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
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