CHUNTHURAMversusSTATE OF CHHATTISGARH

                        [2020] 8 S.C.R. 1071                             1071


                         CHUNTHURAM                                      A
                                  v.
                   STATE OF CHHATTISGARH
                 (Criminal Appeal No. 1392 of 2011)
                        OCTOBER 29, 2020                                 B
    [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
                                                                         C
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           D
acquitted – On appeal, held: The alleged weapons of assault
recovered were never linked to the crime – The doctor in his cross-
examination 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
                                                                         E
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 co-
accused was withheld by the prosecution – When such vital forensic       F
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
                                                                         G
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
                                                                         H
                                1071
1072           SUPREME COURT REPORTS                      [2020] 8 S.C.R.


 A     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
 B
       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
 C     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
 D     support the prosecution, but unfortunately, the recovered articles
       were never linked to the crime. The doctor in his cross-
       examination, 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
 E     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-
 F     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
 G     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
 H
        CHUNTHURAM v. STATE OF CHHATTISGARH                           1073


communications tantamount to statements made by the identifiers       A
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        B
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      C
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       D
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      E
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         F
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]                                      G
       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.

                                                                      H
1074            SUPREME COURT REPORTS                         [2020] 8 S.C.R.


 A     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]
 B           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
 C           [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
 D           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,
 E     Mr. Nishanth Patil, Advs. for the appearing parties.
             The Judgment of the Court was delivered by
             HRISHIKESH ROY, J.
             1. The pr esent Appeal challenges the j udgment and
 F     order dated 15.2.2008 of the Chhattisgar h 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
 G     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/-

 H
        CHUNTHURAM v. STATE OF CHHATTISGARH                              1075
                [HRISHIKESH ROY, J.]

each was ordered. The co-accused Jagan Ram was however acquitted         A
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        B
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 fr om Tamta market at night and enquir ies
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        C
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.                                             D
      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       E
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          F
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           G
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
                                                                         H
1076            SUPREME COURT REPORTS                          [2020] 8 S.C.R.


 A     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
 B
       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
 C     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
 D     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
 E     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.
 F                     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
 G     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
 H     report of chemical analyst to conclude the presence of blood on the
            CHUNTHURAM v. STATE OF CHHATTISGARH                                   1077
                    [HRISHIKESH ROY, J.]

exhibits but the purported chemical analyst report is not found available         A
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                     B
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          C
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:
                                                                                  D
         “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       E
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                              F
       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.                   G
      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                                                              H
1078               SUPREME COURT REPORTS                         [2020] 8 S.C.R.


 A     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
 B
       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
 C     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
 D     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.
 E     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.
 F            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
 G     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
 H         2020 SCC Online SC 826
         CHUNTHURAM v. STATE OF CHHATTISGARH                                     1079
                 [HRISHIKESH ROY, J.]

       of PW-1 who was produced as eye witness of the murder of the              A
       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
                                                                                 B
       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           C
       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          D
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            E
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              F
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 re-
lated discussion on the infirmities in the prosecution evidence, the appellant
according to our assessment, has made out a case for interference.               G
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.
                                                                                 H