PETITIONER: MATRU alias GIRISH CHANDRA Vs. RESPONDENT: STATE OF UTTTAR PRADESH DATE OF JUDGMENT03/03/1971 BENCH: DUA, I.D. BENCH: DUA, I.D. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 1050 1971 SCR (3) 914 1971 SCC (2) 75 ACT: Circumstantial evidence-- Weight of. HEADNOTE: The appellant and two others were charged with the offences of murder of a woman and her three year old son by brutally stabbing them, and theft of cash and ornaments from the house of the deceased. The offences were alleged to have been committed between 10 and 11 a.m. About six months prior to the occurrence there was a quarrel between the deceased and the wife of the appellant who was the next door neighbor during which the deceased received an injury. The deceased wrote about this incident to her father. On the day of the occurrence when the husband of the deceased received information of the murder he rushed home from his shop and gave information of the occurrence to the police at about 12.40 p.m. but, as he did not suspect anyone, he merely, mentioned the circumstances in which he had come to know of the murder. The appellant was with him till the time when the First Information Report was lodged. Next morning one person informed the husband of the deceased that he had seen the appellant and two unknown persons entering the house of the deceased at about 10 or 10.30 a.m. on the previous day and another person gave the information that about 11.00 a.m. he had seen the appellant and two other persons coming out of his house. The husband of the deceased passed on the information to the police. By that time the appellant had disappeared. Three days later, he was appellant handed. On search of his person a spectacle case containing a pair of spectacles and a gold ring were recovered from the folds of his dhoti. The Sessions- Judge found the appellant guilty of murder and the High Court confirmed the conviction. The other two accused were acquitted. On appeal to this Court, HELD : The cumulative effect of circumstantial evidence in the present case falls short of the test required for sustaining a conviction. When proof of guilt depended solely on circumstantial evidence, it was incumbent on the courts to properly consider and scruitinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of guilt. [928 F-H] (1) Normally this Court does not go into evidence and appraise it for itself in criminal appeals under Art. 136 of the Constitution, because, the Article does not confer a right of appeal. It merely clothes this Court with discretionary Power to scrutinise and go into the evidence in special circumstances in order to satisfy itself that injustice has not been done. In the present case the exceptional features were that it was a case of cir- cumstantial evidence, the identification of the stolen articles was unsatisfactory, and the other two accused who had been charged along with the appellant, had been acquitted. [919 F-G] (2) (a) The husband of the deceased himself did not think that the appellant was inimical towards the deceased and he did not suspect him 915 of complicity in the murder. The alleged altercation between the deceased and the appellant's wife did not leave any serious impact on the mind of the husband of the deceased, and the appellant's admitted presence in the house of the deceased till the lodging of the F.I.R. indicated that relations between them were not hostile or unfriendly. [921 D-F] (b) The letter written by the deceased to her father about the quarrels does not prima facie fall within the purview of S. 32, Indian Evidence Act. But even if this letter were held to be admissible the motive which it Suggested was not of such a strong and impelling nature as to induce the murder of the deceased and her infant child. [927 H, 928 A- B] (3) (a) It is unbelievable that the appellant and his companions entered the house of the deceased for the purpose of committing murder and theft in broad day light when persons who knew him were likely to see him entering the house. The movements and behavior of the appellant did not show any abnormality. On the contrary, the behavior and conduct of the appellant, Judged by normal standards, was not suggestive of his involvement in such a heinous crime. In the absence of direct evidence this consideration could not be ruled out as irrelevant. [922 A-B, D-E, G-H] (b)The appellant's conduct in absconding does not necessarily lead to the inference of a guilty mind. Even an innocent person may feel panicky and try to evade arrest when wrongly suspected of a grave crime. Normally courts are disinclined to attach much importance to the act of absconding. of the accused, treating it as a very small item in the evidence for sustaining conviction. [928 B-D] (4) The evidence 'regarding the recovery of the articles from the appellant's possession at the time of his arrest was not acceptable without proper corroboration from a more disinterested and dependable source. Also, the ring said to have been recovered was of a common design and easily available. [926 A-C] (5) The identification of the ring was also unsatisfactory. Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is-proceeding on right lines. [192O F-G, 926 G-H] In the present case, although the articles were recovered three days after the occurrence the test identification was held by the Magistrate nearly four months later. The reason for the delay was suggested that similar articles had to be procured for mixing up with the articles recovered; ,but in fact the delayed identification had been held in a highly unsatisfactory manner, in that the articles mixed up were dissimilar. [926 C-D] (6) The weapon with which the crime was committed was not recovered, and, no stains of blood were noticed by anyone on the, appellants clothes even though he was with the husband of the deceased right up to the lodging of the F.I.R. and even accompanied him for that purpose. [928 E-F] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165 of
1968.
Appeal by special leave from the judgment and order dated
February 8 1968 of the Allahabad High Court in Criminal
Appeal No. 2305 of 1965.
916
A. S. R. Chari J. P. Goyal and G. S. Chatterjee, for the
appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Dua, J. In this appeal by special leave the appellant Matru
alias Girish Chandra challenges his conviction under S. 302
read with s. 34, I.P.C. and under S. 382, I.P.C. For the
former offence he was sentenced to imprisonment for life and
for the latter to rigorous imprisonment for four years.
Both the sentences were directed to ran ‘concurrently.
The appellant, along with Mohar Singh and Saheb Singh were
committed to the court of Sessions for trial for offences
under ss. 302/34, I.P.C. for the murder of Smt. Omwati,
wife of Ram Chander (P.W. 1) and of their three years old
son Sua Lal and under s. 382, I.P.C. for committing theft of
cash, armaments and other things from the house of the
deceased. The offences were alleged to have been committed
on May 29, 1964 between 10 and II a.m. in the township of
Shamsabad.
The appellant and the deceased were admittedly next door
neighbors in Mohalla Chaukhanda at the relevant-time. Rain
Chandra had two sons, the elder one Ramji being six years
old. On the day of occurrence at about 9 a.m. Ram Chandra
left his house for his shop about three, furlongs away,
leaving behind in the house his wife and two sons. About an
hour later Omwati sent the elder son to the shop with some
food for his father. A few minutes later Ram Chandra sent
to his house some vegetables through his servant. After
sometime his servant returned to the shop and informed Ram
Chandra that his wife was lying in the house in pool of
blood. After calling his nephew to look after the shop Ram
Chandra immediately went to his house and found his wife
lying dead in the courtyard near the well whereas his 3 year
old son Sua Lal was lying dead in a room close to the
courtyard. The box inside the room also appeared to have
been opened and its contents pilfered. Some gold and silver
omaments which his deceased wife was wearing that morning
were found missing. Information of the occurrence was
lodged at the police station Shamsabad at about 12.40 in the
afternoon. But as he did not suspect anyone he merely
stated the circumstances in which he came to know of the
occurrence and found his wife and child dead in the house.
It was stated in the report that Rs. 200/- in cash and three
ornaments including a ring had been taken away by the
miscreants. Matru, appellant, who was the next door
neighbour came to Ram Chandra’s house before the first
information report was lodged and remained with him till the
917
report was made to the police. The investigating officer
found blood at both the places where the two dead bodies
were lying. The blood-stained and unstained earth was
collected and sealed. Next morning it appears Chhotey Lal
(P.W. 2) and Nathu Lal (P.W. 10) went to see Ram Chandra
between 6, and 7 a.m. Chhotey Lal informed him that he
(Chhotey Lal) had seen Matra and two unknown persons
entering Ram Chandra’s house at about 10 or 10.30 a.m. on
the previous day and Nathu Lal gave him the information that
at about 11 a.m. on the day of the occurrence he had seen
Matru and. two other persons coming out of his house. These
witnesses at that time did not attach any importance to the
three persons entering and after some time coming out of Ram
Chandra’s house. However, later when they leamt about the
double murder in Ram Chandra’s house between 1 0 and II a.m.
they thought that they should tell Ram Chandra what they had
seen on the morning of May 29 at about the time of the
occurrence.
It is said that about six months prior to the occurrence
relations between Omwati and the wife-of Matru, appellant,
had become strained. One of Matru’s daughter was married
and the other was of marriageable age but both were living
with their parents. Omwati suspected that some ‘people used
frequently to visit Matru’s house without any cogent reason
and also gave currency to this fact. Matru’s wife naturally
resented this. About six months prior to, the occurrence an
incident is stated to have taken place which gave rise to a
quarrel between the two women. Matru’s wife threw a stone
which struck Omwati on her head. Ram Chandra did not attach
much importance to this incident considering it to a matter
of common occurrence amongst womenfolk. Later, however,
Omwati seems to have told her husband that she had been
threatened by Matru’s wife with dire consequences. Ram
Chandra advised his wife not to have anything to do with
Matru’s wife. After the occurrence, the appellant, it
appears, remained in his house till the inquest was over but
thereafter he seems to have disappeared. On receiving in-
formation about Matru and his two companions going into his
house and coming out a short while later round about the
time of the occurrence, Ram Chandra informed the
investigating officer what he had been told by Chhotey Lal
and Nathu Lal. The Sub-Inspector searched the appellant’s
house at about 9 a.m. on May 30, but he was not found there,
nor was any incriminating thing found in the house. A
search for the appellant was made but he could not be traced
till three days later. On June 1, when the investigating
officer learnt that Matru was likely to go to his village to
see his children he was apprehended and on search of his
person a spectacle case containing a pair of spectacles and
a gold ring was recovered from the folds of his dhoti.
Complicity
918
of Mohar Singh because known to the police on Matru’s
interrogation. But Mohar Singh could not be arrested till
September 13, 1964. When arrested, he offered to recover a
shawl, one of ,the stolen properties, which he had sold to
Darbarilal (P.W. 17) for Rs. 70/-. The shawl was
accordingly recovered at Mohar Singh’s instance from
Darbarilal. Saheb Singh was also arrested on suspicion.
The Sessions Judge found the appellant guilty of murder and
also of an offence under S. 382, I.P.C. Since there was no
evidence of specific part played by the appellant the
extreme penalty was not imposed on him. As observed earlier
under S. 382, I.P.C. he was sentenced to four years rigorous
imprisonment. Mohar Singh was, acquitted of the offence
under S. 302/ 34, I.P.C. as also of the offence under S.
382, I.P.C. He was, however, convinced for an offence under
S. 411, I.P.C. and sentenced to rigorous imprisonment for
two years. Saheb Singh was given benefit of doubt and
acquitted. The only evidence against Saheb Singh was that
of his by Nathu Lal (P.W. 10) which was not corroborated by
any other evidence and identification alone in the
circumstances was considered unsafe for convicting him.
Both the convicts appealed to the High Court. That Court
came to the conclusion that Matru had a motive to commit the
crime and that Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10)
were reliable witnesses and that the investigation was
neither tainted nor unfair to the accused. The statement of
Ram Chandra (P.W. 1), husband of the deceased, and his
conduct throughout also appeared to be quite strains
forward. The ring, which had been recovered from Matru’s
possession at the time of his arrest was held to be the one
which the deceased was wearing when her husband left the
house in the morning of the occurrence.This was considered
to be a very incriminating circumstance. All these
circumstances taken along with the fact that Matru had
absconded were held to connect the appellant with the crime
beyond reasonable doubt. Mohar Singh, from whose possession
nothing had been recovered was given benefit of doubt and
acquitted. The recovery of the shawl from Darbarilal in the
absence of any writing was not considered to be
incriminating enough to justify Mohar Singh’s conviction
because it did not exclude reasonable doubt about his
innocence.
In this Court it was strongly argued on behalf of the appel-
lant Matru that the circumstantial evidence does not
establish his complicity in the offence charged. The Police
investigation was also assailed and it was submitted that
identification of the articles
919
alleged to have been stolen and later recovered was not of
much value because the articles alleged to have been
recovered were commonly available and had no distinguishing
marks of identification Objection was also raised to the
admissibility of Ex. Ka-4, a letter Written by the deceased
to her father in which reference was made to injury received
by her as a result of a brick thrown by Matru’s wife. This
ground was not included in the original memorandum of appeal
dated May 1, 1968 presented in this Court but permission to
raise this ground was sought by means of an application
dated July 25, 1968 which was allowed by this Court while
granting special leave. It was contended that this letter
was inadmissible in evidence as it did not contain any
statement relating to the cause of Omwati’s death or to the
circumstances of the transaction which resulted in her
death. According to the argument this letter did not fall
within the purview of any of the clauses of s. 32, Indian
Evidence Act under which-alone it could be hold admissible
in evidence. Shri Chari also submitted that the other two
co-accused having been acquitted, s. 34, I.P.C. became
inapplicable to the case of the appellant and his conviction
under s. 302 read with s. 34, I.P.C. must be held to be con-
trary to law. For this submission-he relied on Prabhu
Babaji Navle v. State of Bombay.(1) Finally counsel argued
on the authority of Hanumant v. State of M.P.(2) that in
case of circumstantial evidence the circumstances from which
the conclusion of guilt is to be drawn should be fully.
established and all the established facts should be
consistent only with the hypothesis of the guilt of the
accused. In the present case the circumstantial evidence is
not of conclusive nature and tendency, said Shri Chari.
Normally this Court doe& not go into the evidence and
appraise it for itself in criminal appeals under Art. 136 of
the Constitution because this Article does not confer a
right of appeal on a party. It merely clothes this Court
with discretionary power to scrutinise and go into the
evidence in special circumstances in order to satisfy itself
that substantial and grave injustice has not been done. In
the case before us we are persuaded to go into the evidence
because of several exceptional features. It was a case of
circumstantial evidence and the two accused who had been
charged along with the appellant under s. 302 read with s.
34, I.P.C. were acquitted. The appellant a neighbdur of the
deceased, remained With her husband at the place of
occurrence till the report was made to the police on the day
of the- murder. Indeed, he accompanied Ram Chandra for
lodging the report. The question of admissibility and value
of Ex. Ka-4 and the probative value of the identification
proceedings of the articles alleged to have been stolen and
recovered were also seriously canvassed at the Bar. And
apart from the argument that the circumstantial evidence on
(1) A.1 R,1956 S.C.51.
(2) [1952] S.C.R. 1091.
920
the record does not exclude reasonable possibility of the
appellants innocence, the further question was raised that
if these two pieces of evidence, namely Ex. Ka-4 and the
identification of the, articles were to be ignored then
there was absolutely no evidence on which a serious argument
about the appellant’s guilt-could be founded.
Now, the deceased Omwati and her infant son were undoubtedly
both murdered at about IO or 1 1 on the morning of May 29,
1964. Ram Chandra Gupta, the husband of Omwati had no
reason to suspect Matru, appellant, (his neighbour) of this
crime. In the F.I.R. Ex. Ka.-IO no one was named as a sus-
pect and only the following articles of property were stated
to be missing :,
1. Gold chain weighing about 3 tolas, plain
twisted design worth Rs. 375/-
2. One pair of gold jhumki together with
kundal weighing 1 1/2 tolas worth, Rs. 1501-;
3. One gold ring longitudinal design
weighing 1/2 tola worth Rs. 75/-. this was
stated to have been worn by the deceased; and
4. Currency notes worth Rs. 200/- stated to
have, been in the box.
It may here be pointed out that when P.W. I Ram Chandra came
into the witness box he attempted to prove Ex. Ka-3, a
supplementary list of missing articles which list, he said,
had been handed over to the investigating officer soon after
the preparation of the inquest report. The production of
this list was objected to and though the trial court relied
on it, the High Court ruled it out as hit by s. 162, Cr.
P.C. The position, therefore, remains that the description
of the ring in the F.I.R. is the only description we have on
the record and also that there is no mention of the
spectacle case and the spectacles in the F.I.R. Suspicion
fell on the appellant only when Chhotey Lal, barber (P.W. 2)
and Nathu Lal (P.W. 10) saw Ram Chandra on the following
morning (May 30, 1964) and informed him of what they had
separately seen on the morning of the 29th at about the time
of the alleged murder. What they conveyed to Ram Chandra
has already been noticed by us. It was on the basis of this
information that Ram Chandra is said to have informed the
investigating officer about his suspicion against the
appellant. The recovery of the articles, even if the
evidence of these two witnesses is believed, would have a
material bearing on the case because if the recovery
proceedings of the articles said to have been recovered
92 1
from the appellant’s possession does not inspire confidence
and it is not possible to hold beyond reasonable doubt that
these were the very articles found missing from the house of
the deceased, then it may be extremely difficult to sustain
the appellant’s conviction on the prosecution evidence. In
this connection particular importance attaches to the ring
stated to have been worn by the deceased because if that
ring is not proved to be the same which is alleged to have
been worn by the deceased Omwati at the time of her murder
then no inference would seem to arise against the appellant.
The prosecution case against the appellant is mainly sought
to be established by the evidence of P.W. 2 and P.W. 10 and
by the evidence relating to the recovery from the appellant
of the, articles alleged to belong to the deceased supported
by the evidence of motive on the part of the appellant for
committing this crime ‘and corroborated by the appellant’s
alleged conduct in trying to mislead Ram Chandra and the
investigating officer and’ finally by disappearing after the
lodging of the F.I.R. The trial court, as also the High
Court, both relied on these four pieces.. of evidence for
convicting the appellant.
To begin with it is notworthy that Ram Chandra himself does.
not seem to have thought that the appellant was inimical
towards. the deceased and he did not suspect the appellant
of complicity in the murder. According to his own testimony
it was only after Chhotey Lal (P.W. 2) and Nathu Lal (P.W.
10), had informed him about what they had seen on the
morning of May 29, that he recollected that about five or
six months prior to the occurrence there was an altercation
between Omwati and the appellant’s wife. This would clearly
indicate that the alleged altercation had not left any
serious impact on the mind of Ram Chandra and theapperant’s
admitted presence in the house of Ram Chandra till’ the
lodging of the F.I.R. indicates that relations between Ram
Chandra and the appellant were not openly hostile or
unfriendly. The evidence of P.W. 2 shows that the appellant
and two other persons came out of the appellant’s house and
entered the house of Ram Chandra on the morning of May 29,
and the evidence of P.W. 10 shows that the appellant and two
otherpersons came out of Ram Chandra’s house and entered
that of the appellant on the same morning a little later.
This evidencehaving been believed by the two courts below
may- be accepted. But so far as the question of time when
these two witnesses saw the appellant and two other persons
going. into and coming out of Ram Chandra’s house is
concerned they seem to have given the time from their
impression Ram Chandra (P.W. 1) does not say that P.W. 2 and
P.W. 10 had told him on the morning of May 30 that when they
saw the appellant and his two com-
922
panions on May 29, they had a Potli with them. It also
seems somewhat unbelievable that the appellant with his
companions should have entered the house of Ram Chandra with
the pur,Pose of committing murder and theft in broad
daylight particularly when P.W. 2, a barber who knew him and
lives about one furlong away from his house had actually
seen him. It is un.likely that the appellant should have
failed to notice P.W. 2. It is in the evidence of P.W. 2
that the, appellant and his companions came out of the
appellant’s house and entered that of Ram Chandra when the
witness called out the name of Panditji meaning thereby
Puttulal Pandit. Again, if the appellant and his two
companions had committed the gruesome murder of Omwati and
Sualal (Omwati aged 25 years had 4 incised wounds, 3 in the
neck and one in the abdominal cavity and :Sualal, 3 years
old, had three incised wounds on his neck and one on his
right wrist) within half ;In hour and had also stolen the
articles including a ring, a gold kundal, jhumki and silver
iori worn by the deceased on her person and also broken open
a box and removed therefrom a shawl and Rs. 200/- within a
short span of half an hour as alleged by the prosecution,
then it is somewhat surprising that ‘their movements and
behaviour should not have reflected any abnormality. At
least Nathu Lal does not seem to have noticed any abnormal
behaviour which Would excite his suspicion. Now, the
appellant and his companions were seen by P.W. 2 and P.W.
10, broadly speaking, between 1 0 and 1 1 in the morning.
We would give these two witnesses a margin for their
inaccuracy in regard to the time as deposed by them in the
witness box. P.W. 2, it may be reCalled, gives the time as
between 10 and 10.30 a.m. when he saw the appellant and his
companions and. P.W. 10 gives the time between 10.30 and 11
a.m. when he saw them coming out of the house of P.W. 1. The
F.I.R. was lodged at 12.40 p.in. which means that Ram
Chandra (P.W. 1) must have arrived at his house a little
earlier. The appellant, according to P.W. 1, had been with
him when the F.I. Report was got written at his house and he
went along with P.W. 1 for lodging the said report. The
behaviour and conduct of the appellant, judged by normal
standards, is not suggestive of his involvement in such
heinous crime, unless he was an experienced criminal (of
which there is no suggestion) with extraordinary balance of
mind and a disciplined control over his senses and
faculties. In the absence of any direct evidence this
consideration cannot be completely ruled out as irrelevant
when weighing the circumstantial evidence in a case like the
present.
This takes us to the recovery of the alleged stolen articles
from the appellant and their identification. The main
evidence
923
of recovery consists of the statements of Head Constable-
Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the
recovery memo Ex. Ka-1 dated June 1, 1964. P.W. 5 has.
deposed in his examination-in-chief that he did not know the
appellant. According to him, an approver had informed him
at about 7 p.m. on June 1, that the appellant would be
coming to his house that evening to meet his children. At
about 7.30 p.m.,: P.W. 5 along with Bankey, Nathu, Dilasa
and two constables sat near Bankey’s house waiting for the
appellant. It was the approver who pointed out the
appellant, whereupon, on being. interrogated by the witness,
the appellant tried to run away. He was, however,
apprehended. In the course of this process the appellant
received some injuries. Now, the person described as the
approver has not been produced as a witness and indeed even
his identity has not been disclosed. It is noteworthy that
there is no mention of any approver anywhere else on the
record. What is still more intriguing is that even though
Nathu was not previously known to the witness, within half
an hour of the information about the appellant’s expected
visit to his house P.W. 5 managed to collect Nathu and two
other persons for arresting him. The statement made by P.W.
5 in this connection makes interesting reading. He said:
“I received information through an approver at
about 7 P.M. that he shall come home to meet
his children from the jungle of Imadpur by
night. At this I sat near the house of Bankey
by the side of the passage, alongwith Bankey,
Nathu, Dilasa and two constables. Matru,
accused present in court came from the side of
Imadpur at about 7.30 O’clock. The approver
pointed him out. On being interrogated by me,
he took to his heels. I caught him after
surrounding and causing slight injuries to
him, When I duly searched his person in
presence of the witnesses, the case Ex. 3, was
recovered from the right plant of the dhoti
which he was Wearing. On opening it, the
spectacles, Ex. 2 and ring Ex. I were found
in it. I prepared their memo, Ex. Ka-1
correctly at that spot immediately and
obtained the signatures and thumb impressions
of the witnesses over it. I sealed the,
articles there after sewing them in
cloth…… Before the arrest of Matru, I and
the witnesses had searched each other’s
persons.”
In cross-examination it was elicited from him:
“The approver had not told me that he was
carrying articles also with him. I took the
witnesses for
924
help. I did not recognise him also. Imadpur
might be about half a mile from the place
where I arrested him. I did not make people,
sit on any other way. I sat on that very way.
I took Nathu with me while he was coming out
of a temple in Mauza Jatpura. I took Bankey
from Bazar Kalan and Dilasa from Mauza
Jatpura. I had not told the witnesses that
there was possibility of article
s being
recovered from him. I did not know Nathu from
before. I might have seen him. I did not
know that his name was Nathu. Matru was at a
distance of about ten paces towards the South
of me when I saw him for the first time. He
was coming from the western side.”
Now, considering the fact that it was only at about 7 p.m.
that the approver had informed P.W. 5 that the appellant was
coming to ‘his house and at 7.30 p.m. the arrest was
actually made, it seems to be somewhat surprising that he
should have within that short time collected Nathu, whom he
did not know before, Bankey and Dilasa from various places
and come to the spot in time for ,effecting the appellant’s
arrest and search. Bankey and Dilasa have also not been
produced as witnesses. Nathu, who has appeared as P.W. 10,
has stated in his examination-in-chief about the arrest and
search of the appellant in the following words:
“On the fourth day of murder, i.e., after a
gap of two days at about 7 p.m. the Head
constable took me, Bankey and others with him.
One person was keeping his face covered. He
asked me to accompany him saying that he had
to arrest a man. He had taken Dilasa as well.
We sat in moballa Tikuriya near the house of
Bankey. We searched the persons of the cons-
tables and Head Constable. We searched the
persons of us all. A little later, Matru
accused, present in court came from the
western side. The person who was with us
pointed out that he was Matru. Matru started
running away. At this the Head Constable and
the constables caught hold of him. They gave
him one or two danda blows while trying to
catch him. When his person was searched, a
case for keeping spectacles, containing a pair
of spectacles and a gold ring, was recovered
from the right phant of Matru accused. All
these things were sewn in cloth and sealed on
the spot. Memo was prepared there on the
spot. It was read ,out. My thumb impression
was also obtained. (Ex. Ka-1 read over) Yes.
These very contents were read. ,out (Shown Ex.
1-3 says) Now, I shall not be able to
925
identify the articles as to whether they are
the same or
some other. It happened long ago.”
P.W. 16, Jamuna Prasad, retired police constable is another
witness who claims to have been present at the time when
Matru was arrested. He was at that time posted as a
constable at P. S. Shamsabad. In examination-in-chief he
said nothing about the appellant’s arrest or the recovery of
the articles) from him. It was only in cross-examination
that he &-posed that he was with P.W. 5 at the time of the
appellant’s arrest and after arresting him the party
returned to the police station at about 8 or 8.30 p.m. His
version is:-
“Diwanji (presumably referring to P.W. 5) had
a talk with one person in my presence. After
that he asked me to go along with him. So I
accompanied him. We met- Bankey witness in
Kalan Bazar. I cannot tell whether Bankey has
got some shop or not or if he has got it,
where is it ? We met Nathu near the Maria.
After arresting Matroo, we returned to the
Police Station at about 8 or 8.30 O’clock in
the evening.”
He has, however, given no details of the articles recovered
nor about the appellant’s search. The testimony of these
witnesses is far from impressive and the story of recovery
is difficult to accept on its face value. The memo of
recovery is Ex. Ka-1. It purports to have been prepared at
7.30 p.m. on June 1, 1964. According to it on Matru’s
search, a spectacle case containing “a spectacle and a gold
ring as per description given below corresponding to the
case as offence no. 67 under sections 302/380, I.P.C. was
recovered from the right side of the phent of his dhoti.”
The description of the articles recovered, according to this
memo, is
1. One spectacle case of black colour,
having dark blue colour inside;
2. One spectacle, having brown frame.,
white glasses, not circular, half frame;
3. One gold ring, longitudinal deSign,
having green enamel with lengthwise, with red
and blue flowery design on the enamel. The
ring is somewhat bent.
It is signed by Head Constable, Ahibaran Singh and attested
by Bankey, Dilasa and Nathu. It does not mention the place
where the search was effected though the memo is stated to
have been prepared in a shop without giving- any particulars
of the shop. This memo does not materially add to the oral
testimony of recovery. This is all the evidence of recovery
of the articles. We
926
do not find it safe on this evidence to hold that the
articles mentioned in Ex. Ka-1 were recovered from the
appellant Possession at the time of his arrest on June 1,
1964 at 7.30 p.m. Neither P.W. 5, the investigating H. C.
nor Nathu, (P.W. 10) can be considered to be witnesses on
whom implicit reliance can be placed without proper
corroboration from a more disinterested and dependable
source. Having not been impressed by the evidence of
recovery, the identification test of the articles can be of
little help to the prosecution, though even on that point
the prosecution evidence is equally uninspiring.
Identification tests, it may be pointed out, do not
constitute substantive evidence. Such tests are primarily
meant for the purpose of helping the investigating agency
with an assurance that their progress with the investigation
into the offence is proceeding on right lines. Now,
although the articles are stated to have been recovered on
June 1, the test identification was held by Shri Jwala
Prasad Srivastava, Magistrate, on October 23, 1964. The
reason for this delay as suggested is that similar articles
had to be procured for mixing up with the articles
recovered. But the manner in which this delayed
identification has been held in this case is highly un-
satisfactory. Jwala Prasad Srivastava, Magistrate, First
Class,, who had conducted the test identification appeared
as P.W. 21, in his examination-in-chief he said:
“Even before the dates for identification
proceedings were fixed but the identification
could not be conducted because similar
articles had not been received. The articles
were opened and shown to the contractor once
so that correct articles could be brought. On
13-7-64 he made an application that the
articles should be shown to him. The articles
must have been shown to him within some days
after that. The date must have been mentioned
there but that order sheet is missing. Even
then I took a precaution that none except the
Contractor and the court mohair should see the
articles. Just after showing the articles to
the contractor, I got the same sealed in the
court room in my presence.
In cross-examination he said :
“The khol (case) Ex. 3 was old. Out of the
khols which were mixed, one or two were
perhaps new. That too was ‘Similar
(dissimilar ?) but the dissimilarity was not
so much, that I ought to have noted it (shown
paper No. 49/147 of S.C. File) Yes, this note
is mine.
‘The case of the spectacle is old one whereas
the mixed cases were new’ (marked Ex. Kha
19). The counsel for the accused persons
moved an application
627
on the same day after the identification
proceedings. I had, read it. The allegations
regarding the ring, were not correct. So I
did not note them in my order. The order
sheet of some particular dates regarding the
identification proceedings, were preserved ?
The same has been found. The order sheet of
two dates has been found. Out of them, one
bears the signature of my predecessor. I
recognise the same. (marked Ex. Kha 21). The
other one does not bear the signature of any
one. I do not remember exactly who presented
the application Ex. Kha 11. Perhaps it was
moved but the contractor’s man. That man used
to come frequently. Marginal note on Ex. Ka-
11 shown. That encircled in red pencil and
(marked X) I do not recognise the same. I
cannot tell who made this entry and when. At
present I cannot tell on which date the
articles were shown. I did not find any such
entry in the record which could tell on which
date the articles were shown to the
contractor. Only the word “allowed” is
written with the date 13-7-64………
articles before me. I do not remember his
name. I can only recognise him by face. It
is quite wrong that on 1-9-64 these articles
were brought to the court and were shown to
the witnesses. I do not remember orally on
which date these articles were taken out from
the malkhana. It is wrong to say that all the
articles which were to be mixed, were
dissimilar. Only the cases of the spectacles
were somewhat new.
The statement of this witness reveals the unsatisfactory
manner’ of dealing with the test identification. We are
unable to place any reliance on these proceedings.
This takes us to the question of motive. We have already
noticed that the altercation between the deceased Omwati and
the appellant’s wife does not seem to have been taken
seriously by either party. The proceedings under s. 107,
Cr. P. C. to which a reference has been made were started
by Ram Chandra against the appellant after the occurrence in
question and, therefore, they are not relevant on the
question of motive for the present offence of murder. The
appellant’s counsel questioned the admissibility of Ex. Ka-
4, the letter said to have been written by the deceased to
her father, on the ground that it did not fall within the purvi
ew of s. 32, Indian Evidence Act. The objection
appears prima facie on plain reading of the section to
possess
L1100 SUP CI/71
929
merit. But even if this letter were to be held admissible
we are not satisfied that the motive which this letter
suggests is of strong and impelling nature so as to induce
the murder of Omwati and her infant child. The motive
suggested by this letter, coupled with the testimony of P.W.
2 and P.W. 10, may at best give rise only to a suspicion
against the appellant; but suspicion however strong cannot
take the place of roof.
The appellant’s conduct in absconding was also relied upon.
Now, mere absconding by itself does not necessarily lead to
a firm conclusion of guilty mind. Even an innocent man may
feel panicky and try to evade arrest when wrongly suspected
of a grave crime; such is the instinct of self-Preservation.
The act of absconding is no doubt relevant piece of evidence
to be considered along with other evidence but its value
would always depend on the circumstances of each case.
Normally the courts are disinclined to attach much
importance to the act of absconding, treating it as a very
small item in the evidence for sustaining conviction. It
can scarcely be held as a determining link in completing the
chain of circumstantial evidence which must admit of no
other reasonable hypothesis than that of the guilt of the
‘accused. In the present case the appellant was with Ram
Chandra till the F.I.R. was lodged. If thereafter he felt
that he was being wrongly suspected and he tried to keep out
of the way we do not think this circumstance can be
considered to be necessarily evidence of a guilty mind
attempting to evade justice. It is not inconsistent with
his innocence.
One other circumstance which on the facts of this case also
deserves notice is the non-recovery of the weapon of offence
and the fact that no stains of blood were noticed by any one
on the appellant’s clothes even though he was with Ram
Chandra right upto the loding of the F.I.R. and even
accompanied him for that purpose. The courts below seem to
us to have failed to take into consideration all the
relevant facts and circumstances of the case. As proof of
the appellant’s guilt depended solely on circumstantial
evidence it was incumbent on the courts below to properly
consider and scrutinise all the material factors and
circumstances for determining whether the chain of
circumstantial evidence is so complete as to lead to the
only conclusion of the appellant’s guilt. In our view, the
cumulative effect of the circumstantial evidence in this
case falls far short of the test required for sustaining
conviction. We are, therefore, constrained to allow this
appeal, set aside the appellant’s conviction and acquit him.
V.P.S. Appeal allowed.
929