Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 re- lated 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.]