Matru Alias Girish Chandra Vs. State of
Uttar Pradesh  INSC 71 (3 March 1971)
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1050 1971 SCR (3) 914 1971
SCC (2) 75
Circumstantial evidence-Weight of.
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 SessionsJudge 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 circumstantial 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 AB] (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
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
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]
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
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
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 information
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 appellant 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 contrary 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 themurder.
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)  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 suspect and only the following articles of property were stated to
be missing :,
1. Gold chain weighing about 3 to las, 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
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 the apperant'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 other persons came out of Ram Chandra's house and entered that of the
appellant on the same morning a little later.
This evidence having been believed by the two
courts below maybe 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 com922
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 broke open a box and removed there from 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
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 ConstableAhibaran 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
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 constables 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 metBankey 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 unsatisfactory. 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. Ka11 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.
Ka4, the letter said to have been written by the deceased to her father, on the
ground that it did not fall within the purview 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 loading 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.