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)
Chunthuram v. State of Chattuisgarh
Criminal Appeal No.1392 of 2011
29 October, 2020.
Counsel for the Appellants: Mr. Yashraj Singh Deora
Counsel for the State: Mr. Nishanth Patil,
The Hon’ble Supreme Court consisting of Justice Sanjay Kishan Kaul, Justice Krishna Murari and Justice Hrishikesh Roy reiterated in a case 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.
The case of the prosecution is that on 14.6.2001 at 19:00 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 Jagan ram 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.
On evaluation of the evidence, the trial Court reached a guilty verdict and sentenced both accused under section 302/34 IPC and also under section 201/34 IPC. 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.
The learned counsel for the petitioner, among other things, contended (i) that the 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. (ii) He then questioned 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.
Learned counsel for the State (i) adverted 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. (ii) The State counsel then referred to the weapons of assault and the recovery of those from the place pointed out by the accused.
While stating the testimony of PW3, Filim Sai, to be only of corroborative statement and not a substantive evidence, the court referred to its judgments in Musheer Khan v. State of Madhya, (2010) 2 SCC 748; Pradesh Ramkishan Mithanlal Sharma v. The State of Bombay, (1955) 1 SCR 903 and observed the following:
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).
The court then discarded the testimony of PW4 Eyewitness Bagat Ram on the ground that it was inconsistent with the testimony of PW2, who was only 54 yards way but that he could hear the victim cry. Subsequently, the court referred to its judgment in Amar Singh v. The State (NCT of Delhi) 2020 SCC Online SC 826, and noted that the testimony of PW4 was unnatural I the following words:
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……… 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. (Para 14)
Regarding the motive of the accused to commit the crime, the court noted the following:
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. (Para 15)
To conclude, the court held,
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. (Para 16)
Subsequently, the appeal was allowed and the judgment of the High Court was set aside.
View/Download Judgment: Chunthuram v. State of Chattuisgarh
Kalidharun K M
Comments