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PETITIONER: SUBEDAR

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 14/08/1970

BENCH: DUA, I.D. BENCH: DUA, I.D. HEGDE, K.S.

CITATION:  1971 AIR  125            1971 SCR  (1) 826  1970 SCC  (2) 445

ACT: Constitution  of India, Art, 136--Conclusions of two  Courts below  holding accused guilty--When interference by  Supreme Court justified. Evidence -Circumstantial evidence must point to  guilt  of accused and exclude possibility of  innocence.

HEADNOTE: 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

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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 circumstantial evidence. The appeal was allowed.

JUDGMENT: 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 Explanation 2. 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

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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 the other;               (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 wrong track. 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-

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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 conjectural. 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.

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Out of them he knew only Tota and with Subedar.  Others were not known to him.  They were armed ballam, kanta and lathis. 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 some what 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

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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 be 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 convicting Subedar. 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 accused."

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             (PP-1097-8). 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. Y.P.                                    Appeal allowed. (1) (1952) S.C.R. 1091. 833