[2020] 8 S.C.R. 1071

CHUNTHURAM

STATE OF CHHATTISGARH

(Criminal Appeal No. 1392 of 2011)

OCTOBER 29, 2020

[SANJAY KISHAN KAUL, KRISHNA MURARI AND

HRISHIKESH ROY, JJ.]

Penal Code, 1860 - ss. 302/34 - Murder - The prosecution case is that when the victim-deceased was returning from market to village, the appellant and the co-accused assaulted him with axe and stick, and the victim died on the spot - The trial Court reached a guilty verdict and sentenced both accused accordingly - However, the High Court referred to the testimony of PW-4 who admitted that he could not recognize the second person at the spot and could identify only the appellant, based on this, the co-accused was acquitted - On appeal, held: The alleged weapons of assault recovered were never linked to the crime - The doctor in his crossexamination admitted that bloodstains or other marks on the exhibits could not be seen - The weapons were sent for chemical examination and the trial Court 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 and there is no mention of such report in the High Court judgment as well - Thus, the prosecution did not produce any chemical analyst report - Other relevant forensic evidence like seized shirt of the coaccused was withheld by the prosecution - When such vital forensic evidence is kept away, an adverse inference will have to be drawn against the prosecution - Another infirmity was the presence of the police during the Test Identification Parade - Also, the Pahchan patra of TIP mentions three lungis were presented, however, the related witness was shown only one lungi for identification as per own statement of witness, PW-3 - Such infirmities would render TIP unworthy of acceptance - Further, there were inconsistencies in the statement of PW-3, he stated that lungi was found 10-12 steps from the dead body, however, the spot report noted that lungi was found at a distance of 150 feet from the body - As far as PW-4 is

SUPREME COURT REPORTS


concerned, he admitted to having poor eye sight and was incapable of seeing things beyond one or two feet - He also admitted that it was dark and cloudy as it was raining on that day - Besides, he heard victim cry for help from 200 yards and whereas PW-2 who was 54 yards away from the place of incident, never heard anything - This would render testimony of PW-4 unreliable - This was coupled with the unnatural conduct of PW-4, as witness here knew the victim and his family - PW-4 allegedly saw the incident and yet remained quiet about the incident - His reaction and conduct does not match upto ordinary reaction of a person who knew the deceased and his family - Therefore, the infirmities in the prosecution evidence has made out a case for interference - Consequently, the judgments of the trial Court and the High Court are set aside.

Allowing the appeal, the Court

HELD: 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 doctor in his crossexamination, 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. [Para 8.1][1076-F-H; 1077- A]

2. The relevant forensic evidence for the seized shirt (supposedly worn by the co-accused 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. [Para 8.2][1077-A-B]

3. 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. [Para 10][1077-E]

4. 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, PW-3. Such infirmities would therefore, render the TIP unworthy of acceptance, for supporting the prosecution. [Para 11][1077-F]

5. 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 PW-3 admitted that similar lungi is worn by many farmers in the village. Therefore it would be unsafe in view of this Court, to link the appellant with the exhibit, relied upon by the prosecution. [Para 12][1077-G; 1077-A-B]

6. Now, the question is whether PW-4 can be treated as a reliable eye-witness of the incident. The witness PW-4 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 PW-4 was at a distance of 200 yards when he heard the cry. However, 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 PW-4 unreliable, particularly because of the poor vision and hearing capacity of the witness. [Para 13][1078-C-E]

7. Next the unnatural conduct of PW-4 will require some scrutiny. The witness here knew the victim, allegedly saw the fatal assault on the victim and yet kept quiet about the incident.

CHUNTHURAM v. STATE OF CHHATTISGARH


If PW-4 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. [Para 14][1078-F; 1079-C- D]

Musheer Khan v. State of Madhya Pradesh (2010) 2 SCC 748 : [2010] 2 SCR 119; Amar Singh v. The State (NCT of Delhi) (2020) SCC Online SC 826 - relied on.

Ramkishan Mithanlal Sharma v. The State of Bombay [1955] 1 SCR 903 - referred to.

Case Law Reference

[2010] 2 SCR 119 relied on Para 9

[1955] 1 SCR 903 referred to Para 10

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1392 of 2011.

From the Judgment and Order dated 15.02.2008 of the High Court of Chhatisgarh at Bilaspur, in Criminal Appeal No. 513 of 2002.

Yashraj Singh Deora, Ms. Sonal Mashankar, Ms. Shivangi Sud, Mr. Nishanth Patil, Advs. for the appearing parties.

The Judgment of the Court was delivered by

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 coaccused 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 pains takingly 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

CHUNTHURAM v. STATE OF CHHATTISGARH

[HRISHIKESH ROY, J.]


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 crossexamination 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 crossexamination, 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 Pradesh1 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 tant amount 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)2

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, ender 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

1 (2010) 2 SCC 748

2 (1955) 1 SCR 903

CHUNTHURAM v. STATE OF CHHATTISGARH

[HRISHIKESH ROY, J.]


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, he 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

3 2020 SCC Online SC 826

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.

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 aproximate 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.

Ankit Gyan Appeal allowed.

CHUNTHURAM v. STATE OF CHHATTISGARH

[HRISHIKESH ROY, J.]