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PETITIONER: MATRU alias GIRISH CHANDRA

       Vs.

RESPONDENT: STATE OF UTTTAR PRADESH

DATE OF JUDGMENT03/03/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1050            1971 SCR  (3) 914  1971 SCC  (2)  75

ACT: Circumstantial evidence-- Weight of.

HEADNOTE: The appellant and two others were charged with the  offences of murder of a woman and her three year old son by  brutally stabbing  them,  and theft of cash and  ornaments  from  the house  of the deceased.  The offences were alleged  to  have been committed between 10 and 11 a.m. About six months prior to the occurrence there was a quarrel between  the deceased and the wife of the appellant who  was the next door neighbor during which the deceased received an injury.   The  deceased  wrote about this  incident  to  her father.   On the day of the occurrence when the  husband  of the  deceased received information of the murder  he  rushed home from his shop and gave information of the occurrence to the  police at about 12.40 p.m. but, as he did  not  suspect anyone,  he merely, mentioned the circumstances in which  he had come to know of the murder.  The appellant was with  him till the time when the First Information Report was  lodged. Next morning one person informed the husband of the deceased that  he  had  seen the appellant and  two  unknown  persons entering the house of the deceased at about 10 or 10.30 a.m. on the previous day and another person gave the  information that  about  11.00 a.m. he had seen the  appellant  and  two other  persons coming out of his house.  The husband of  the deceased  passed on the information to the police.  By  that time  the appellant had disappeared.  Three days  later,  he was  appellant handed.  On search of his person a  spectacle case  containing a pair of spectacles and a gold  ring  were recovered from the folds of his dhoti.  The Sessions-  Judge found  the  appellant guilty of murder and  the  High  Court confirmed  the  conviction.   The  other  two  accused  were acquitted. On appeal to this Court, HELD  : The cumulative effect of circumstantial evidence  in the  present  case  falls short of  the  test  required  for sustaining  a  conviction.   When proof  of  guilt  depended solely  on circumstantial evidence, it was incumbent on  the courts to properly consider and scruitinise all the material factors and circumstances for determining whether the  chain of circumstantial evidence is so complete as to lead to  the

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only conclusion of guilt. [928 F-H] (1)  Normally  this  Court  does not go  into  evidence  and appraise it for itself in criminal appeals under Art. 136 of the  Constitution,  because, the Article does not  confer  a right  of  appeal.   It  merely  clothes  this  Court   with discretionary  Power to scrutinise and go into the  evidence in  special  circumstances in order to satisfy  itself  that injustice  has  not  been done.  In  the  present  case  the exceptional  features  were  that  it was  a  case  of  cir- cumstantial  evidence,  the  identification  of  the  stolen articles  was unsatisfactory, and the other two accused  who had  been  charged  along  with  the  appellant,  had   been acquitted. [919 F-G] (2)  (a)  The husband of the deceased himself did not  think that the appellant was inimical towards the deceased and  he did not suspect him                             915 of  complicity  in  the  murder.   The  alleged  altercation between the deceased and the appellant’s wife did not  leave any  serious  impact  on  the mind of  the  husband  of  the deceased, and the appellant’s admitted presence in the house of  the  deceased till the lodging of the  F.I.R.  indicated that relations between them were not hostile or  unfriendly. [921 D-F] (b)  The letter written by the deceased to her father  about the  quarrels does not prima facie fall within the   purview of S. 32, Indian Evidence Act.     But  even if this  letter were held to be admissible the motive which it Suggested was not  of such a strong and impelling nature as to induce  the murder of the deceased and her infant child. [927 H, 928  A- B] (3)  (a)  It  is  unbelievable that the  appellant  and  his companions entered the house of the deceased for the purpose of  committing  murder  and theft in broad  day  light  when persons  who  knew him were likely to see him  entering  the house.  The movements and behavior of the appellant did  not show  any  abnormality.  On the contrary, the  behavior  and conduct  of the appellant, Judged by normal  standards,  was not  suggestive of his involvement in such a heinous  crime. In  the absence of direct evidence this consideration  could not be ruled out as irrelevant. [922 A-B, D-E,    G-H] (b)The   appellant’s   conduct  in   absconding   does   not necessarily lead to the inference of a guilty mind.  Even an innocent  person  may feel panicky and try to  evade  arrest when  wrongly suspected of a grave crime.   Normally  courts are  disinclined  to attach much importance to  the  act  of absconding. of the accused, treating it as a very small item in the evidence for sustaining conviction. [928 B-D] (4)  The  evidence ’regarding the recovery of  the  articles from  the appellant’s possession at the time of  his  arrest was not acceptable without proper corroboration from a  more disinterested and dependable source.  Also, the ring said to have  been  recovered  was of a  common  design  and  easily available. [926 A-C] (5)  The identification of the ring was also unsatisfactory. Identification tests do not constitute substantive evidence. They  are  primarily meant for the purpose  of  helping  the investigating  agency with an assurance that their  progress with  the  investigation into the offence  is-proceeding  on right lines. [192O F-G, 926 G-H] In  the present case, although the articles  were  recovered three days after the occurrence the test identification  was held by the Magistrate nearly four months later.  The reason for the delay was suggested that similar articles had to  be procured for mixing up with the articles recovered; ,but  in

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fact  the delayed identification had been held in  a  highly unsatisfactory  manner, in that the articles mixed  up  were dissimilar. [926 C-D] (6)  The  weapon with which the crime was committed was  not recovered, and, no stains of blood were noticed by anyone on the, appellants clothes even though he was with the  husband of  the deceased right up to the lodging of the  F.I.R.  and even accompanied him for that purpose. [928 E-F]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165  of 1968. Appeal  by special leave from the judgment and  order  dated February  8  1968 of the Allahabad High  Court  in  Criminal Appeal No. 2305 of 1965. 916 A.   S.  R. Chari J. P. Goyal and G. S. Chatterjee, for  the appellant. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Dua, J. In this appeal by special leave the appellant  Matru alias Girish Chandra challenges his conviction under S.  302 read  with  s. 34, I.P.C. and under S. 382, I.P.C.  For  the former offence he was sentenced to imprisonment for life and for  the  latter to rigorous imprisonment  for  four  years. Both the sentences were directed to ran ’concurrently. The  appellant, along with Mohar Singh and Saheb Singh  were committed  to the court of Sessions for trial  for  offences under  ss.  302/34, I.P.C. for the murder of  Smt.   Omwati, wife  of Ram Chander (P.W. 1) and of their three  years  old son Sua Lal and under s. 382, I.P.C. for committing theft of cash,  armaments  and  other things from the  house  of  the deceased.  The offences were alleged to have been  committed on  May 29, 1964 between 10 and II a.m. in the  township  of Shamsabad. The  appellant  and the deceased were admittedly  next  door neighbors in Mohalla Chaukhanda at the relevant-time.   Rain Chandra  had two sons, the elder one Ramji being  six  years old.   On the day of occurrence at about 9 a.m. Ram  Chandra left  his  house for his shop about  three,  furlongs  away, leaving behind in the house his wife and two sons.  About an hour  later Omwati sent the elder son to the shop with  some food  for his father.  A few minutes later Ram Chandra  sent to  his  house some vegetables through his  servant.   After sometime  his servant returned to the shop and informed  Ram Chandra  that  his wife was lying in the house  in  pool  of blood.  After calling his nephew to look after the shop  Ram Chandra  immediately  went to his house and found  his  wife lying dead in the courtyard near the well whereas his 3 year old  son  Sua  Lal was lying dead in a  room  close  to  the courtyard.   The box inside the room also appeared  to  have been opened and its contents pilfered.  Some gold and silver omaments  which his deceased wife was wearing  that  morning were  found  missing.   Information of  the  occurrence  was lodged at the police station Shamsabad at about 12.40 in the afternoon.   But  as  he did not suspect  anyone  he  merely stated  the  circumstances in which he came to know  of  the occurrence  and found his wife and child dead in the  house. It was stated in the report that Rs. 200/- in cash and three ornaments  including  a  ring had been  taken  away  by  the miscreants.   Matru,  appellant,  who  was  the  next   door neighbour  came  to  Ram Chandra’s house  before  the  first information report was lodged and remained with him till the

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                           917 report  was made to the police.  The  investigating  officer found  blood  at both the places where the two  dead  bodies were  lying.   The  blood-stained and  unstained  earth  was collected  and sealed.  Next morning it appears Chhotey  Lal (P.W.  2)  and Nathu Lal (P.W. 10) went to see  Ram  Chandra between  6,  and  7 a.m. Chhotey Lal informed  him  that  he (Chhotey  Lal)  had  seen  Matra  and  two  unknown  persons entering  Ram Chandra’s house at about 10 or 10.30  a.m.  on the previous day and Nathu Lal gave him the information that at  about 11 a.m. on the day of the occurrence he  had  seen Matru and. two other persons coming out of his house.  These witnesses at that time did not attach any importance to  the three persons entering and after some time coming out of Ram Chandra’s  house.  However, later when they leamt about  the double murder in Ram Chandra’s house between 1 0 and II a.m. they thought that they should tell Ram Chandra what they had seen  on  the  morning of May 29 at about the  time  of  the occurrence. It  is  said that about six months prior to  the  occurrence relations  between Omwati and the wife-of Matru,  appellant, had  become strained.  One of Matru’s daughter  was  married and  the other was of marriageable age but both were  living with their parents.  Omwati suspected that some ’people used frequently to visit Matru’s house without any cogent  reason and also gave currency to this fact.  Matru’s wife naturally resented this.  About six months prior to, the occurrence an incident is stated to have taken place which gave rise to  a quarrel  between the two women.  Matru’s wife threw a  stone which struck Omwati on her head.  Ram Chandra did not attach much importance to this incident considering it to a  matter of  common  occurrence amongst womenfolk.   Later,  however, Omwati  seems  to have told her husband that  she  had  been threatened  by  Matru’s wife with  dire  consequences.   Ram Chandra  advised  his wife not to have anything to  do  with Matru’s  wife.   After  the occurrence,  the  appellant,  it appears, remained in his house till the inquest was over but thereafter  he seems to have disappeared.  On receiving  in- formation about Matru and his two companions going into  his house  and  coming out a short while later round  about  the time   of   the  occurrence,  Ram   Chandra   informed   the investigating  officer what he had been told by Chhotey  Lal and  Nathu Lal.  The Sub-Inspector searched the  appellant’s house at about 9 a.m. on May 30, but he was not found there, nor  was  any  incriminating thing found in  the  house.   A search for the appellant was made but he could not be traced till  three days later.  On June 1, when  the  investigating officer learnt that Matru was likely to go to his village to see  his  children he was apprehended and on search  of  his person a spectacle case containing a pair of spectacles  and a  gold  ring  was recovered from the folds  of  his  dhoti. Complicity 918 of  Mohar  Singh  because known to  the  police  on  Matru’s interrogation.   But Mohar Singh could not be arrested  till September 13, 1964.  When arrested, he offered to recover  a shawl,  one of ,the stolen properties, which he had sold  to Darbarilal   (P.W.  17)  for  Rs.  70/-.   The   shawl   was accordingly   recovered  at  Mohar  Singh’s  instance   from Darbarilal.  Saheb Singh was also arrested on suspicion. The Sessions Judge found the appellant guilty of murder  and also  of an offence under S. 382, I.P.C. Since there was  no evidence  of  specific  part played  by  the  appellant  the extreme penalty was not imposed on him.  As observed earlier under S. 382, I.P.C. he was sentenced to four years rigorous

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imprisonment.   Mohar  Singh was, acquitted of  the  offence under  S.  302/ 34, I.P.C. as also of the offence  under  S. 382, I.P.C. He was, however, convinced for an offence  under S.  411, I.P.C. and sentenced to rigorous  imprisonment  for two  years.   Saheb  Singh was given benefit  of  doubt  and acquitted.   The only evidence against Saheb Singh was  that of his by Nathu Lal (P.W. 10) which was not corroborated  by any   other  evidence  and  identification  alone   in   the circumstances was considered unsafe for convicting him. Both  the convicts appealed to the High Court.   That  Court came to the conclusion that Matru had a motive to commit the crime and that Chhotey Lal (P.W. 2) and Nathu Lal (P.W.  10) were  reliable  witnesses  and that  the  investigation  was neither tainted nor unfair to the accused.  The statement of Ram  Chandra  (P.W.  1), husband of the  deceased,  and  his conduct  throughout  also  appeared  to  be  quite   strains forward.   The ring, which had been recovered  from  Matru’s possession at the time of his arrest was held to be the  one which  the  deceased was wearing when her husband  left  the house  in the morning of the occurrence.This was  considered to   be  a  very  incriminating  circumstance.   All   these circumstances  taken  along  with the fact  that  Matru  had absconded were held to connect the appellant with the  crime beyond reasonable doubt.  Mohar Singh, from whose possession nothing  had been recovered was given benefit of  doubt  and acquitted.  The recovery of the shawl from Darbarilal in the absence   of   any  writing  was  not   considered   to   be incriminating  enough  to justify Mohar  Singh’s  conviction because  it  did  not exclude  reasonable  doubt  about  his innocence. In this Court it was strongly argued on behalf of the appel- lant  Matru  that  the  circumstantial  evidence  does   not establish his complicity in the offence charged.  The Police investigation  was also assailed and it was  submitted  that identification of the articles 919 alleged  to have been stolen and later recovered was not  of much  value  because  the  articles  alleged  to  have  been recovered were commonly available and had no  distinguishing marks  of  identification Objection was also raised  to  the admissibility of Ex.  Ka-4, a letter Written by the deceased to her father in which reference was made to injury received by her as a result of a brick thrown by Matru’s wife.   This ground was not included in the original memorandum of appeal dated May 1, 1968 presented in this Court but permission  to raise  this  ground was sought by means  of  an  application dated  July 25, 1968 which was allowed by this  Court  while granting  special leave.  It was contended that this  letter was  inadmissible  in  evidence as it did  not  contain  any statement relating to the cause of Omwati’s death or to  the circumstances  of  the  transaction which  resulted  in  her death.   According to the argument this letter did not  fall within  the purview of any of the clauses of s.  32,  Indian Evidence  Act under which-alone it could be hold  admissible in  evidence.  Shri Chari also submitted that the other  two co-accused  having  been  acquitted, s.  34,  I.P.C.  became inapplicable to the case of the appellant and his conviction under s. 302 read with s. 34, I.P.C. must be held to be con- trary  to  law.   For this submission-he  relied  on  Prabhu Babaji  Navle v. State of Bombay.(1) Finally counsel  argued on  the  authority of Hanumant v. State of M.P.(2)  that  in case of circumstantial evidence the circumstances from which the  conclusion  of guilt is to be drawn  should  be  fully. established   and  all  the  established  facts  should   be consistent  only  with the hypothesis of the  guilt  of  the

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accused.  In the present case the circumstantial evidence is not of conclusive nature and tendency, said Shri Chari. Normally  this  Court  doe& not go  into  the  evidence  and appraise it for itself in criminal appeals under Art. 136 of the  Constitution  because this Article does  not  confer  a right  of appeal on a party.  It merely clothes  this  Court with  discretionary  power  to scrutinise and  go  into  the evidence in special circumstances in order to satisfy itself that substantial and grave injustice has not been done.   In the case before us we are persuaded to go into the  evidence because  of several exceptional features.  It was a case  of circumstantial  evidence  and the two accused who  had  been charged  along with the appellant under s. 302 read with  s. 34, I.P.C. were acquitted.  The appellant a neighbdur of the deceased,  remained  With  her  husband  at  the  place   of occurrence till the report was made to the police on the day of the-  murder.  Indeed, he accompanied Ram  Chandra  for lodging the report.  The question of admissibility and value of  Ex.  Ka-4 and the probative value of the  identification proceedings of the articles alleged to have been stolen  and recovered  were  also seriously canvassed at  the  Bar.  And apart from the argument that the circumstantial evidence on (1) A.1 R,1956 S.C.51. (2) [1952] S.C.R. 1091. 920 the  record does not exclude reasonable possibility  of  the appellants  innocence, the further question was raised  that if  these two pieces of evidence, namely Ex.  Ka-4  and  the identification  of  the, articles were to  be  ignored  then there was absolutely no evidence on which a serious argument about the appellant’s guilt-could be founded. Now, the deceased Omwati and her infant son were undoubtedly both  murdered at about IO or 1 1 on the morning of May  29, 1964.   Ram  Chandra  Gupta, the husband of  Omwati  had  no reason to suspect Matru, appellant, (his neighbour) of  this crime.  In the F.I.R. Ex.  Ka.-IO no one was named as a sus- pect and only the following articles of property were stated to be missing :,               1.    Gold chain weighing about 3 tolas, plain               twisted design worth Rs. 375/-               2.    One  pair of gold jhumki  together  with               kundal weighing 1 1/2 tolas worth, Rs. 1501-;               3.    One   gold  ring   longitudinal   design               weighing  1/2  tola worth Rs. 75/-.  this  was               stated to have been worn by the deceased; and               4.    Currency notes worth Rs. 200/- stated to               have, been in the box. It may here be pointed out that when P.W. I Ram Chandra came into  the  witness box he attempted to prove  Ex.   Ka-3,  a supplementary list of missing articles which list, he  said, had been handed over to the investigating officer soon after the  preparation of the inquest report.  The  production  of this list was objected to and though the trial court  relied on  it,  the High Court ruled it out as hit by s.  162,  Cr. P.C.  The position, therefore, remains that the  description of the ring in the F.I.R. is the only description we have on the  record  and  also  that there  is  no  mention  of  the spectacle  case and the spectacles in the  F.I.R.  Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and  Nathu  Lal (P.W. 10) saw Ram Chandra on  the  following morning  (May 30, 1964) and informed him of what  they  had separately seen on the morning of the 29th at about the time of  the alleged murder.  What they conveyed to  Ram  Chandra has already been noticed by us.  It was on the basis of this information  that Ram Chandra is said to have  informed  the

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investigating  officer  about  his  suspicion  against   the appellant.   The  recovery  of the  articles,  even  if  the evidence  of these two witnesses is believed, would  have  a material  bearing  on  the  case  because  if  the  recovery proceedings of the articles said to have been recovered 92 1 from the appellant’s possession does not inspire  confidence and it is not possible to hold beyond reasonable doubt  that these were the very articles found missing from the house of the deceased, then it may be extremely difficult to  sustain the appellant’s conviction on the prosecution evidence.   In this  connection particular importance attaches to the  ring stated  to  have been worn by the deceased because  if  that ring  is not proved to be the same which is alleged to  have been  worn by the deceased Omwati at the time of her  murder then no inference would seem to arise against the appellant. The prosecution case against the appellant is mainly  sought to be established by the evidence of P.W. 2 and P.W. 10  and by the evidence relating to the recovery from the  appellant of the, articles alleged to belong to the deceased supported by  the evidence of motive on the part of the appellant  for committing  this crime ’and corroborated by the  appellant’s alleged  conduct  in trying to mislead Ram Chandra  and  the investigating officer and’ finally by disappearing after the lodging  of  the F.I.R. The trial court, as  also  the  High Court,  both relied on these four pieces.. of  evidence  for convicting the appellant. To begin with it is notworthy that Ram Chandra himself does. not  seem  to have thought that the appellant  was  inimical towards.  the deceased and he did not suspect the  appellant of complicity in the murder.  According to his own testimony it  was only after Chhotey Lal (P.W. 2) and Nathu Lal  (P.W. 10),  had  informed  him about what they  had  seen  on  the morning  of May 29, that he recollected that about  five  or six months prior to the occurrence there was an  altercation between Omwati and the appellant’s wife.  This would clearly indicate  that  the  alleged altercation had  not  left  any serious impact on the mind of Ram Chandra and  theapperant’s admitted  presence  in the house of Ram  Chandra  till’  the lodging  of the F.I.R. indicates that relations between  Ram Chandra  and  the  appellant  were  not  openly  hostile  or unfriendly.  The evidence of P.W. 2 shows that the appellant and two other persons came out of the appellant’s house  and entered  the house of Ram Chandra on the morning of May  29, and the evidence of P.W. 10 shows that the appellant and two otherpersons  came  out of Ram Chandra’s house  and  entered that  of the appellant on the same morning a  little  later. This  evidencehaving been believed by the two  courts  below may-  be accepted.  But so far as the question of time  when these two witnesses saw the appellant and two other  persons going.  into  and  coming  out of  Ram  Chandra’s  house  is concerned  they  seem  to have given  the  time  from  their impression Ram Chandra (P.W. 1) does not say that P.W. 2 and P.W. 10 had told him on the morning of May 30 that when they saw the appellant and his two com- 922 panions  on  May 29, they had a Potli with  them.   It  also seems  somewhat  unbelievable that the  appellant  with  his companions should have entered the house of Ram Chandra with the  pur,Pose  of  committing  murder  and  theft  in  broad daylight particularly when P.W. 2, a barber who knew him and lives  about  one furlong away from his house  had  actually seen  him.  It is un.likely that the appellant  should  have failed  to  notice P.W. 2. It is in the evidence of  P.W.  2 that  the,  appellant  and his companions came  out  of  the

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appellant’s  house and entered that of Ram Chandra when  the witness  called  out the name of  Panditji  meaning  thereby Puttulal  Pandit.   Again,  if the  appellant  and  his  two companions  had committed the gruesome murder of Omwati  and Sualal (Omwati aged 25 years had 4 incised wounds, 3 in  the neck  and one in the abdominal cavity and :Sualal,  3  years old,  had  three incised wounds on his neck and one  on  his right  wrist) within half ;In hour and had also  stolen  the articles including a ring, a gold kundal, jhumki and  silver iori worn by the deceased on her person and also broken open a  box and removed therefrom a shawl and Rs. 200/- within  a short  span of half an hour as alleged by  the  prosecution, then  it  is somewhat surprising that ’their  movements  and behaviour  should  not have reflected any  abnormality.   At least  Nathu Lal does not seem to have noticed any  abnormal behaviour  which  Would  excite  his  suspicion.   Now,  the appellant  and his companions were seen by P.W. 2  and  P.W. 10,  broadly speaking, between 1 0 and 1 1 in  the  morning. We  would  give  these  two witnesses  a  margin  for  their inaccuracy  in regard to the time as deposed by them in  the witness box.  P.W. 2, it may be reCalled, gives the time  as between 10 and 10.30 a.m. when he saw the appellant and  his companions and.  P.W. 10 gives the time between 10.30 and 11 a.m. when he saw them coming out of the house of P.W. 1. The F.I.R.  was  lodged  at 12.40 p.in.  which  means  that  Ram Chandra  (P.W. 1) must have arrived at his house  a  little earlier.  The appellant, according to P.W. 1, had been  with him when the F.I. Report was got written at his house and he went  along  with P.W. 1 for lodging the said  report.   The behaviour  and  conduct of the appellant, judged  by  normal standards,  is  not suggestive of his  involvement  in  such heinous  crime,  unless he was an experienced  criminal  (of which there is no suggestion) with extraordinary balance  of mind   and  a  disciplined  control  over  his  senses   and faculties.   In  the  absence of any  direct  evidence  this consideration  cannot be completely ruled out as  irrelevant when weighing the circumstantial evidence in a case like the present. This takes us to the recovery of the alleged stolen articles from  the  appellant  and their  identification.   The  main evidence 923 of  recovery consists of the statements of  Head  Constable- Ahibaran  Singh  (P.W.  5) and of Nathu (P.W.  10)  and  the recovery  memo  Ex.  Ka-1 dated June 1, 1964.  P.W.  5  has. deposed in his examination-in-chief that he did not know the appellant.   According to him, an approver had informed  him at  about  7  p.m. on June 1, that the  appellant  would  be coming  to his house that evening to meet his children.   At about  7.30 p.m.,: P.W. 5 along with Bankey,  Nathu,  Dilasa and  two constables sat near Bankey’s house waiting for  the appellant.   It  was  the  approver  who  pointed  out   the appellant, whereupon, on being. interrogated by the witness, the   appellant  tried  to  run  away.   He  was,   however, apprehended.   In the course of this process  the  appellant received  some injuries.  Now, the person described  as  the approver has not been produced as a witness and indeed  even his identity has not been disclosed.  It is noteworthy  that there  is  no mention of any approver anywhere else  on  the record.   What is still more intriguing is that even  though Nathu  was not previously known to the witness, within  half an  hour of the information about the  appellant’s  expected visit  to his house P.W. 5 managed to collect Nathu and  two other persons for arresting him.  The statement made by P.W. 5 in this connection makes interesting reading.  He said:

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             "I received information through an approver at               about  7 P.M. that he shall come home to  meet               his  children  from the jungle of  Imadpur  by               night.  At this I sat near the house of Bankey               by the side of the passage, alongwith  Bankey,               Nathu,  Dilasa  and  two  constables.   Matru,               accused present in court came from the side of               Imadpur  at about 7.30 O’clock.  The  approver               pointed him out.  On being interrogated by me,               he  took  to his heels.  I  caught  him  after               surrounding  and  causing slight  injuries  to               him,  When  I  duly  searched  his  person  in               presence of the witnesses, the case Ex. 3, was               recovered  from the right plant of  the  dhoti               which  he  was Wearing.  On  opening  it,  the               spectacles,  Ex. 2 and ring Ex.  I were  found               in  it.   I  prepared their  memo,  Ex.   Ka-1               correctly   at  that  spot   immediately   and               obtained the signatures and thumb  impressions               of  the  witnesses  over it.   I  sealed  the,               articles   there   after   sewing   them    in               cloth...... Before the arrest of Matru, I  and               the   witnesses  had  searched  each   other’s               persons."               In cross-examination it was elicited from him:               "The  approver  had not told me  that  he  was               carrying  articles also with him.  I took  the               witnesses for               924               help.  I did not recognise him also.  Imadpur               might  be  about half a mile  from  the  place               where I arrested him.  I did not make  people,               sit on any other way.  I sat on that very way.               I  took Nathu with me while he was coming  out               of  a temple in Mauza Jatpura.  I took  Bankey               from   Bazar  Kalan  and  Dilasa  from   Mauza               Jatpura.   I had not told the  witnesses  that                             there   was  possibility  of   article s   being               recovered from him.  I did not know Nathu from               before.   I  might have seen him.  I  did  not               know that his name was Nathu.  Matru was at  a               distance of about ten paces towards the  South               of  me when I saw him for the first time.   He               was coming from the western side." Now,  considering the fact that it was only at about 7  p.m. that the approver had informed P.W. 5 that the appellant was coming  to  ’his  house  and at 7.30  p.m.  the  arrest  was actually  made, it seems to be somewhat surprising  that  he should have within that short time collected Nathu, whom  he did  not know before, Bankey and Dilasa from various  places and come to the spot in time for ,effecting the  appellant’s arrest  and  search.  Bankey and Dilasa have also  not  been produced as witnesses.  Nathu, who has appeared as P.W. 10, has stated in his examination-in-chief about the arrest  and search of the appellant in the following words:               "On  the fourth day of murder, i.e.,  after  a               gap  of  two  days at about 7  p.m.  the  Head               constable took me, Bankey and others with him.               One  person was keeping his face covered.   He               asked  me to accompany him saying that he  had               to arrest a man.  He had taken Dilasa as well.               We  sat in moballa Tikuriya near the house  of               Bankey.  We searched the persons of the  cons-               tables  and Head Constable.  We  searched  the

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             persons  of  us all.  A  little  later,  Matru               accused,  present  in  court  came  from   the               western  side.   The person who  was  with  us               pointed out that he was Matru.  Matru  started               running away.  At this the Head Constable  and               the constables caught hold of him.  They  gave               him  one  or two danda blows while  trying  to               catch  him.  When his person was  searched,  a               case for keeping spectacles, containing a pair               of  spectacles and a gold ring, was  recovered               from  the right phant of Matru  accused.   All               these things were sewn in cloth and sealed  on               the  spot.   Memo was prepared  there  on  the               spot.  It was read ,out.  My thumb  impression               was also obtained. (Ex.  Ka-1 read over)  Yes.               These very contents were read. ,out (Shown Ex.               1-3 says) Now, I shall not be able to               925               identify  the articles as to whether they  are               the same or               some other.  It happened long ago." P.W. 16, Jamuna Prasad, retired police constable is  another witness  who  claims to have been present at the  time  when Matru  was  arrested.   He  was at that  time  posted  as  a constable  at P. S. Shamsabad.  In  examination-in-chief  he said nothing about the appellant’s arrest or the recovery of the  articles) from him.  It was only  in  cross-examination that  he &-posed that he was with P.W. 5 at the time of  the appellant’s  arrest  and  after  arresting  him  the   party returned  to the police station at about 8 or 8.30 p.m.  His version is:-               "Diwanji (presumably referring to P.W. 5)  had               a talk with one person in my presence.   After               that  he asked me to go along with him.  So  I               accompanied  him.  We met- Bankey  witness  in               Kalan Bazar.  I cannot tell whether Bankey has               got  some  shop or not or if he  has  got  it,               where  is  it ? We met Nathu near  the  Maria.               After  arresting  Matroo, we returned  to  the               Police  Station at about 8 or 8.30 O’clock  in               the evening." He has, however, given no details of the articles  recovered nor  about the appellant’s search.  The testimony  of  these witnesses  is far from impressive and the story of  recovery is  difficult  to  accept on its face value.   The  memo  of recovery is Ex.  Ka-1.  It purports to have been prepared at 7.30  p.m.  on  June 1, 1964.  According to  it  on  Matru’s search, a spectacle case containing "a spectacle and a  gold ring  as  per description given below corresponding  to  the case  as offence no. 67 under sections 302/380,  I.P.C.  was recovered  from the right side of the phent of  his  dhoti." The description of the articles recovered, according to this memo, is               1.    One  spectacle  case  of  black  colour,               having dark blue colour inside;               2.    One  spectacle,  having  brown   frame.,               white glasses, not circular, half frame;               3.    One  gold  ring,  longitudinal   deSign,               having green enamel with lengthwise, with  red               and  blue flowery design on the  enamel.   The               ring is somewhat bent. It is signed by Head Constable, Ahibaran Singh and  attested by Bankey, Dilasa and Nathu.  It does not mention the  place where  the search was effected though the memo is stated  to have been prepared in a shop without giving- any particulars

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of the shop.  This memo does not materially add to the  oral testimony of recovery.  This is all the evidence of recovery of the articles.  We 926 do  not  find  it safe on this evidence  to  hold  that  the articles  mentioned  in Ex.  Ka-1 were  recovered  from  the appellant  Possession at the time of his arrest on  June  1, 1964  at 7.30 p.m. Neither P.W. 5, the investigating  H.  C. nor  Nathu, (P.W. 10) can be considered to be  witnesses  on whom   implicit  reliance  can  be  placed  without   proper corroboration  from  a  more  disinterested  and  dependable source.   Having  not  been impressed  by  the  evidence  of recovery, the identification test of the articles can be  of little  help to the prosecution, though even on  that  point the    prosecution   evidence   is   equally    uninspiring. Identification  tests,  it  may  be  pointed  out,  do   not constitute  substantive evidence.  Such tests are  primarily meant  for the purpose of helping the  investigating  agency with an assurance that their progress with the investigation into  the  offence  is  proceeding  on  right  lines.   Now, although  the articles are stated to have been recovered  on June  1,  the  test identification was held  by  Shri  Jwala Prasad  Srivastava,  Magistrate, on October 23,  1964.   The reason for this delay as suggested is that similar  articles had  to  be  procured  for  mixing  up  with  the   articles recovered.    But   the  manner  in   which   this   delayed identification  has  been held in this case  is  highly  un- satisfactory.   Jwala Prasad Srivastava,  Magistrate,  First Class,,  who had conducted the test identification  appeared as P.W. 21, in his examination-in-chief he said:               "Even  before  the  dates  for  identification               proceedings were fixed but the  identification               could   not  be  conducted   because   similar               articles had not been received.  The  articles               were  opened and shown to the contractor  once               so that correct articles could be brought.  On               13-7-64 he  made  an  application  that  the               articles should be shown to him.  The articles               must  have been shown to him within some  days               after that.  The date must have been mentioned               there  but that order sheet is missing.   Even               then I took a precaution that none except  the               Contractor and the court mohair should see the               articles.  Just after showing the articles  to               the  contractor, I got the same sealed in  the               court room in my presence.               In cross-examination he said :               "The  khol (case) Ex. 3 was old.  Out  of  the               khols  which  were  mixed,  one  or  two  were               perhaps   new.    That   too   was    ’Similar               (dissimilar  ?) but the dissimilarity was  not               so much, that I ought to have noted it  (shown               paper No. 49/147 of S.C. File) Yes, this  note               is mine.               ’The case of the spectacle is old one  whereas               the  mixed  cases were new’ (marked  Ex.   Kha               19).   The  counsel for  the  accused  persons               moved an application               627               on  the  same  day  after  the  identification               proceedings.  I had, read it.  The allegations               regarding  the ring, were not correct.   So  I               did  not  note them in my  order.   The  order               sheet  of some particular dates regarding  the               identification  proceedings, were preserved  ?

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             The  same has been found.  The order sheet  of               two  dates has been found.  Out of  them,  one               bears  the  signature of  my  predecessor.   I               recognise the same. (marked Ex.  Kha 21).  The               other  one does not bear the signature of  any               one.  I do not remember exactly who  presented               the  application Ex.  Kha 11.  Perhaps it  was               moved but the contractor’s man.  That man used               to come frequently.  Marginal note on Ex.  Ka-               11  shown.  That encircled in red  pencil  and               (marked  X)  I do not recognise the  same.   I               cannot tell who made this entry and when.   At               present  I  cannot  tell  on  which  date  the               articles were shown.  I did not find any  such               entry in the record which could tell on  which               date   the   articles  were   shown   to   the               contractor.    Only  the  word  "allowed"   is               written with the date 13-7-64.........               articles  before  me.  I do not  remember  his               name.   I can only recognise him by face.   It               is  quite wrong that on 1-9-64 these  articles               were  brought to the court and were  shown  to               the  witnesses.  I do not remember  orally  on               which date these articles were taken out  from               the malkhana.  It is wrong to say that all the               articles which were to be mixed, were               dissimilar.  Only the cases of the  spectacles               were somewhat new. The  statement  of this witness reveals  the  unsatisfactory manner’  of  dealing with the test identification.   We  are unable to place any reliance on these proceedings.  This  takes us to the question of motive.  We have  already noticed that the altercation between the deceased Omwati and the  appellant’s  wife  does not seem  to  have  been  taken seriously  by either party.  The proceedings under  s.  107, Cr.   P. C. to which a reference has been made were  started by Ram Chandra against the appellant after the occurrence in question  and,  therefore,  they are  not  relevant  on  the question  of motive for the present offence of murder.   The appellant’s counsel questioned the admissibility of Ex.  Ka- 4,  the letter said to have been written by the deceased  to her  father, on the ground that it did not fall  within  the purvi ew  of  s.  32, Indian Evidence  Act.   The  objection appears  prima  facie  on plain reading of  the  section  to possess L1100 SUP CI/71 929 merit.   But even if this letter were to be held  admissible we  are  not  satisfied that the motive  which  this  letter suggests  is of strong and impelling nature so as to  induce the  murder  of  Omwati and her infant  child.   The  motive suggested by this letter, coupled with the testimony of P.W. 2  and  P.W. 10, may at best give rise only to  a  suspicion against  the appellant; but suspicion however strong  cannot take the place of roof. The appellant’s conduct in absconding was also relied  upon. Now, mere absconding by itself does not necessarily lead  to a firm conclusion of guilty mind.  Even an innocent man  may feel panicky and try to evade arrest when wrongly  suspected of a grave crime; such is the instinct of self-Preservation. The act of absconding is no doubt relevant piece of evidence to  be  considered along with other evidence but  its  value would  always  depend  on the circumstances  of  each  case. Normally   the  courts  are  disinclined  to   attach   much importance  to the act of absconding, treating it as a  very

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small  item in the evidence for sustaining  conviction.   It can scarcely be held as a determining link in completing the chain  of  circumstantial evidence which must  admit  of  no other  reasonable hypothesis than that of the guilt  of  the ’accused.   In the present case the appellant was  with  Ram Chandra  till the F.I.R. was lodged.  If thereafter he  felt that he was being wrongly suspected and he tried to keep out of  the  way  we  do not  think  this  circumstance  can  be considered  to  be  necessarily evidence of  a  guilty  mind attempting  to evade justice.  It is not  inconsistent  with his innocence. One other circumstance which on the facts of this case  also deserves notice is the non-recovery of the weapon of offence and the fact that no stains of blood were noticed by any one on  the  appellant’s  clothes even though he  was  with  Ram Chandra  right  upto  the  loding of  the  F.I.R.  and  even accompanied him for that purpose.  The courts below seem  to us  to  have  failed  to take  into  consideration  all  the relevant  facts and circumstances of the case.  As proof  of the  appellant’s  guilt depended  solely  on  circumstantial evidence  it was incumbent on the courts below  to  properly consider  and  scrutinise  all  the  material  factors   and circumstances   for   determining  whether  the   chain   of circumstantial  evidence  is so complete as to lead  to  the only conclusion of the appellant’s guilt.  In our view,  the cumulative  effect  of the circumstantial evidence  in  this case  falls  far short of the test required  for  sustaining conviction.   We are, therefore, constrained to  allow  this appeal, set aside the appellant’s conviction and acquit him. V.P.S.              Appeal allowed. 929