SUBEDAR versus STATE OF U.P.

Citation: [1971] 1 S.C.R. 826 · Decided: 14-08-1970 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 evid-
ence 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 ex-
plaining !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 res-
pondent 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 
A 
B 
c 
D 
E 
F 
G 
and reappraise for itself the evidence in criminal cases when hearing 
appeals. under Art. 136. But when the judgment under appeal has resulted 
H 
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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B 
SUBEDAR v. U.P. STATE (Dua, !.) 
827 
of justice. Article 136 is worded in \"erv wide terms and the power con-
ferred 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. 
D 
CRIMINAL APPELLATE JURlSDICTION : Criminal Appeal No. 
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F 
G 
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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 by-
Dua, J.-Subedar, appellant, has come up an appeal by spe-
cial leave from his conviction under s. 396 read withs. 109, I.P.C. 
and sentence of lif

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