# MATRU alias GIRISH CHANDRA v. STATE OF UTTAR PRADESH

- **Citation:** [1971] 3 S.C.R. 914
- **Court:** Supreme Court of India
- **Decided:** 1971-03-03
- **Case number:** Criminal Appeal No. 165 of 1968
- **Bench:** P. Jaganmohan Reddy, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/matru-alias-girish-chandra-v-state-of-uttar-pradesh-5454
- **Pages:** 15

## Headnote

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 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 -,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 F·Hl
(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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MATRU v. U.P, STATE (Dua, J.)
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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
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( 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 purpo·se of committing murder and
theft in broad day light when persons who knew him were likely to see
him entering the house.
The moveme

## Text

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914
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 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 -,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 F·Hl
(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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MATRU v. U.P, STATE (Dua, J.)
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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
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( 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 purpo·se 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,
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(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.
-- -- ....... ----
916
SUPREME COURT REPORTS
[1971] 3 S.C.R.
A. S. R. Chari, J.P. Goyal and G. S. Chatterjee, for the
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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.
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On the day ef occurrence at about 9 a.m. Ram Chandra left his
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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
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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
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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, app~llant, who was the
next door neighbour came to Ram Chandr~'s hou~e b~fori: the
first information report was lodged and remamed with him !Ill the
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MATRU V. U.P, STATE (Dua, /.)
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 r~e 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
918
SUPREME COURT REPORTS
[ 1971] 3 S.C.R.
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, c~vinced 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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MATRU v. U.P, STATE (Dua, /,)
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 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.
920
SUPREME COURT REPORTS
[1971 )3 S.C.R.
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.
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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
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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
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MATRU v. U.P. STATE (Dua, J.)
921
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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
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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
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court, as also the High Court, both relied on these four pieces
of evidence for convicting the appellant.
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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 lodging- of 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
com-
922
SUPREME COURT REPORTS
[1971) 3 S.C.R.
·panions 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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MATRU v. U.P. STATE (Dua, I.)
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 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
924
SUPREME COURT REPORTS
(1971] 3 S.C.R.
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, w~s 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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MATRU v. U.P, STATE (Dua, J.)
925
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identify the articles as to whether they are the same or
some other. It happened long ago."
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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 ri~ht 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
d·~sign, 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 ar~icles. · We
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SUPREME COURT REPORTS
[1971] 3 $.C.R.
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 ar~les 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
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MATRU v. U.P. STATE (Dua, J.)
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."
927
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
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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
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by the deceased to her father, on the ground that it did not fall
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within the purview of s. 32, Indian Evidence Act. The objection
appears prima facie on plain reading of the section to possess
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SUPREME COURT REPOJl.TS
(1971] 3 S.C.R.
merit. But even if this letter were to be held admissible we are
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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.
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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.