minal 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 section 396 read with section 109 IPC 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 section 107 IPC read with Explanation 2
Seven persons including the appellant were tried fixe under section 396 IPC and Subedar appellant and Tota under section 396 read with section 109 IPC 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 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 section 396 IPC 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 section 396 IPC 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 exhibit 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 615 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 PW 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 PW 5 that Chhotey Lal had sent the appellant to lodge airport
Dammar PW 5 had also accompanied Subedar along with Lila Pradhan and the chowkidar
We see no reason for disbelieving the testimony of PW 5
PW 17 Chaudhari Ishrat Husain Sub Inspector has stated that Subedar was arrested by him on the 15th April 1963 The statement of Babu Ram PW 7 and Khanna PW 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 PW 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 PW 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 PW 15 had recorded 830 Chhotey Lal s statement as early as March 22 1963 and it was from PW 15 that PW 17 took over the investigation
PW 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 PW 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 lathis
On the same night a dacoity was committed at the residence of Gajodhar and he was killed by the dacoits
Khanna PW 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 PW 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 PW 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 section 342 Cr
PC 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 DW 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 PW 15 who had recorded the statements of Chhotey Lal and Dammar and of other witness on the day following the dacoity PW 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 article 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 article 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 vs The State of Madhya Pradesh1 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 PP 1097 8
Of coursethe 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
YP Appeal allowed
1 1952 SCR 1091


Summary:
Seven persons including S the appellant and T were tried together five under section 396 IPC and the appellant and T under section 396 read with section 109 IPC 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 section 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 FIR 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 article 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 vs The State of Madhya Pradesh 1952 SCR 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