CHUNTHURAM versus STATE OF CHHATTISGARH

[2020] 8 S.C.R. 1071

CHUNTHURAM

STATE OF CHHATTISGARH

(Criminal Appeal No. 1392 of 2011)

OCTOBER 29, 2020

[SANJAY KISHAN KAUL, KRISHNA MURARI ANDHRISHIKESH ROY, JJ.]

Penal Code, 1860 – ss. 302/34 – Murder – The prosecutioncase is that when the victim-deceased was returning from market tovillage, the appellant and the co-accused assaulted him with axeand stick, and the victim died on the spot – The trial Court reacheda guilty verdict and sentenced both accused accordingly – However,the High Court referred to the testimony of PW-4 who admitted thathe could not recognize the second person at the spot and couldidentify only the appellant, based on this, the co-accused wasacquitted – On appeal, held: The alleged weapons of assaultrecovered were never linked to the crime – The doctor in his cross-examination admitted that bloodstains or other marks on the exhibitscould not be seen – The weapons were sent for chemical examinationand the trial Court referred to the report of chemical analyst toconclude the presence of blood on the exhibits but the purportedchemical analyst report is not found available with the case recordsand there is no mention of such report in the High Court judgmentas well – Thus, the prosecution did not produce any chemical analystreport – Other relevant forensic evidence like seized shirt of the co-accused was withheld by the prosecution – When such vital forensicevidence is kept away, an adverse inference will have to be drawnagainst the prosecution – Another infirmity was the presence of thepolice during the Test Identification Parade – Also, the Pahchanpatra of TIP mentions three lungis were presented, however, therelated witness was shown only one lungi for identification as perown statement of witness, PW-3 – Such infirmities would render TIPunworthy of acceptance – Further, there were inconsistencies inthe statement of PW-3, he stated that lungi was found 10-12 stepsfrom the dead body, however, the spot report noted that lungi wasfound at distance of 150 feet from the body – As far as PW-4 is

Aconcerned, he admitted to having poor eye sight and was incapableof seeing things beyond one or two feet – He also admitted that itwas dark and cloudy as it was raining on that day – Besides, heheard victim cry for help from 200 yards and whereas PW-2 whowas 54 yards away from the place of incident, never heard anything– This would render testimony of PW-4 unreliable – This was coupledBwith the unnatural conduct of PW-4, as witness here knew the victimand his family – PW-4 allegedly saw the incident and yet remainedquiet about the incident – His reaction and conduct does not matchupto ordinary reaction of person who knew the deceased and hisfamily – Therefore, the infirmities in the prosecution evidence hasCmade out case for interference – Consequently, the judgments ofthe trial Court and the High Court are set aside.

Allowing the appeal, the Court

HELD: 1. The alleged weapons of assault recovered onthe basis of statement of the accused could be key evidence toDsupport the prosecution, but unfortunately, the recovered articleswere never linked to the crime. The doctor in his cross-examination, admitted that bloodstains or other marks on theexhibits could not be seen. The weapons were reportedly sentfor chemical examination and although the trial Court had referredEto the report of chemical analyst to conclude the presence ofblood on the exhibits but the purported chemical analyst reportis not found available with the case records. Moreover, there isno mention of any such report in the High Court’s judgment.This would suggest that the prosecution did not produce anychemical analyst report in the case. [Para 8.1][1076-F-H; 1077-FA]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 forensicevidence is kept away, an adverse inference will have to be drawnGagainst the prosecution. [Para 8.2][1077-A-B]

3. The infirmities in the conduct of the Test IdentificationParade would next bear scrutiny. The major flaw in the exercisehere was the presence of the police during the exercise. Whenthe identifications are held in police presence, the resultantH

communications tantamount to statements made by the identifiersto police officer in course of investigation and they fall withinthe ban of section 162 of the Code. [Para 10][1077-E]

4. The next important flaw is that while the pahchan patraof the TIP mentions that three lungis were presented, the relatedwitness was shown only one lungi for identification as per theown statement of the witness, PW-3. Such infirmities wouldtherefore, render the TIP unworthy of acceptance, for supportingthe prosecution. [Para 11][1077-F]

5. Inconsistencies are also found in the statement of PW-3as regards the spot inspection report prepared by the police andthe recovery of the lungi. The PW-3 stated that lungi was found10-12 steps from the dead body. However, the spot report notedthat the lungi was found at distance of 150 feet from the bodyand in plastic bag. In any case, the material exhibit may have nobearing since PW-3 admitted that similar lungi is worn by manyfarmers in the village. Therefore it would be unsafe in view ofthis Court, to link the appellant with the exhibit, relied upon bythe prosecution. [Para 12][1077-G; 1077-A-B]

6. Now, the question is whether PW-4 can be treated as areliable eye-witness of the incident. The witness PW-4 admittedto having poor eyesight and through his cross-examination it waselicited that witness is incapable of seeing things beyond one ortwo feet. The witness also admitted that when he left Tamtamarket, it was dark and cloudy as it was raining on that day.Besides he claimed to have heard the deceased cry out for helpwhile being attacked. The record indicates that PW-4 was at adistance of 200 yards when he heard the cry. However, PW-2who was only around 54 yards away from the place of the incidentand was expected to better hear the victim’s cry, never heardanything. This would render the testimony of PW-4 unreliable,particularly because of the poor vision and hearing capacity ofthe witness. [Para 13][1078-C-E]

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

AIf PW-4 had the occasion to actually witness the assault, hisreaction and conduct does not match upto ordinary reaction of aperson who knew the deceased and his family. His testimonytherefore deserves to be discarded. [Para 14][1078-F; 1079-C-D]

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

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

Case Law Reference

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

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

Yashraj Singh Deora, Ms. Sonal Mashankar, Ms. Shivangi Sud,EMr. 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 andForder dated 15.2.2008 of the Chhattisgarh High Court,whereby the Criminal Appeal No.513/2002 was disposed ofupholding the conviction of the appellant in terms ofthe conclusion reached by the learned Additional Sessions Judge,Jashpurnagar (hereinafter referred to as, “the trial Court”) in SessionsGCase 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 lifeimprisonment and fine of Rs.500/- each and for the conviction underSections 201/34 IPC three years imprisonment and fine of Rs.500/-

each was ordered. The co-accused Jagan Ram was however acquittedby the High Court.

2. The case of the prosecution is that on 14.6.2001 at1900 hours when the deceased Laxman was returning from Tamtamarket to Pandripani village, the appellant Chunthuram and theco-accused Jagan Ram assaulted him with axe and stick, and Laxmandied on the spot. The FIR was lodged by Mahtoram (PW1), the fatherof the deceased stating therein that when his son did notreturn home from Tamta market at night and enquirieswere made in the village, his grandson Santram informed him thatChunthuram and Jaganram had killed Laxman and concealed his deadbody in pit. The informant rushed to the location and found theinjury inflicted dead body of his son. The FIR mentioned landdispute between the accused and the victim as also the fact that thedeceased Laxman was charged with murder of one Sildhar, thebrother of the two co-accused and because of this animosity, theaccused had murdered Laxman.

3. Following the investigation, charges were framed and thecase was committed for trial. The prosecution examined sevenwitnesses to prove the charges. The accused in their Section 313CrPC statements pleaded innocence and alleged false implication.

4. On evaluation of the evidence, the trial Court reached aguilty verdict and sentenced both accused accordingly.

5. In the resultant criminal appeal, the High Court referredto the testimony of Bhagat Ram (PW-4) who admitted that he couldnot recognize the second person at the spot and could identify onlyChunthuram. On this testimony of the eyewitness, the co-accusedJagan Ram was acquitted. The High Court however upheld theconviction of Chunthuram referring to the testimony of the eye-witnessBhagat Ram (PW-4) as it was corroborated by other evidence.

6. We have heard Mr. Yashraj Singh Deora, the learnedAmicus Curiae for the appellant. The learned counsel has painstakingly taken us through the evidence on record to firstly point outthat recovery of the weapons of assault from the house of theaccused, was never linked to the crime and therefore the recoveredarticles can be of no use for the prosecution. The so calledidentification of the lungi by Filim Sai (PW-3), whose testimony

Ais made the basis of establishing the presence of Chunthuram atthe site of the incident, is next questioned by Mr. Deora. Thecredibility of the sole eye-witness Bhagat Ram (PW-4) with hispoor eyesight (inability to see anything beyond distance of twofeet) coupled with his weak hearing is challenged by the learnedadvocate by highlighting the fact that the incident occurred on aBcloudy evening. According to the learned counsel the past land disputedoes not provide direct motive for the murder since the said disputewas finally resolved more than two years prior to the incident andthe murder of Sildhar was allegedly related to the said dispute.Explaining the simple injuries found on the two accused, Mr. DeoraCreads Doctor P Sutharu’s (PW-7) evidence who in his cross-examination admitted that the simple injuries on Chunthuram couldbe due to thorny shrubs.

7. In his turn, Mr. Nishanth Patil, the learned counsel for theState adverts to the land dispute and the fact that deceased LaxmanDwas tried for murder of Sildhar, the brother of the accused to argue thatthe appellant had the motive for the crime. The State counsel then refersto the weapons of assault and the recovery of those from the placepointed out by the accused. According to Mr Patil, the eye-witness BhagatRam (PW-4), heard the deceased cry out and saw him being assaultedby Chunthuram and another which establishes the presence of theEaccused and this evidence must be given due weightage. The Statetherefore argues that prosecution has discharged its burden to sustainthe conviction through projection of motive, recovery of the murderweapons and wearing articles, the testimony of the eye-witness andother related evidence.FDISCUSSION AND CONCLUSION

8.1 The alleged weapons of assault recovered on the basis ofstatement of the accused could be key evidence to support theprosecution, but unfortunately, the recovered articles were never linkedto the crime. The police sent them to the CHC for examination and theGCHC Doctor (PW-7) had stated that the injuries found on the bodycould have been caused by those weapons. However, in his cross-examination, the Doctor admitted that bloodstains or other marks onthe exhibits could not be seen. The weapons were reportedly sent forchemical examination and although the trial Court had referred to theHreport of chemical analyst to conclude the presence of blood on the

exhibits but the purported chemical analyst report is not found availablewith the case records. Moreover, there is no mention of anysuch report in the High Court’s judgment. This would suggest that theprosecution did not produce any chemical analyst report in the case.

8.2 The relevant forensic evidence for the seized shirt (supposedlyworn by the co-accused Jagan Ram acquitted by High Court) waswithheld by the prosecution. When such vital forensic evidence is keptaway, an adverse inference will have to be drawn against theprosecution.

9. To establish the presence of Chunthuram at the place of incident,the Courts relied on the Test Identification Parade and the testimony ofFilim Sai (PW-3). The Test Identification evidence is not substantivepiece of evidence but can only be used, in corroboration of statements inCourt. The ratio in Musheer Khan vs. State of Madhya Pradesh[1]willhave bearing on this issue where Justice A.K. Ganguly, writing for theDivision Bench succinctly summarised the legal position as follows:

“24. It may be pointed out that identification test is not substantiveevidence. Such tests are meant for the purpose of helping theinvestigating agency with an assurance that their progress withthe investigation into the offence is proceeding on right lines.

10. The infirmities in the conduct of the Test Identification Paradewould next bear scrutiny.The major flaw in the exercise here was thepresence of the police during the exercise. When the identifications areheld in police presence, the resultant communications tant amount tostatements made by the identifiers to police officer in course ofinvestigation and they fall within the ban of section 162 of the Code. SeeRamkishan Mithanlal Sharma vs. The State of Bombay)[2]

11. The next important flaw is that while the pahchan patra ofthe TIP mentions that three lungis were presented, the related witnesswas shown only one lungi for identification as per the own statementof the witness Filim Sai (PW-3). Such infirmities would therefore, enderthe TIP unworthy of acceptance, for supporting the prosecution.

12. Inconsistencies are also found in the statement of PW-3 asregards the spot inspection report prepared by the police and the recovery

1 (2010) 2 SCC 748

2 (1955) 1 SCR 903

Aof the lungi. The PW-3 stated that lungi was found 10-12 steps from thedead body. However, the spot report noted that the lungi was found at adistance of 150 feet from the body and in plastic bag. In any case, hematerial exhibit may have no bearing since Filim Sai (PW-3) admittedthat similar lungi is worn by many farmers in the village. No distinguishingfactor to link the exhibit to accused Chunthuram is presented except aBvague averment that the appellant was seen wearing lungi on manyoccasions. Therefore it would be unsafe in our view, to link the appellantwith the exhibit, relied upon by the prosecution.13. The testimony of the eye-witness Bhagat Ram (PW-4) willnow bear scrutiny. His testimony was discarded by the High Court toCacquit the co-accused Jagan Ram. To reach different conclusion forthe appellant Chunthuram, the eye-witness’s Testimony was found tohave been corroborated by Taj Khan (PW2). The question therefore iswhether Bhagat Ram (PW-4) can be treated as reliable eye-witnessof the incident. The witness Bhagat Ram admitted to having poor eyesightDand through his cross-examination it was elicited that witness isincapable of seeing things beyond one or two feet. The witness alsoadmitted that when he left Tamta market, it was dark and cloudy as itwas raining on that day. Besides he claimed to have heard the deceasedcry out for help while being attacked. The record indicatesthat PW4 was at distance of 200 yards when he heard the cry.EHowever, Taj Khan (PW-2) who was only around 54 yards away fromthe place of the incident and was expected to better hear the victim’scry, never heard anything. This would render the testimony of BhagatRam unreliable, particularly because of the poor vision and hearingcapacity of the witness.F14. Next the unnatural conduct of PW4 will require some scrutiny.The witness Bhagat Ram was known to the deceased and claimed tohave seen the assault on Laxman by Chunthuram and another person.But curiously, he did not take any pro-active steps in the matter to eitherreport to the police or inform any of the family members. Such conductGof the eyewitness is contrary to human nature. In Amar Singh v. theState (NCT of Delhi)[3], one of us, Justice Krishna Murari made thefollowing 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 thedeceased. Both the Learned Sessions Judge, as well as High Courthave placed reliance on the evidence of PW-1 and ordinarily thisCourt could be reluctant to disturb the concurrent view but sincethere 17 are inherent improbabilities in the prosecution story andthe conduct of eye witness is inconsistent with ordinary course ofhuman nature we do not think it would be safe to convict theappellants upon the incorroborated testimony of the sole eyewitness. Similar view has been taken by Three Judge Bench ofthis Court in the case of Selvaraj V/s The State of Tamil Nadu.Wherein on an appreciation of evidence the prosecution storywas found highly improbable and inconsistent of ordinary courseof human nature concurrent findings of guilt recorded by the twoCourts below was set aside”

The witness here knew the victim, allegedly saw the fatal assaulton the victim and yet kept quiet about the incident. If PW4 had theoccasion to actually witness the assault, his reaction and conduct doesnot match upto ordinary reaction of person who knew the deceasedand his family. His testimony therefore deserves to be discarded.

15. On the motive aspect, the land dispute was finally decidedand it was stated by Mahtoram PW-1 (father of the deceased) thatSildhar was murdered when the said land dispute was still pending. Ifthis be the situation, without any further material to show anyaproximate and immediate motive for the crime, it would be difficult toaccept the cited motive, to support the conviction.

16. We might also reiterate the well established principle in criminallaw which propagates that if two views are possible on the evidenceadduced in case, one pointing to the guilt of the accused and the otherto 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 appellantaccording to our assessment, has made out case for interference.The appeal therefore is allowed and the judgment of the trialCourt as also of the High Court are consequently set aside.

Ankit Gyan

Appeal allowed.