# SUBEDAR v. STA TE OF U.P

- **Citation:** [1971] 1 S.C.R. 826
- **Court:** Supreme Court of India
- **Decided:** 1970-08-14
- **Bench:** K. S. Hegde, I. D. Du.\
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subedar-v-sta-te-of-u-p-5290
- **Pages:** 7

## Headnote

Constit~tion of India, Art, 136-Conc/usions of two Courts below
holding accused guilty-When interference by S11pre111c Court justified.
l:.'vidence-Circa111s1antial ei·idence 11111st point to guilt of accused and
c•xc!11de possibility of innocence.
Seven persons including S (the appellant) and T were tried together,
five under s. 396 l.P.C. and the appellant and T under s. 396 read with
s. I 09 l.P.C.
The prosecution case depended only on circumstatial evidence and n1ainly on the testin1ony of two witnesses.
Tibe trial court
convicted six accused, including the appellant and acquitted one.
On
appeal to the High Court by the convicted persons additional evidence
\\·as recorded and S. and T "':ere also re~exan1ined as accused for explaining !he prosecution evidence.
In the High Court prosecution relied
on the fol!O\f\..'!ng five circumstances against S and T :
I, 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 \-enture;
3. Qn the evening preceding the night of dacoity S and T \Vere seen
in the company of :five or six persons including the accused Gajju
armed with kanthas, ballas and /athis;
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.J.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 \Vas 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
df the two courts below holding the appellant guilty. Disagreeing with this
contention.
HELD : This Court undoubtedly does not normally proceed to review
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and reappraise for itself the evidence in criminal cases when hearing
appeals. under Art. 136. But when the judgment under appeal has resulted
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in grave miscarriage of ,iustice bv some misapprehension or mistake in the
readJing of evidence or by ignoring material evidence. then this Court is
not only empowered but is expected to interfere to prorr1ote the cause
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SUBEDAR v. U.P. STATE (Dua, !.)
827
of justice. Article 136 is worded in \"erv 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
belo~·
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 ot
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
possihilitv of innocence. {832 Bl
After considering the cvidenct! on the record,
HELD : None of the five circumstances were cstabli.shcd on the rccor<l:
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nor could they be considered either singly or collectively to be sufficiently
cogent to bring home to the appellant ahet111ent of the offence charged
bcrnnd 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.
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CRIMINAL APPELLATE JURlSDICTION : Criminal Appeal No.
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164 of 1967.
Appeal by special leave from the judgment and order dated
October 14, 1966 of the Allahabad Hig

## Text

826
SUBEDAR
v.
STA TE OF U.P.
August 14, 1970
[K. S. HEGDE AND I. D. DU.\, JJ.J
Constit~tion of India, Art, 136-Conc/usions of two Courts below
holding accused guilty-When interference by S11pre111c Court justified.
l:.'vidence-Circa111s1antial ei·idence 11111st point to guilt of accused and
c•xc!11de possibility of innocence.
Seven persons including S (the appellant) and T were tried together,
five under s. 396 l.P.C. and the appellant and T under s. 396 read with
s. I 09 l.P.C.
The prosecution case depended only on circumstatial evidence and n1ainly on the testin1ony of two witnesses.
Tibe trial court
convicted six accused, including the appellant and acquitted one.
On
appeal to the High Court by the convicted persons additional evidence
\\·as recorded and S. and T "':ere also re~exan1ined as accused for explaining !he prosecution evidence.
In the High Court prosecution relied
on the fol!O\f\..'!ng five circumstances against S and T :
I, 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 \-enture;
3. Qn the evening preceding the night of dacoity S and T \Vere seen
in the company of :five or six persons including the accused Gajju
armed with kanthas, ballas and /athis;
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.J.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 \Vas 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
df the two courts below holding the appellant guilty. Disagreeing with this
contention.
HELD : This Court undoubtedly does not normally proceed to review
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E
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and reappraise for itself the evidence in criminal cases when hearing
appeals. under Art. 136. But when the judgment under appeal has resulted
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in grave miscarriage of ,iustice bv some misapprehension or mistake in the
readJing of evidence or by ignoring material evidence. then this Court is
not only empowered but is expected to interfere to prorr1ote the cause
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SUBEDAR v. U.P. STATE (Dua, !.)
827
of justice. Article 136 is worded in \"erv 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
belo~·
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 ot
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
possihilitv of innocence. {832 Bl
After considering the cvidenct! on the record,
HELD : None of the five circumstances were cstabli.shcd on the rccor<l:
C
nor could they be considered either singly or collectively to be sufficiently
cogent to bring home to the appellant ahet111ent of the offence charged
bcrnnd 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.
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CRIMINAL APPELLATE JURlSDICTION : Criminal Appeal No.
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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 oi 1964.
0. P. Vanna, for the appellant.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered byDua, J.-Subedar, appellant, has come up an appeal by special leave from his conviction under s. 396 read withs. 109, I.P.C.
and sentence of life imprisonment imposed by the temporary Civil
& Sessions Judge, Hardoi and affirmed on appeal by the Allahabad 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 ~·ppellant, were tried. fixe under
s. 396. l.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 t_he 21st and _22nd March, 1963.
Subedar. it is not
disputed, 1s a first coustn of the victims of the dacoity (Gajodhar
828
SUPREME COURT REPORTS
[ 1971] l s.c.R.
and Chhotey Lal) and is a resident of village Zafarpur where the
dacoity was committed.
Gajodhar, it may be stated, was kil!ed
during the course of the dacoity.
The circumstances on which
the prosecution relied against Subedar in the High Court are :
(l) 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 \\·as to commite the murder.
of Gajodhar and Chhotey Lal and though 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 live or six persons including appellant, Gajju
son of Chheda, armed with kantas, bhal/as and /athls.
On the night following the dacoity was committed at
the house of Gajodhar and Chhotey Lal when Gajndhar
was killed and Chhotey Lal seriously injured and in the
conunission of that offence Gajju son of ChLeda 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 foJJowing morning Subedar lodged first
information report by way of Peslwbandi 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 sin~ly or collectively
to be sufficiently cogent to bring heme to the appellant abetment
of the offence under s. 396, l.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
betweea them.
But it seems to be an exaggeration to say that
!here was bitter enmity between the parties.
In support of the
second circumstance also we are unable to find any evidence on
the record.
The inferen,ce 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 writA
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SUBEDAR V. U.P. STATE (Dua, J.)
829
ten report covering nearly three printed pages.
Now, merely
because there wa~ son.ie dispute or litigation pending in courts between the parties it d0es 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 misleading in it and cert~inly nothing indicative .of a design to put
ti1e 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 w 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 Sub~dar having gone to lodge the report on his
behalf he did not tell the Sub-Inspector that Subedai· 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 shown 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, · postive evidence in
the statement of Dammar (P.W. 5) that Chhotey Lal had sent
the appellant to lodge a report.
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 bv him on the 15th April. J 963.
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 a·s
to what they had stated during the investigation.
A day earlier
on 27th ~arch: 1963 P.W:. 17 had actually framed a chargesheet against J1tta and Gauoo son of Rupan Pasi.
On the. 9th
April,
1.963 ~ appl.ic~tion by Chhotey Lal was received by
P.W. 17 m which susp1c10n was cast on Subedar and Tota.
Prior
to 9th April, according to this witness. he had no proof of these
two persons having participated in the dacoity though he admits
that he had already recorded Chhotey Lat's statement before 9th
April.
In fact Sub-Inspector Deorary (P.W. 15) had recorded
830
SUPREME COURT REP0RTS
[1971] l S.C.R.
Chholey Lars 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
,1oes not say that Chhotey Lal or anyone else suspected the appelJnnt.
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 appellant's 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 Consoiid&tion Office
at Thomharwa in the evening when the sun was about to set.
Khanna and Bashir were with him.
When ti1ey 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
Subedar.
Others were not known to him.
They were armed with
bal/am, ka11ta and /athis.
On the same night a dacoity was committed at the residence of Gajodhar and ht was h.ilJed 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 a.lso the village of Khamia, 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 onfy on his
way back home.
He professes to have submitted his applicatioa
but expresses ignorance about Babu Ram and Bashir having done
so because they had not met him in the Consoljdation 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 near the grove.
Jn their cross-examination a suggestion was also thrown that Subedar had appeared as a
defence witness in a case against one Jailal, Cham.ir, 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 implicak lhe appellnnt. 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 r.crutiny, in
holding the presence of the appellant !n the grove.
But even assuming that the appellant was seen by them as al!eJed, that by
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SUBEDAR v. U.P. STATE (Dua, J.)
831
itself is not sufficient to connect him with the offence charged.
It cannot be said that fiom this it follows as a necessary uud the
only rational or reasonable inference that the appellant was as
abetter of the dacoity and murder.
On a practical appr0ach foe
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 liehalf of
the present appellant and Tota it was complaine<l i:i the High
Court by their counsel that the circumstance that these two accused
persons had been seen with the culprits who cormnitted da~oity
in question was not dearly put to them under s. 342, Cr. P.C.
by the trial court, and that they were misled in their ddence 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 Com t, theretore,
summoned Subedar and Tota who were on bail.
This order was
passed on I !th August, 1966.
Subedar was accordingly ex2mined by the High Court on the 24th August and was confronted
with the statement of Babu Ram and Khanna (PWs 7 urd ~).
The appeJlant denied that he was ever in the grove as stated by
these witnesses and stated that he had enmity wilh t:mn and ndded
that they were police witnesses.
Subedar also exp1csscd a Je;;ire
to produce witnesses in his defence.
Lila Pradhan wa~; in tlie
circumstances examined by the High Court as D.W. 4.
lt Liay
be recalled that according to Danlinar, Lila Pradhan was also
one of the persons who had gone to lodge the report with him
and Subedar.
Lila Pradhan deposed in his exammat1on-in-chief
in the High Court that Chhotey Lal had asked Subcdar to g.> anJ
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 franV. and
straightforward.
From the evidence on the record we are also
inclined to think that the appellant must hav~ been included in
the original list of prosecution witnesses.
This view finds sU>'-
port from the statement of Sub-Inspector, Deorary, (P.W. 15)
who had recorded the statements of Chhotey Lal arid Dammar
and of other witnesses on the day followin]; 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 h~s been invitec1
or which we have come across on this record relevant to the case
against Subedar.
From this it is crystal clear that there wa3 no
real suspicion against Subedar and that it was in April th2t he
was involved as an aft~r-thought presumaNy because er some
other ulterior consideration.
Both the trial c:::urt and the HiCTh
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SUPREME COURT REPORTS
[1971] 1 S.C.R.
Court seem to us to have completely gone wrong in convicting
Subedar.
The respondent's counsel strongly contended that this Court
should not interefere on special leave appeal under Art. J 36 with
the conclusions of the two courts below holding the appellant g1Jilty.
We do not agree with this submission.
This Court undoubtedly
does not normally pros;eed to review and reappraise for itscif the
evidence in criminal cases when hearing appeals under Art. 136.
But when the judgment under appeal has result~d in grave n1isc::rriage of justice by some misapprehension or mi>takc 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 r0w~r
conferred by it is not hedged in by any technical hurdle,.
This
over-riding and exceptional power has been ve;,tca 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 \'<~m
ing given by this Court in Ha1iumant v. The State of Madhya
Pradesh(!) 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, anJ a!i the facts
so est ab I ished should be consistent only with the hypothesis of the guilt of the accused.
Again, t;1e circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hpothesis but
the one proposed to be proved.
In other -words, there
must be a chain of evidence so far compielc as not U
leave any reasonable ground for a conclu,iun consistent
with the innocence of the accused and it mu•·t be such
as to show that withi.n all human probability the act
must have been done by the accused." (pp-1097-8).
Of course, the evidence on basic or primaiy fact~ 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 excludin_g any reasonable possibility of
his innocence.
We are not satisfied that the evidence against the
appellant in this case satisfies this test.
The apr-eal acccrdir;gly
succeeds. The order of the court below as against the appellant
is set aside and the appellant acquihed.
Y.P.
AppeaJ allowed.
(I) (1952) S.C.R. 1091.
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