While allowing the appeal, the Supreme Court held that the presence of police officers during test identification makes statements by the identifiers fall within the ban of section 162, CrPC.
On 29th October 2020, A judgement was pronounced by three bench Judge of Justice Sanjay Kishan Kaul along with Justice Krishna Murari and Justice Hrishikesh Roy.
The facts of this case are, the trial Court convicted the appellant and co-accused Jagan Ram, under Sections 302 & 34 of IPC, 1860 and sentenced them to undergo life imprisonment and fine of Rs.500/- each and for the conviction under Sections 201 & 34 IPC, 3 years imprisonment and fine of Rs.500/- each was ordered. However, the co-accused Jagan Ram was acquitted by the High Court.
The learned Amicus Curiae for Appellant Mr. Yashraj Singh Deora has questioned that the so-called identification of the lungi by Filim Sai (PW-3), whose testimony is made the basis of establishing the presence of Chunthuram at the site of the incident. And observed that there is unclear and inappropriate evidence of identification of lungi.
Considering the above contentions, the Apex court relied on the Musheer Khan vs. State of Madhya Pradesh case observing that “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 a substantive piece of evidence but can only be used, in the corroboration of statements in Court. The Test Identification evidence is not a substantive piece of evidence but can only be used, in corroboration of statements in Court.”
Subsequently, 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. And second major 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, render the TIP unworthy of acceptance, for supporting the prosecution.
The bench also observed that the testimony of the eye-witness Bhagat Ram (PW-4) will now bear scrutiny. But the question is whether Bhagat Ram (PW-4) can be treated as a reliable eye-witness of the incident? As such, acquitting the accused the court observed that “the witness Bhagat Ram admitted to having poor eyesight and through his cross-examination, it was elicited that the witness is incapable of seeing things beyond one or two feet.” Later the testimony of Bhagat Ram was deserved to be discarded.
Further the bench of Justice Kaul has 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.
Upon the understanding of the law and the infirmities in the prosecution evidence, the appellant according to the court’s assessment has made out a case for interference. Consequently, the Apex court also set aside the judgment of the trial Court as also of the High Court.
Case Title : Chunthuram vs. State of Chhattisgarh (Criminal Appeal No. 1392 of 2011)
Read Judgement here :