Subedar Vs. State of U.P  INSC
159 (14 August 1970)
14/08/1970 DUA, I.D.
CITATION: 1971 AIR 125 1971 SCR (1) 826 1970
SCC (2) 445
Constitution of India, Art, 136--Conclusions
of two Courts below holding accused guilty--When interference by Supreme Court
Evidence -Circumstantial evidence must point
to guilt of accused and exclude possibility of innocence.
Seven persons including S (the appellant) and
T were tried together, five under s. 396 I.P.C. and the appellant and T under
s. 396 read with s. 109 I.P.C. The prosecution case depended only on
circumstantial evidence and mainly on the testimony of two witnesses. The trial
court convicted six accused, including the appellant and acquitted one. On
appeal to the High Court by the convicted persons additional evidence was
recorded and S. and T were also reexamined as accused for explaining the
prosecution evidence. In the High Court prosecution relied on the following
five circumstances against S and T :
1. Bitter enmity between G and C on the one
side and S and T who were fast friends on the other;
2. The nature of the incident suggests that
the primary object of the culprits was to commit the murder of G and C and
having failed to kill C his property was looted as incidental venture;
3. On the evening preceding the night of
dacoity S and T were seen in the company of five or six persons including the
accused Gajju armed with kanthas, ballas and lathis,
4. S, who was inimical to G and C, raised
false alarm at the time of dacoity to show false sympathy; and
5. On the following morning after dacoity S
lodged F.I.R. by way of Peshabadi for putting the police on wrong track.
The appeal was dismissed by the High Court.
According to both the courts below S and T were, not amongst the dacoits.
They were only stated to have assembled at
the time of the dacoity. S is a first cousin of G and C, two victims of the
dacoity. G was killed during the course of the dacoity.
On appeal by special leave in the
Supreme-Court counsel for the respondent State contended that it should not
interfere with the conclusions of the two courts below holding the appellant
guilty. Disagreeing with this contention.
HELD: This Court undoubtedly does not
normally proceed to review and reappraise for itself the evidence in criminal
cases when hearing appeals under Art. 136. But when the judgment under appeal
has resulted in grave miscarriage of justice by some misapprehension or mistake
in the reading of evidence or by ignoring material evidence- then this Court is
not only empowered but is expected to interfere to promote the cause 827 of
justice. Article 136 is worded in very wide terms and the power conferred by it
is not hedged in by any technical hurdles. This over-riding and exceptional power
has been vested in this Court to be exercised sparingly and only in furtherance
of the cause of justice. In the present case which depends only on
circumstantial evidence. the courts below have completely ignored the warning
given by this Court in Hanumant v. The State of Madhya Pradesh [1952 S.C.R.
1091] against the danger of conjectures and suspicions taking the place of
proof. Evidence on basic or primary facts has of course to be approached in the
ordinary practical way but the conclusions in the case of circumstantial
evidence must necessarily point only to the guilt of the accused excluding any
reasonable possibility of innocence. [832 B].
After considering the evidence on the record,
HELD : None of the five circumstances were
established on the record; nor could they be considered either singly or
collectively to be sufficiently cogent to bring home to the appellant abetment
of the offence charged beyond the possibility of reasonable doubt. The evidence
in the case did not satisfy the test required in cases founded on
The appeal was allowed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.- 164 of 1967.
Appeal by special leave from the judgment and
order dated October 14, 1966 of the Allahabad High Court, Lucknow Bench, in
Criminal Appeal No. 425 of 1964.
O. P. Varma, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by-
Dua, J.-Subedar, appellant, has come up an appeal by special leave from his
conviction under S. 396 read with s. 109, I.P.C. and sentence of life
imprisonment imposed by the temporary Civil & Sessions Judge, Hardoi and
affirmed on appeal by the Allabad High Court according to which the appellant's
case is covered by the second and third clauses of s. 107, I.P.C. read with
Seven persons, including the appellant, were
tried, fixe under s. 396, I.P.C. and Subedar, appellant, and Tota under S. 396
read with s. 109, I.P.C. The trial court convicted six and acquitted one. The
appeal of the convicted persons to the High Court failed. In this Court only
Subedar has appealed.
According to the courts below Subedar and
Tota were not amongst the dacoits. They are, however, stated to have assembled
at the time of the dacoity which was committed on the night between the 21st
and 22nd March, 1963. Subedar, it is not disputed, is a first cousin of the
victims of the dacoity (Gajodhar 828 and Chhotey Lal) and is a resident of
village Zafarpur where the dacoity was committed. Gajodhar, it may be stated,
was killed during the course of the dacoity. The circumstances on which the
prosecution relied against Subedar in the High Court are (1) bitter enmity
between Gajodhar and Chhotey Lal and, Subedar and Tota who are fast friends on
(2) the nature of the incident suggests that
the primary object of the culprits was to commit the murder of Gajodhar and
Chhotey Lal and touch the culprits did not succeed in killing Chhotey Lal his
property was looted as an incidental venture;
(3) on the evening preceding the night of
dacoity, Subedar and Tota were seen in a grove south of the village within less
than a mile from Zafarpur in the company of five or six persons including
appellant, Gajju son of Chheda, armed with kantas, bhallas and lathis.
On the night following the dacoity was
committed at the house of Gajodhar and Chhotey Lal when Gajodhar was killed and
Chhotey Lal seriously injured and in the commission of that offence Gajju son
of Chheda participated;
(4) Subedar, who was inimical towards
Gajodhar. and Chhotey Lal tried to show false sympathy for them by raising an
alarm at the time of dacoity;
(5) on the following morning Subedar lodged
first information report by way of Peshabandi in order to, put the police on
None of these circumstances is, in our view,
established on the record; nor can they be considered either singly or
collectively to be sufficiently cogent to bring home to the appellant abetment
of the offence under s. 396, I.P.C.
beyond the possibility of a reasonable doubt.
According to Chhotey Lal undoubtedly there was a dispute in regard to property
between him and the appellant who is his first cousin and indeed court
litigation was pending between them.
But it seems to be an exaggeration to say
that there was bitter enmity between the parties. In support of the second
circumstance also we are unable to find any evidence on the record. The
inference seems to be conjectural, not supported by the material on the record
on any rational basis. The charge under s. 396, I.P.C. also postulates murder
in the course of the commission of dacoity and does not quite support the High
Court's view. In any event it does not implicate the appellant. After dealing
with the last two circumstances we will turn to the third. Subedar, it is
conceded, actually lodged the first information report (Ex. Ka 7) on the,
morning of 22nd March. It was a writ- 829 ten report covering nearly three
printed pages. Now, merely because there was some dispute or litigation pending
in courts between the parties it does not follow that the report was lodged by
the appellant with the object of misleading the police or in order to forestall
suspicion against him. From the contents of the report it is not possible to
draw this inference. There is nothing mis- leading in it and certainly nothing
indicative of a design to put the police on a wrong track. In fact its detailed
nature suggests. that it must have emanated from the persons who had taken full
account of the loss and had even evaluated the articles stolen. The dacoity and
murder it may be recalled was committed on the night between 21st and 22nd
March. The written information was given by Subedar on the morning of the 22nd
at 6.15 a.-M. at the police station about 7 miles away. In these circumstances
the suggestion of Peshabandi (to forestall suspicion) by the appellant seems to
be wholly insupportable. Chhotey Lal, who appeared as P.W. 2, admitted in his
cross-examination that Subedar, accused, had gone to the, police station to
lodge a report regarding the occurrence in question. Though he denied that he
had sent Subedar to lodge the report he was constrained to admit that the
following day at 9 or 10 O'clock the Sub- Inspector had also told him that
Subedar had gone to the police station to lodge the report. He also admitted
that when the Sub-Inspector informed him about Subedar having gone to lodge the
report on his behalf he did not tell the Sub-Inspector that Subedar was
inimical to him and his report should, therefore-, be shown to him for scrutiny
The detailed nature of the report, the contents of which have not been show in
to be incorrect, were presumably given to the appellant by Chhotey Lal. These
circumstances support rather than negative the theory that Chhotey Lal had sent
Subedar for lodging the report. There is, however, positive evidence in the
statement of Dammar (P.W. 5) that Chhotey Lal had sent the appellant to lodge
airport. Dammar (P.W. 5) had also accompanied Subedar along with Lila Pradhan
and the chowkidar. We see no reason for disbelieving the testimony of P.W. 5.
P.W. 17 Chaudhari Ishrat Husain, Sub- Inspector, has stated that Subedar was
arrested by him on the 15th April, 1963 The statement of Babu Ram (P.W. 7) and
Khanna (P.W. 8), the two witnesses on whose evidence the appellant is convicted
were recorded by him on the 28th March, 1963. It is, however, not known as to
what they had stated during the investigation. A day earlier on 27th March,
1963 P.W. 17 had actually framed a charge-sheet against Jitta and Gajjoo son of
Rupan Pasi. On the,. 9th April, 1963 an application by Chhotey Lal was received
by P.W. 17 in which suspicion was cast on Subedar and Tota.
Prior to 9th April, according this witness,
he had no proof of these two persons having participated in the dacoity though
he admits that he had already recorded Chhotey Lal's statement before 9th
April. In fact Sub-Inspector Deorary (P.W. 15) had recorded- 830 Chhotey Lal's
statement as early as March 22, 1963 and it was from P.W. 15 that P.W. 17 took
over the investigation.
P.W. 15 does not say that Chhotey Lal or
anyone else suspected the, appellant The foregoing discussion strongly
indicates that the implication of Subedar, appellant, was an after-thought.
Circumstances nos. 4 and 5 have thus no basis and appear to be purely
We may now appropriately refer to the
statements of the, two witnesses whose sole, testimony appears to be the basis
of the appellants conviction. The third circumstance is found on their
evidence. Babu Ram (P.W. 7) whose statement was recorded in court on the 28th
March, 1964 has deposed that about a year earlier he was returning to his
village, from the Consolidation Office at Thomharwa in the evening when the sun
was about to set. Khanna and Bashir were with him.
When they reached near the big grove lying to
the south of village Daulatpur, he saw five or Six persons in the grove.
Out of them he knew only Tota and with
Subedar. Others were not known to him. They were armed ballam, kanta and
On the same night a dacoity was committed at
the residence of Gajodhar and he was killed by the dacoits. Khanna (P.W. 8) has
deposed in similar terms. The contradictions elicited in their
cross-examination would show that their statement on the question of the
presence of the appellant in the grove, cannot be-safely relied upon. According
to Babu Ram who had on the day in question gone from Katghara (which was also
the village of Khanua, P.W. 8) to the Consolidation Office in village Thomharwa
along with Khanna and Bashir, they had made merely oral request in regard to
their grievance without subMitting any application. Khanna (P.W. 8) has, on the
other hand, stated that Bashir and Babu Ram met him only on his way back home.
He professes to have submitted his application but expresses ignorance about
Babu Ram and Bashir having done so because they had not met him, in the
Consolidation Office. This contradiction on the facts and circumstances of this
case is very material and casts a serious doubt on the veracity of their
version in regard to the circumstances in which they profess to have seen the
appellant I near the grove. In their cross-examination a suggestion was also
thrown that Subedar had appeared as a defence witness in a case, against one
Jailal, Chamar, in which case these two witnesses had appeared for the
prosecution. This suggestion was apparently intended to indicate the motive on
the part of these two witnesses to falsely implicate the appellant.
The evidence of these two witnesses seems to
us to be too infirm to carry conviction to their deposition that they saw the
appellant as alleged. It is indeed somewhat surprising how their evidence was
accepted by the courts below, without appropriate scrutiny, in holding the
presence of the appellant in the grove. But even assuming that the appellant
was seen by them as alleged, that by 831 itself is not sufficient to connect
him with the offence charged. It cannot be said that from this it follows as a
necessary and the only rational or reasonable inference that the appellant was
as abetter of the dacoity _and murder. On a practical approach the reasonable
possibility of his innocence cannot be ruled out. The courts below have
erroneously ignored this vital aspect.
At this stage we may refer to some evidence
which was recorded in the High Court on appeal. It appears that on behalf of
the present appellant and Tota it was complained in the High Court by their
counsel that the circumstance that these two accused persons had been seen with
the culprits who Committed dacoity in question was not clearly put to them
under S. 342, Cr. P.C. by the trial court, and that they were misled in their
defence because the trial court had questioned them in a manner which suggested
that they been charged with having actually committed dacoity along with the
other culprits. The High Court, therefore, summoned Subedar and Tota who were
on bail. This order was passed on 11th August,' 1966. Subedar was accordingly
examined by the High, Court on the 24th August and was confronted with the
statement of Babu Ram and Khanna (PWs 7 and 8). The appellant denied that he
was ever in the grove as stated by these witnesses and stated that he had
enmity with them and added that they were police witnesses.
Subedar also expressed a desire to produce
witnesses in his defence. Lila Pradhan was in the circumstances examined by the
High Court as D.W. 4. It may be, recalled that according to Danunar, Lila
Pradhan was also one of the persons who had gone to lodge the report with him
and Subedar. Lila Pradhan deposed in his examination-in-chief in the High Court
that Chhotey Lal had asked Subedar to go and lodge a report in the police
station about the dacoity in question. Subedar also raised an alarm at the time
of the dacoity. This witness, after his cross-examination by the counsel for
the State., was examined by the High Court at some length He was village
Pradhan for six years. His statement seems to be a frank and straightforward.
From the evidence on the record we are also, inclined to think that the
appellant must have been included in the original list of prosecution witnesses.
This view finds Support from the statement of
Sub-Inspector, Deorary, (P.W. 15) who had recorded the statements of Chhotey
Lal and Dammar and of other witness" on the day following the. dacoity,
P.W. 17 seems to us to have wrongly denied this fact.
Apart from the material which we have just
discussed. there is no other relevant material to which our attention has been
invited or which we have come across on this record relevant to the case
against Subedar. From this it is crystal clear that there was no real suspicion
against Subedar and that it was in April that he was involved as an
afterthought presumably because of some other ulterior consideration. Both the
trial court and the High 832 Court seem to us to have completely gone wrong in
The respondent's counsel strongly contended
that this Court should not interfere On Special leave appeal under Art. 136
with the conclusions of the two courts below holding die appellant guilty. We
do not agree with this submission.
This Court undoubtedly does not normally
proceed to review and reappraise for itself the evidence in criminal cases when
hearing appeals under Art. 136. But when the judgment under appeal has resulted
in grave miscarriage of justice by some misapprehension or mistake in the
reading of evidence or by ignoring material evidence, then it is not only
empowered but is expected to interfere to promote the cause of justice.
Article- 136 is worded in very wide terms and the power conferred by it is not
hedged in by any technical hurdles. This over-riding and exceptional power has
been vested in this Court to be exercised sparingly and only in furtherance of
the cause of justice. In the present case which depends only on circumstantial
evidence, the courts below have completely ignored the warming given by this
Court in Hanumant v. The State of Madhya Pradesh(1) against the danger of
conjectures and suspicions taking the place of proof. The caution was
reiterated thus :
"It is well to remember that in cases
where the evidence of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be fully
established, and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again the circumstances should be
of a conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be a
chain of evidence so far complete is not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as
to show that within all human probability the act-, must have been done by the
Of course,the evidence on basic or primary
facts has to be approached in the ordinary practical way but the conclusions in
the case of circumstantial evidence must necessarily point only to the guilt of
the accused excluding any reasonable possibility of his innocence. We are not
satisfied that the evidence against the appellant in this case satisfies this
test. The appeal accordingly succeeds.
The order of the court below as against the
appellant is set aside and the appellant acquitted.
(1) (1952) S.C.R. 1091.