MATRU alias GIRISH CHANDRA v.

STATE OF UTTAR PRADESH

March 3, 1971

[P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]

Circumstanticl evidence-Weight of.

Thi' appellant and two others were charged with the offences of murder of a woman and her three year old son by brutally staobing 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 occur'rence there was a quarrel between the deceased and the wife of the appellant who was the next door neigh: bour during which the decease\! 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 infohnation of the murder he rushed home from his shop and gave information of the occurrence to the polic:e 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 irif,_rmed the husband of the deceased that he had seen the appellant and two unknown persons entering thehouse 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 -, pf the deceased passed on the information to the police.

By that tim~ the appellant had disappeared. Three days la(er, he was apprehended. 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 fligh 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 scrutinise all the matenal factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of guilt. [928 FHl

(1) Normally this Court does not go into evidence_ and appraise it for itself in c'r:iminal 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 irijustice 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-GJ

(2) (a) The husband of tihe deceased himself did not think that the appellant was inimical towards the deceased and he did not suspect him

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A 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 rela lions between them were not hostile or unfriendly. [921 D-FJ

( b) The letter written by the deceased to her father about the quarrel 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 o! sue<h a strong and impelling nature as to induce the murder of the deceased and her infant child. [927 H, 928 A-Bl

(3) (a) It is unbelievable that the appellant and his companions en tered . 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 behaviour of , the appellant did not show any abnormality. On the contrary, the behaviour and conduct of the appellant, judged by nolrmal standards, was not' suggestive of his involvement in such a heinous crime. In the absence of direct evid

ence 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 •.nd try to evade arrest when wrongly suspected of a grave crime.

Normally courts are !, lisinclined 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 w:ticles 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.Cl

(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 !heir progress with the investigation into the offence is proceeding on right lines. [920 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 pirocuted 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 •tains of blood were noticed by anyone on the appellant's 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 ftom the judgment and order dated February 8, 1968 of the Allahabad High Court in Criminal Appeal No. 2305 of 1965.

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A. S. R. Chari, J.P. Goyal and G. S. Chatterjee, for the A appellant.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by

Dua, J.

In this appeal by special leave the appellant Matru al(as Girish Chandra chal:enges his co, nviction 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 imprisomnent for four years.

Both the sentences were directed to run 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 com.nitting theft of cash, ornaments and . other things from the house of the deceased.

The offences were alleged to have been committed on May 29, 1964 between 10 and 11 a.m. in the township of Shamsabad.

The appellant a; nd the deceased were admittedly next door neighbours in Mohalla Chaukhanda at the relevant time. Ram Chandra had two sons, the elder onei Ramji being six years old.

On the day ef occurrence at about 9 a.m. Ram Chandra left his E 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 ]!is servant.

After sometime his servant returned_ to the shop and' informed Ram Chandra that his wife was lying in F the. house in pool 9f blood.

After calling his nephew to look after the shop Ram Chandra inunediately 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 ornaments which his deceased wife was wearing that morning were G 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 If taken away by the miscreants.

Matru, appllant, who was the next door neighbour came to Ram Chandr~'s houe bfori: the first information report was lodged and remamed with him !Ill the

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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 anti 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 Matru 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 learnt about the double murder in Ram Chandra's house between

10 and 11 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 rela tions 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 cur rency 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 re to a quarrel betweeq the two won\en.

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 amoogst W(\menfolk.

Later, however, Omwati seems to have told her hl!Sband that she had been threatened by Matru's wife with dire consequences.

Ram Chandra advised his wife not to have any thing to do with Matru's wife.

After the occurrence, the appel !ant, it appears, remained in his house till the inquest was over but thereafter he seems to have disappeared.

On receiving in formation about Matro 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 col/)d 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 ; pectacle case containing a pair of spectacles and a gold ring was recovered from the folds of his dhoti.

Complicity

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 offooce 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, cvinced 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 identification 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 thtcrime 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 straingtforward.

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 heia 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 froni Darbarila! in the absence of any writing v.as 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 circumsta, ntial evidence does not establish his complicity in the offence charged. The polic~ investigation was also assailed and it was submitted that identification of the articles

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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 w:nile 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 held 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 convic tion 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.(') Finally counsel argued on the authority of Hanumant v. State of M.P.(2 ) that in case of cir cumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the esta blished 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 does 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 cir cumstantial evidence and the two accused who had been charged alonll with the appelta.nt under s. 302 read with s. 34, I.P:C. were acquitted. The appellant a neighbour 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.

(l) A.l.R.1956 S.\:.51.

(2) [ 1952) S.C.R. 1091.

the record does not exclude reasonable possibility of the appellant's innocence, the further question was raised tha~ 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.

B Now, the deceased Omwati and her infant son were undoubtedly both murdered at about 10 or 11 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-10 no one was named as a suspect and only the following articles of property were stated to be c missing:

1. Gold chain weighing about 3 tolas, plain twisted design worth Rs. 3751-;

2. One pair of gold jhumki together with kundal weighing U tolas worth Rs. 1501-;

3. One gold ring longitudinal design weighing t Iola

worth Rs. 751-.

This was stated to have been worn by the deceased;· and

4. Currency notes worth Rs. 2001 - stated to have been in the box.

It may here be-pointed out that when P.W. 1 Ram Chandra came into the witness :box he at~mpted 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 ru?ed it out as hit by s. 162, Cr. P .C. The position, therefore, remains that the discription 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.l.R. Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and Nathu Lal (P.W. 10) saw Ralll Chandra on the following morning (May 30, 1964) and inforn1ed 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 thidnformation that Ram Chandra is said to have informed the investigating officer about his suspicion against the appellant.

The recovery of the articles, e\>.en if the evidence of ithese two witnesses is belived, would have a material bearing on the case "because if th~ recovery proceedings of the articles said to have been recovered

A from the appellant's possession does not inspire confidenoe 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 attach.:s to the ring stated to have been worn by B the deceased because !f that ring is not proved to be the same which is alleged to have beiln 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 C 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 try ing to mislead Ram Chandra and the investigating officer and finally by disappearing after the lodging of the F.I.R. The trial D 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 app-::llant's wife.

This would clearly indicate that the alleged altercation had not left any serious impact on the mind of Ram Chandra and the appellant's admitted presence in the ho~ of Ram Chandra till the lodgingof the F.l.R. indicates jiat relations between Ram Chandra and the appellant were not bpenly hostile or unfriendly.

The evidence of P.W. 2 shows thatthe 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 appe.llant on the same morning a little later. This evidence h-aving been believed b~ the. iv:o courts below may be accepted.

But so far as the quesl!on of lime 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 ttiven the time from their impression Ram Chandra (P.W. 1) doe~ 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 companions on May 29, they had. a Potli with them. It also seems somewhat unbelievabie .that the appellant with his compa!lions should have entered the house .of Ram Chandra with the purpose of committing murder and theft in broad daylight particu Iarly when P.W. 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 P .W. 2. It is in the evidence of P.W. 2 that the appellant and his com panions came out of the. _appellant's house and entered that .~~ Ram Chandra when the witness called out the name of Pand1t11 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 an 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 thdr 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 cc;>mpanions were seen by P.W. 2 and P.W. 10, broadly speaking, between 10 and 11 in the morning.

We would give these two witness.es 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 tin1e 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.l.R. was lodged at 12.40 p.m. which means that Ram Chandra (P.W. ,1) must have arrived at his house a little earlier. The appellant, according to P.W. l, 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 th~ said report.

Th.e 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 faculti.es.

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

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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 l, 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, Di!asa 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 !h¢ 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 disc!osea.

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 th~ 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 qf 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 recovere.d from the right phant of the clho!t which he was. wearing. On opening it, the spectacles, Ex. 2 and nng Ex. 1 were found in it. I prepared their memo, Ex. Ka-! 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 wa ing articles also with him I took the wi'! s carryf • nesses or

help. I Oid not recognise him also. Irnadpur might be about half a mile from the place where I arrested him. . I did not make peop1~ 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 J atpura. I took Bankey from Bazar Kalan and Dilasa from Mauza J atpuca.

I had not told the witnesses that there was possibility of articles being recovered from him.

I did not know Nathu from befor-~. 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 ihe 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 11<~ 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 th<~ appellant in the following words:

"On the fourth day of murder, i.e., after a gap of two days at abcut 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 we!l.

We sat in mohalla 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.

Th~ person who was with us poin\ed out that he was Matru. Matru started running away. At this the Head constable and the constables caug!Jrt 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, ws 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

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A 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 Jecovery of the articles from him.

It was only in cross-examination that he deposed that he was with P.W. 5 at the time of the appellant's arrest and after arresting him the party retnmed 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 bas 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. K~-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 3021380, I.P .C. was recovered from the riht 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 dsign, 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. JV'does not mention the place where the search was effected though the memo is stated to have been prepared in a shop withou! giving any particulars of th~ shop.

This memo does not materially add to the oral testimony of recovery. This is all the evidence of recovery of the aricles. We

do not find it safe on this evidence to hold that the articles men• tioned in Ex. Ka-1 were recovered from the appellan• s puss.:ssion 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 evideqce 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, althqugh tlie articles are stated to have been recoyered on June l, the test identificatiqn 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 identificaton 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 precautien that none except the Contracior and the court moharrir should see the articles.

Just after showing the arles to the contractor, I got the same sealed in the court room in my presence."

Jn 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 ( hown paper No. 491147 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

• A

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 iden tification 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." ..... .

. . . . . . Only one man of the contractor used to bring the 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 1the 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 G the apoellant'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 H 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 I 5-L ti OOSup CI/71

928 SUPREME COURT REPOJl.TS

(1971] 3 S.C.R.

merit. But even if this letter were to be held admissible we are A 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 wrong! y 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 fhough he was with Ram Chandra right upto the loding of the F.I.R. and even accompained 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.