Friday, 30 October 2020

Supreme court: Police Presence During Test Identification Makes Statements By Identifiers Fall Within The Ban Of Section 162 CrPC

To establish the presence of Chunthuram at the

place of incident, the Courts relied on the Test

Identification Parade and the testimony of Filim Sai

(PW-3). The Test Identification evidence is not

substantive piece of evidence but can only be used, in

corroboration of statements in Court. The ratio in

Musheer Khan vs. State of Madhya Pradesh 

 (2010) 2 SCC 748 will have a

bearing on this issue where Justice A.K. Ganguly,

writing for the Division Bench succinctly summarised

the legal position as follows:



“24. It may be pointed out that

identification test is not substantive

evidence. Such tests are 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.

10. The infirmities in the conduct of the Test

Identification Parade would next bear scrutiny. The

major flaw in the exercise here was the presence of the

police during the exercise. When the identifications

are held in police presence, the resultant

communications tantamount to statements made by the

identifiers to a police officer in course of

investigation and they fall within the ban of section

162 of the Code. (See Ramkishan Mithanlal Sharma vs.

The State of Bombay) (1955) 1 SCR 903

 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.1392 of 2011

Chunthuram Vs State of Chhattisgarh 

Dated: OCTOBER 29, 2020

Author: Hrishikesh Roy, J.

1. The present Appeal challenges the judgment and

order dated 15.2.2008 of the Chhattisgarh High Court,

whereby the Criminal Appeal No.513/2002 was disposed of

upholding the conviction of the appellant in terms of

the conclusion reached by the learned Additional

Sessions Judge, Jashpurnagar (hereinafter referred to

as, “the trial Court”) in Sessions Case No.149/2001.

The trial Court convicted the appellant and co-accused

Jagan Ram, under Sections 302/34 of the Indian Penal

Code, 1860 (for short “the IPC”) and sentenced them to

undergo life imprisonment and fine of Rs.500/- each and

for the conviction under Sections 201/34 IPC three

years imprisonment and fine of Rs.500/- each was

ordered. The co-accused Jagan Ram was however

acquitted by the High Court.

2. The case of the prosecution is that on 14.6.2001 at

1900 hours when the deceased Laxman was returning from

Tamta market to Pandripani village, the appellant

Chunthuram and the co-accused Jagan Ram assaulted him

with axe and stick, and Laxman died on the spot. The

FIR was lodged by Mahtoram (PW1), the father of the

deceased stating therein that when his son did not

return home from Tamta market at night and enquiries

were made in the village, his grandson Santram informed

him that Chunthuram and Jaganram had killed Laxman and

concealed his dead body in a pit. The informant rushed

to the location and found the injury inflicted dead

body of his son. The FIR mentioned a land dispute

between the accused and the victim as also the fact

that the deceased Laxman was charged with murder of one

Sildhar, the brother of the two co-accused and because

of this animosity, the accused had murdered Laxman.

3. Following the investigation, charges were framed

and the case was committed for trial. The prosecution

examined seven witnesses to prove the charges. The

accused in their Section 313 CrPC statements pleaded

innocence and alleged false implication.

4. On evaluation of the evidence, the trial Court

reached a guilty verdict and sentenced both accused

accordingly.

5. In the resultant criminal appeal, the High Court

referred to the testimony of Bhagat Ram (PW-4) who

admitted that he could not recognize the second person

at the spot and could identify only Chunthuram. On

this testimony of the eyewitness, the co-accused Jagan

Ram was acquitted. The High Court however upheld the

conviction of Chunthuram referring to the testimony of

the eye-witness Bhagat Ram (PW-4) as it was

corroborated by other evidence.


6. We have heard Mr. Yashraj Singh Deora, the learned

Amicus Curiae for the appellant. The learned counsel

has painstakingly taken us through the evidence on

record to firstly point out that recovery of the

weapons of assault from the house of the accused, was

never linked to the crime and therefore the recovered

articles can be of no use for the prosecution. The so

called identification of the lungi by Filim Sai (PW-3),

whose testimony is made the basis of establishing the

presence of Chunthuram at the site of the incident, is

next questioned by Mr. Deora. The credibility of the

sole eye-witness Bhagat Ram (PW-4) with his poor

eyesight (inability to see anything beyond a distance

of two feet) coupled with his weak hearing is

challenged by the learned advocate by highlighting the

fact that the incident occurred on a cloudy evening.

According to the learned counsel the past land dispute

does not provide a direct motive for the murder since

the said dispute was finally resolved more than two

years prior to the incident and the murder of Sildhar

was allegedly related to the said dispute. Explaining

the simple injuries found on the two accused, Mr. Deora

reads Doctor P Sutharu’s (PW-7) evidence who in his

cross-examination admitted that the simple injuries on

Chunthuram could be due to thorny shrubs.

7. In his turn, Mr. Nishanth Patil, the learned

counsel for the State adverts to the land dispute and

the fact that deceased Laxman was tried for murder of

Sildhar, the brother of the accused to argue that the

appellant had the motive for the crime. The State

counsel then refers to the weapons of assault and the

recovery of those from the place pointed out by the

accused. According to Mr Patil, the eye-witness Bhagat

Ram (PW-4), heard the deceased cry out and saw him

being assaulted by Chunthuram and another which

establishes the presence of the accused and this

evidence must be given due weightage. The State

therefore argues that prosecution has discharged its

burden to sustain the conviction through projection of

motive, recovery of the murder weapons and wearing

articles, the testimony of the eye-witness and other

related evidence.

DISCUSSION AND CONCLUSION

8.1 The alleged weapons of assault recovered on the

basis of statement of the accused could be a key

evidence to support the prosecution, but unfortunately,

the recovered articles were never linked to the crime.

The police sent them to the CHC for examination and the

CHC Doctor (PW-7) had stated that the injuries found on

the body could have been caused by those weapons.

However, in his cross-examination, the Doctor admitted

that bloodstains or other marks on the exhibits could

not be seen. The weapons were reportedly sent for

chemical examination and although the trial Court had

referred to the report of chemical analyst to conclude

the presence of blood on the exhibits but the purported

chemical analyst report is not found available with the

case records. Moreover, there is no mention of any

such report in the High Court’s judgment. This would

suggest that the prosecution did not produce any

chemical analyst report in the case.

8.2 The relevant forensic evidence for the seized shirt

(supposedly worn by the co-accused Jagan Ram acquitted

by High Court) was withheld by the prosecution. When

such vital forensic evidence is kept away, an adverse

inference will have to be drawn against the

prosecution.

9. To establish the presence of Chunthuram at the

place of incident, the Courts relied on the Test

Identification Parade and the testimony of Filim Sai

(PW-3). The Test Identification evidence is not

substantive piece of evidence but can only be used, in

corroboration of statements in Court. The ratio in

Musheer Khan vs. State of Madhya Pradesh 

 (2010) 2 SCC 748 will have a

bearing on this issue where Justice A.K. Ganguly,

writing for the Division Bench succinctly summarised

the legal position as follows:



“24. It may be pointed out that

identification test is not substantive

evidence. Such tests are 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.

10. The infirmities in the conduct of the Test

Identification Parade would next bear scrutiny. The

major flaw in the exercise here was the presence of the

police during the exercise. When the identifications

are held in police presence, the resultant

communications tantamount to statements made by the

identifiers to a police officer in course of

investigation and they fall within the ban of section

162 of the Code. (See Ramkishan Mithanlal Sharma vs.

The State of Bombay) (1955) 1 SCR 903

11. The next important flaw is that while the pahchan

patra of the TIP mentions that three lungis were

presented, the related witness was shown only one lungi

for identification as per the own statement of the

witness Filim Sai (PW-3). Such infirmities would

therefore, render the TIP unworthy of acceptance, for

supporting the prosecution.

12. Inconsistencies are also found in the statement of

PW-3 as regards the spot inspection report prepared by

the police and the recovery of the lungi. The PW-3

stated that lungi was found 10-12 steps from the dead

body. However, the spot report noted that the lungi

was found at a distance of 150 feet from the body and

in a plastic bag. In any case, the material exhibit

may have no bearing since Filim Sai (PW-3) admitted

that similar lungi is worn by many farmers in the

village. No distinguishing factor to link the exhibit

to accused Chunthuram is presented except a vague

averment that the appellant was seen wearing lungi on

many occasions. Therefore it would be unsafe in our

view, to link the appellant with the exhibit, relied

upon by the prosecution.

13. The testimony of the eye-witness Bhagat Ram (PW-4)

will now bear scrutiny. His testimony was discarded by

the High Court to acquit the co-accused Jagan Ram. To

reach a different conclusion for the appellant

Chunthuram, the eye-witness’s Testimony was found to

have been corroborated by Taj Khan (PW2). The question

therefore is whether Bhagat Ram (PW-4) can be treated

as a reliable eye-witness of the incident. The witness

Bhagat Ram admitted to having poor eyesight and through

his cross-examination it was elicited that witness is

incapable of seeing things beyond one or two feet. The

witness also admitted that when he left Tamta market,

it was dark and cloudy as it was raining on that day.

Besides he claimed to have heard the deceased cry out

for help while being attacked. The record indicates

that PW4 was at a distance of 200 yards when he heard

the cry. However, Taj Khan (PW-2) who was only around

54 yards away from the place of the incident and was

expected to better hear the victim’s cry, never heard

anything. This would render the testimony of Bhagat

Ram unreliable, particularly because of the poor vision

and hearing capacity of the witness.

14. Next the unnatural conduct of PW4 will require

some scrutiny. The witness Bhagat Ram was known to the

deceased and claimed to have seen the assault on Laxman

by Chunthuram and another person. But curiously, he did

not take any pro-active steps in the matter to either

report to the police or inform any of the family

members. Such conduct of the eyewitness is contrary to

human nature. In Amar Singh v. the State (NCT of

Delhi)3, one of us, Justice Krishna Murari made the

following pertinent comments on the unreliability of

such eye-witness:-

“32. The conviction of the appellants rests on

the oral testimony of PW-1 who was produced as

eye witness of the murder of the deceased. Both

the Learned Sessions Judge, as well as High

Court have placed reliance on the evidence of

PW-1 and ordinarily this Court could be

reluctant to disturb the concurrent view but

since there 17 are inherent improbabilities in

the prosecution story and the conduct of eye

witness is inconsistent with ordinary course of

human nature we do not think it would be safe

to convict the appellants upon the

incorroborated testimony of the sole eye

witness. Similar view has been taken by a Three

Judge Bench of this Court in the case of

Selvaraj V/s The State of Tamil Nadu

 2020 SCC Online SC 826 Wherein

on an appreciation of evidence the prosecution

story was found highly improbable and

inconsistent of ordinary course of human nature

concurrent findings of guilt recorded by the

two Courts below was set aside”


The witness here knew the victim, allegedly saw the

fatal assault on the victim and yet kept quiet about

the incident. If PW4 had the occasion to actually

witness the assault, his reaction and conduct does not

match upto ordinary reaction of a person who knew the

deceased and his family. His testimony therefore

deserves to be discarded.

15. On the motive aspect, the land dispute was finally

decided and it was stated by Mahtoram PW-1 (father of

the deceased) that Sildhar was murdered when the said

land dispute was still pending. If this be the

situation, without any further material to show any

proximate and immediate motive for the crime, it would

be difficult to accept the cited motive, to support the

conviction.

16. We might also reiterate the well established

principle in criminal law which propagates that if two

views are possible on the evidence adduced in a case,

one pointing to the guilt of the accused and the other

to their innocence, the view favourable to the accused

should be adopted.

17. With the above understanding of the law and the related

discussion on the infirmities in the prosecution

evidence, the appellant according to our assessment,

has made out a case for interference. The appeal

therefore is allowed and the judgment of the trial

Court as also of the High Court are consequently set

aside.

……………………………………………J.

[SANJAY KISHAN KAUL]

…………………………………J.

[KRISHNA MURARI]

………………………………………………J.

[HRISHIKESH ROY]

NEW DELHI

OCTOBER 29, 2020


Print Page

No comments:

Post a comment