IMPORTANT POINTS
(1) Test Identification evidence is not substantive piece of evidence but can only be used, in corroboration of statements in Court.
(2) When identifications are held in police presence, resultant communications tantamount to statements made by identifiers to a police officer in course of investigation and they fall within ban of Section 162 of Cr.P.C.
(3) If two views are possible on evidence adduced in a case, one pointing to guilt of accused and other to their innocence, view favourable to accused should be adopted.

JUDGMENT :

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 co-accused 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/- 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 painstakingly 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 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 cross-examination 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