1. As we are inclined to certify that this caseis a fit one for appeal to the Supreme Court Ido not propose to discuss the matter at greatlength and consider it sufficient to draw attention to the main point raised by Mr. Sethi whoappeared on behalf of the convicts, althoughthis being the first case of its type that haacome before us we allowed considerable latitude to counsel on both sides in placing thodifferent view points before us.
2. The conviction of the petitioners in this case was based on (a) the evidence of a number of eye-witnesses and (b) circumstantial evidence consisting of the pointing out of some incriminating articles e.g., parts of the dead body of the deceased person, weapons of offence which were found to be stained with blood, and the place where the dead body was alleged to have been hacked up into pieces. The following passage occurs in the judgment of my Lord the Chief Justice who sat on the Bench hearing the appeal, i being the other Judge) : 'In all the circumstances I think it would be proper not to rely upon the oral evidence implicating particular accused unless there is some circumstantial evidence to support it.'
3. The argument of Mr. Sethi is that in this view of the matter, he is entitled to argue that the circumstantial evidence relied upon by the Bench hearing the appeal in deciding the appeal was not really incriminating evidence at all and, therefore, did not amount to any sort of corroboration. He contends that this is a point upon which the case should be certified as a fit one for appeal to the Supreme Court. He has relied upon a number of cases, the most important of which are -- 'Mahadeo v. The King', AIR 1936 PC 242 (A); -- 'Brij Bhushan Singh v. Emperor', AIR 1946 PC 38 (B); --'Lanier v. Reg.', (1914) AC 221 (C); -- The King v. Baskerville', (1916) 2 KB 658 (D) and -- 'V.T. Kunchi Amma v. Ammu Amrna', 36 Mad 591 (E). In these cases leave was granted on the ground that the question whether certain tacts are or are not sufficient to sustain a conviction is a point which may legitimately be argued in an appeal to their Lordships of the Privy Council.
In the present case the argument of Mr. Sethi is exactly similar. His contention is not that certain evidence should not be relied upon, but that the facts found to be proved by the evidence led on behalf of the prosecution are not sufficient to sustain a conviction. This has always been held to be a sufficient ground for granting leave and although I as a member ofthe Bench who heard the appeal am not at all persuaded that the conclusion was in any way erroneous I feel that this is a case which should be certified as a fit one for appeal to the Supreme Court on the analogy of the principles which governed the granting of leave to appeal to the Privy Council.
The Advocate-General placed before us a recent decision of their Lordships of the Supreme Court -- 'Pritam Singh v. The State', AIR 1950 SC 169 (F) in which it was held that only those points could be raised in arguing the appeal which could have been raised in support of a petition to obtain special leave to appeal. This, however, does not mean that the present case cannot be certified as a fit one, for Pritam Singh's petition for special leave was allowed and the appeal was entertained by their Lordships of the Supreme Court. The fact that the appeal ultimately failed on merits has no relevance to the question before us now. I would, therefore, certify that this case is a fit one for leave to appeal to the Supreme Court.
4.I agree. Petition allowed.