On 29th October 2020 the Supreme Court of India in the case of Chunthuram v. State of Chhattisgarh comprising of a three Bench Judge of Justices SANJAY KISHAN KAUL, KRISHNA MURARI & HRISHIKESH ROY held that Police presence during test identification makes statements by identifiers fall within the ban Of section 162CrPC.
In this case, the accused Chunthuram and co-accused Jagan Ram were convicted in a murder case by the Trial Court. The High Court, referring to the testimony of an eyewitness, acquitted Jagan Ram. The identification of the lungi by Filmin Sai was yet another evidence used against Chunthuram.
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, the bench said.
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 the investigation and they fall within the ban of section 162 of the Code.
The statements of witnesses recorded by police under section 162 Crpc during an investigation cannot be used for seeking corroboration or assurance for the testimony of a witness in court.
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, render the TIP unworthy of acceptance, for supporting the prosecution.
The bench acquitting the accused 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.
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