minal 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 section R Chari J P Goyal and G section 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 section 302 read with section 34 IPC and under section 382 IPC
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 sections 30234 IPC for the murder of Smt
Omwati wife of Ram Chander PW 1 and of their three years old son Sua Lal and under section 382 IPC 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 am 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 am
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 1240 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 PW 2 and Nathu Lal PW 10 went to see Ram Chandra between 6 and 7 am Chhotey Lal informed him that he Chhotey Lal had seen Matra and two unknown persons entering Ram Chandra s house at about 10 or 1030 am on the previous day and Nathu Lal gave him the information that at about 11 am 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 am 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 am 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 PW 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 section 382 IPC Since there was no evidence of specific part played by the appellant the extreme penalty was not imposed on him
As observed earlier under section 382 IPC he was sentenced to four years rigorous imprisonment
Mohar Singh was acquitted of the offence under section 302 34 IPC as also of the offence under section 382 IPC He was however convinced for an offence under section 411 IPC 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 PW 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 PW 2 and Nathu Lal PW 10 were reliable witnesses and that the investigation was neither tainted nor unfair to the accused
The statement of Ram Chandra PW 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 exhibit 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 section 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 section 34 IPC became inapplicable to the case of the appellant and his conviction under section 302 read with section 34 IPC must be held to be con trary to law
For this submission he relied on Prabhu Babaji Navle vs State of Bombay1 Finally counsel argued on the authority of Hanumant vs State of MP2 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 article 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 section 302 read with section 34 IPC 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 exhibit 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 A1 R1956 SC51
2 1952 SCR 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 exhibit 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 FIR exhibit 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 12 tolas worth Rs 1501  3
One gold ring longitudinal design weighing 12 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 PW I Ram Chandra came into the witness box he attempted to prove exhibit 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 section 162 Cr
PC The position therefore remains that the description of the ring in the FIR 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 FIR Suspicion fell on the appellant only when Chhotey Lal barber PW 2 and Nathu Lal PW 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 PW 2 and PW 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 FIR 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 PW 2 and Nathu Lal PW 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 FIR indicates that relations between Ram Chandra and the appellant were not openly hostile or unfriendly
The evidence of PW 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 PW 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 PW 1 does not say that PW 2 and PW 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 purPose of committing murder and theft in broad daylight particularly when PW 2 a barber who knew him and lives about one furlong away from his house had actually seen him
It is unlikely that the appellant should have failed to notice PW 2
It is in the evidence of PW 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 PW 2 and PW 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
PW 2 it may be reCalled gives the time as between 10 and 1030 am when he saw the appellant and his companions and
PW 10 gives the time between 1030 and 11 am when he saw them coming out of the house of PW 1
The FIR was lodged at 1240 pin
which means that Ram Chandra PW 1 must have arrived at his house a little earlier
The appellant according to PW 1 had been with him when the FI Report was got written at his house and he went along with PW 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 PW 5 and of Nathu PW 10 and the recovery memo exhibit Ka 1 dated June 1 1964
PW 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 pm on June 1 that the appellant would be coming to his house that evening to meet his children
At about 730 pm PW 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 PW 5 managed to collect Nathu and two other persons for arresting him
The statement made by PW 5 in this connection makes interesting reading
He said I received information through an approver at about 7 PM 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 730 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 exhibit 3 was recovered from the right plant of the dhoti which he was Wearing
On opening it the spectacles exhibit 2 and ring exhibit I were found in it
I prepared their memo exhibit 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 pm that the approver had informed PW 5 that the appellant was coming to his house and at 730 pm 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 PW 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 ie after a gap of two days at about 7 pm 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
exhibit Ka 1 read over Yes
These very contents were read
out Shown exhibit 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
 PW 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 section 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 PW 5 at the time of the appellant s arrest and after arresting him the party returned to the police station at about 8 or 830 pm
His version is Diwanji presumably referring to PW 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 830 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 exhibit Ka 1
It purports to have been prepared at 730 pm 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 302380 IPC 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 exhibit Ka 1 were recovered from the appellant Possession at the time of his arrest on June 1 1964 at 730 pm
Neither PW 5 the investigating H C nor Nathu PW 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 PW 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 exhibit 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 49147 of SC File Yes this note is mine The case of the spectacle is old one whereas the mixed cases were new  marked exhibit 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 exhibit Kha 21
The other one does not bear the signature of any one
I do not remember exactly who presented the application exhibit Kha 11
Perhaps it was moved but the contractor s man
That man used to come frequently
Marginal note on exhibit 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 section 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 exhibit 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 section 32 Indian Evidence Act
The objection appears prima facie on plain reading of the section to possess L1100 SUP CI71 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 PW 2 and PW 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 FIR 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 FIR 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
VPS Appeal allowed


Summary:
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 am
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 1240 pm 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 1030 am on the previous day and another person gave the information that about 1100 am 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 article 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 FIR 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 section 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 bThe 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 FIR and even accompanied him for that purpose
928 E F