# CHUNTHURAM v. STATE OF CHHATTISGARH

- **Citation:** [2020] 8 S.C.R. 1071
- **Court:** Supreme Court of India
- **Decided:** 2020-10-29
- **Case number:** Criminal Appeal No. 1392 of 2011
- **Bench:** Sanjay Kishan Kaul, Krishna Murari, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chunthuram-v-state-of-chhattisgarh-34842
- **Pages:** 9

## Headnote

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
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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; 1077A]
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
Para

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[2020] 8 S.C.R. 1071
CHUNTHURAM
v.
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
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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; 1077A]
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
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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
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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-CD]
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/-
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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.]
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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
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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.]
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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
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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.]