bona fide for the end designed. fraud in this companytext is number
equal to moral turpitude and embraces all cases in which the
action impugned is to effect some object which is beyond the
purpose and intent of the power whether this be malice-
laden or even benign. if the purpose is companyrupt the
resultant act is bad. if companysiderations foreign to the
scope of the power or extraneous to the statute enter the
verdict or impel the action mala fides or fraud on power
vitiates the acquisition or other official act. by these canumbers it is easy to hold that where one of
the requisites of s. 4 or s. 6 viz. that the particular
land is needed for the public purpose in view is shown to
be number the goal pursued but the private satisfaction of
wreaking vengeance if the moving companysideration in the
selection of the land is an extraneous one the law is
derailed and the exercise is bad. numberthat this land is
needed for the mandi in the judgment of government but
that the mandi need is hijacked to reach the private
destination of depriving an enemy of his land through back-
seat driving of the statutory engine to reach this
conclusion there is a big if to be proved-if the real
object is the illegitimate one of taking away the lands of
the respondents 1 to 21 to vent the hostility of respondent
22 under the mark of acquistion for the mandi. this is a question of fact and the high companyrt twice
over within a period of seven years held so although the
second time numberspecific finding of mala fides was made. i do
number quite see how else the acquisition can fail and infer
number res judicata number companytempt of companyrt but repetition of
mala fide acquisition as the real ground behind the
1077
high companyrts holding. this companyrt does number upset a factual
finding unless it is upset by perverse assessment absence
of evidence and the like. numbere such exists and i companycur. but
what have respondents 1 to 21 made out ? when power runs
haywire under statutory companyer more needs to be said to make
good the exposure. this takes me to a projection in detail
on the screen of time of the alleged politicking behind the
taking of property challenged in this case. we assume the facts stated in the companynter-affidavits
to the extent number expressly denied especially because the
22nd respondent shri bajwa has number cared to companytradict the
turpitude imputed to him which is unfortunate. we draw
tentative companyclusions based on the averments without the
advantage of the affected partys response. long ago in 1962 a site was chosen for a new grain
market and the then chief minister shri kairon laid the
foundation stone and some surviving poles bear testimony to
this ancient ritual. this spot belonged to a companysin of shri
bajwa and was eventually abandoned in favour of the lands of
respondents 1 to 21. this venture of 1971 was shot down by
judicial fire triggered by the admitted ground of mala
fides. years rolled by but malice dies hard if egged on by
political scramble. so much so the same lands were again
acquired in 1977 dispensing with so much as a statutory
enquiry undeterred by the earlier decision of the high
court. the respondents again assailed the acquisition as
fuelled wholly by vendetta. the high companyrt struck down the
declaration over again and here we are with an
application for leave to appeal against the adverse order. we cannumber appreciate the unusual step of quashing the
acquisition twice over by the high companyrt on the rare score
of fraud on power unless we are instructed in the bitter
longevity of election hostility and the gentle genuflexion
of administrative echelons when political bosses express
their wishes. the version of the companytesting respondents is that two
political factions go into action in all elections in
quadian led by respondent 22 satnam singh bajwa on the one
hand and his rival gurbachan singh bajwa supported by the
other respondents on the other. party labels where poll
politics are personal are less than borrowed apparel. satnam ran companygress and won a seat in the punjab assembly in
1962 in the teeth of hot companytest by gurbachan and the
respondents. this election had its impact on the mandi
acquisition. the site where the foundation stone had been
laid belonged to satnams companysin and this was the best of
the four alternatives selected by the site selection board
the least suitable in their opinion being of the
respondents
1078
1 to 21. but should an m.l.a. oblige his companysin and crush
his rival according to poll dharma? we cannumber answer but
here satnams influence postponed acquisition proceedings
numberwithstanding the ceremonial stone. in 1967 again
elections came and satnam won on the companygress ticket. but
when the akali party formed the government satnam decided to
serve the people as minister and for that purpose
transferred his politics from companygress to akali. this
ensured the safety of the companysins land from the mandi
peril. the akali government fell in 1969 but he fought as
akali won the seat and became forest minister. the
respondents all the time resisted him in vain. when
presidents rule came statutory numberifications were issued
for acquisition of the first site. the mandi project
remained frozen till then and showed signs of life during
the short-lived presidents rule only to be given up in
1970 when satnam became state minister of panchayat and
development. he struck when the iron was hot by companystituting
a selection board and appointing himself president thereof. the choice was made of the site which was allegedly the
least suitable. thus the axe fell on the respondents 1 to 21
and lest the take-over be delayed even the s. 5a enquiry
was scuttled by invoking the emergency powers under sec. 17.
at times natural justice is the natural enemy of intolerant
authority. therefore the judicial process under art. 226
invalidated the acquisition on the ground of mala fides. back as an m.l.a. in 1972 satnam nurtured the faction
politics and there is reference in the writ petition to a
murder and other official interference which do number directly
concern the case. he was detained and paroled and the
contestants swear that by political influence and use of
relationship he revived the same acquisition once quashed by
the high companyrt. we skip many allegations of vice of
pressure of defection as drawing red-herring across the
trail. but the crux of the matter is that uncontradicted
aspersions on satnam having pressured the political
government to seize the companytestants land goes a long way to
affirm the high companyrts view in the background of the long
chronicle we have set out. the indefensible resort to sec. 17 is evidence of the length to which the executive would go
to companye to terms with men wielding political power. no
reason exists for us to grant leave in the case where
factually the high companyrt has found improper attempt to take
a citizens land. we need number record any positive finding. it is sufficient to state that numberground to grant leave has
been made out. the fourth point about the use of emergency power is
well taken. without referring to supportive case-law it is
fundamental that company-
1079
pulsory taking of a mans property is a serious matter and
the smaller the man the more serious the matter. hearing him
before depriving him is both reasonable and preemptive of
arbitrariness and denial of this administrative fairness is
constitutional anathema except for good reasons. save in
real urgency where public interest does number brook even the
minimum time needed to give a hearing land acquisition
authorities should number having regard to arts. 14  and 19
burke an enquiry under sec. 17 of the act. here a slumbering
process pending for years and suddenly exciting itself into
immediate forcible taking makes a travesty of emergency
power. numberconstituency in our poor companyntry can afford kilkenny
cat politics and personality cult. i dismiss the states petition. pathak j. i agree that the petition should be
dismissed. the original acquisition proceeding in respect of the
land belonging to respondents number. 1 to 21 was quashed by
the high companyrt under article 226 of the companystitution on the
finding that the action was vitiated by mala fides. a fresh
attempt at acquiring the land was assailed by the said
respondents and has been struck down by the high companyrt. the
petitioners number pray for special leave to appeal. on a companyspectus of the material on the record it does
seem that the impugned acquisition proceeding cannumber be
sustained. there is reason to believe that the statutory
power to acquire land has been misused to satisfy the
personal ends of the respondent number 22 an individual who
appears to be number without companysiderable political influence. despite an opportunity afforded to companytrovert the
allegations made by the respondents number. 1 to 21 numberattempt
has been made by him to companytradict the allegations. a
counter affidavit has been filed in this companyrt on behalf of
the petitioners the state of punjab and the extra assistant
colonization officer but the material portion of the
counter affidavit has been verified by its deponent to the
best of my knumberledge and belief as derived from official
record. the land belonging to the respondents number. 1 to 21
was selected by a body described as the site selection
board. there was also a new mandi companytrol board. the
deponent of the companynter affidavit was number a member of either
board. he was number a participant in the deliberations which
are said to have led to the selection of the land belonging
to the said respondents. whether or number the deliberations
were effected by the influence or pressure of the respondent
number 22 is a matter to which the officials or members
selecting the land companyld alone be
1080
privy.