1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1 OF 2005 Ranjyotsingh Gurudayalsingh Aged about 27 years, residing at Chitti, Taluka and District Jalandhar, State of Punjab, At present on undergoing the sentence imposed upon him at Nashik Road Central Prison, Nashik. ...Appellant. Versus The State of Maharashtra, (at the instance of Senior Inspector of Police, Vakola Police Station vide their C.R. No.70/2001). ...Respondent. ....... Mr.Nitin Sejpal with Ms. Pooja Bhojne for the Appellant. Mrs.U. V. Kejriwal, APP for the Respondent. ...... CORAM : SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD, J. October 6, 2008. JUDGMENT (Per Dr. D.Y. Chandrachud, J.) : 2 The Appellant and his co-accused, Dharmendra Ratansingh Walmiki were convicted on 4th October 2004 by the Additional Sessions Judge, Mumbai of offences under Section 302 read with Section 34 of the Penal Code. They have been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default, to suffer further rigorous imprisonment for a period of one year. The Appellant before the Court, Ranjyotsingh Gurudayal Singh, was arraigned as Accused No.1. 2. The deceased, Kuljinder Singh, resided at Jama in the district of Hoshiarpur in Punjab. Kuljinder Singh was found dead in Room 303 at Hotel Yatree at Santacruz (East), Mumbai, on 15th February 2001. The body of the deceased bore as many as eighteen incised wounds on vital parts.. The case of the prosecution is that between fifteen to twenty days prior to the incident, the Appellant visited the residence of Dharamsingh Keharsingh Sandhu (PW 8) who was the father of the deceased together with another person by the name of Harpalsingh and informed him that they were arranging 3 to send Kuljinder to England. Kuljinder at the material time was a student of the B.A. Degree Course. According to the prosecution, the father of the deceased was informed that the Appellant was an agent who was engaged in making arrangements for sending Indians abroad. The Appellant thereafter visited the house of the deceased frequently and is alleged to have demanded money, stating that the work of obtaining a passport for Kuljinder was in progress. PW 8, the father of Kuljinder, is alleged to have parted with a sum of Rs.3,42,000/- to the Appellant on 11th February 2001. The Appellant is alleged to have informed him that the balance would be recovered after PW 8 received a telephonic communication from Kuljinder of his arrival in the U.K. 3. It has been alleged that on 12th February 2001, the Appellant together with the Second Accused came to the residence of PW 8 and enquired as to whether Kuljinder was ready for departing. PW 8 accompanied his son, the Appellant and the other accused to Delhi by bus. The party is alleged to have reached Delhi at 5 p.m. and 4 to have proceeded thereafter to the international airport. The Appellant is alleged to have informed PW 8 that there were other persons in the batch who were to proceed abroad and that the entire batch would be departing from Mumbai at 4 a.m. on 15th February 2001. PW 8 thereupon returned to his village with the assurance of the Appellant that he would be informed after Kuljinder had departed from Mumbai. On 13th February 2001, PW 8 received a telephone call at 8 p.m. from his son informing him that he would depart from Mumbai on 15th February 2001. PW 8 is alleged to have received a call on 17th February 2001 informing him that Kuljinder had reached England and that the balance of the amount should be paid over to the Appellant. A few hours thereafter, the Appellant made a telephone call to PW 8 informing him that Kuljinder had reached England and that his relatives should be called upon to find a suitable job for him. PW 8 was informed that Kuljinder had made a telephone call from a Gurudwara in Birmingham. According to the case of the prosecution, PW 8 received a telephone call from a person who claimed to be his son. The voice was, however, not that of Kuljinder. 5 The Appellant was informed by PW 8 that he would not part with the remaining amount until he received a telephone call from his own son. 4. On 23rd February 2001, the Appellant is alleged to have visited the residence of PW 8 for demanding the remaining amount which PW 8 declined to pay on the ground that he had received no intimation from his son of having reached the U.K. On the same day, the Police attached to the Crime Branch at Mumbai visited the residence of PW 8 and showed him a photograph of Kuljinder which PW 8 identified. PW 8 identified the dead body in the photograph as the body of his son and led the Police party to the house of the Appellant, who had absconded. 5. The body of the deceased was recovered on 15th February 2001 from Room 303 of Hotel Yatree at Santacruz. The room was opened after a complaint was lodged with the Police by Mohnish Patil, PW 1, a Receptionist on duty at the Hotel. The First Information Report was lodged by PW 1 at 1330 hours on 15th February 2001. 6 The time of the occurrence was alleged to be between 9.30 p.m. on 14th February 2001 and 5.30 a.m. on 15th February 2001. The Appellant and the co-accused had allegedly used assumed names while checking in at the hotel; the names reflected in the Register were Ravi Malhotra and Bhupinder Singh with a fictitious addresses of a place at Sirsa in Haryana. The Appellant was arrested on 23rd March 2001. The co-accused was arrested on 5th April 2001. The accused were committed to trial. The defence was one of total denial. 6. The prosecution examined twelve witnesses. Chief amongst the witnesses were PW 1 Mohnish Patil, PW 2 John Nadar and PW 4 Pradeep Gupta, all of whom were working as receptionists at the hotel. PW 8 Dharamsingh was the father of the deceased, PW 9 Dr.Kalyankar conducted the post mortem. PW 11 Barun Biswas was a waiter at the hotel. PW 12 Vijay Dalvi was the Investigating Officer. By his judgment dated 4th October 2004, the Additional Sessions Judge, convicted both the accused of offences punishable under Section 302 read with Section 34 of the Penal Code and 7 sentenced them to life imprisonment, in terms already noted above. 7. On behalf of the Appellant it has been submitted that: (i) In the present case, which is based on circumstantial evidence, the circumstance that the Appellant was last seen together with the deceased at the international airport at Delhi on 12th February 2001, is not sufficient to bring home the charge of murder because over sixty hours had elapsed thereafter until the body was found at Mumbai on 15th February 2001. It has been urged that the prosecution has not been able to establish as to what transpired in the interregnum; (ii) The identification of the Appellant by the prosecution witnesses in the Court loses significance, regard being had to the circumstance that one photograph of the Appellant was picked up by the investigating team from his residence in Punjab and was shown to the prosecution witnesses. and (iii) The prosecution had not obtained the opinion of a handwriting expert in respect of the entries in the hotel register when the Appellant and the co-accused are alleged to have checked in on 13th February 2001. 8 8. On the other hand, it has been urged on behalf of the State by the Learned APP that (i) PW 8 Dharamsingh who is the father of the deceased is a truthful witness and his testimony is worthy of credence. PW 8 had given an elaborate account of the events which had transpired between the first meeting of the Appellant and PW 8 where the Appellant had offered to arrange to send the deceased to the U.K., until 12th February 2001 when PW 8 last saw the deceased at the airport with the Appellant; (ii) There is nothing intrinsically unfair or improper about the investigating agency showing a photograph of the accused during the course of investigation. Such a course of action, the Supreme Court has held, is only for ensuring that the investigation is proceeding in the correct direction; would lend support to the identification in Court and take the place of an identification parade; (iii) Coupled with the circumstance that the Appellant was last seen together with the deceased at Delhi international airport on 12th February 2001 is the circumstance that the Appellant has totally failed to explain facts which were within his special knowledge within the 9 meaning of Section 106 of the Evidence Act. The Appellant failed to explain when, if at all, he had parted company with the deceased. The defence of total denial in the statement under Section 313 of the Code of Criminal Procedure, 1973, is positively false and there is no reason to discredit the testimony of PW 8 who was the father of the deceased; (iv) The Appellant has been clearly identified by PW 1, PW 2, PW 4 and PW 11, all of whom were employees at the hotel. The evidence of all these witnesses is cogent and trustworthy. 9. The case of the prosecution rests on circumstantial evidence. The five golden principles with reference to which the case of the prosecution must be assessed have been enunciated in the judgment of the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra ,1 thus: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. ... (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis 1 (1984) 4 SCC (Cri) 116 10 except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 10. While assessing the merits of the rival contentions, it would be necessary at the outset to consider the evidence of Dharamsingh Sandhu (PW 8) who was the father of the deceased. Dharamsingh was 55 years of age and resided at post Jama in the taluka of Dasuga in the district of Hoshiarpur in Punjab. Kuljinder, the deceased, was his only son. PW 8 deposed that about fifteen to twenty days prior to the incident, the Appellant had visited his residence together with Harpal Singh with an offer that he would arrange to send Kuljinder to the U.K. PW 8 stated that the Appellant had represented to him that he was an agent who made arrangements to send Indian citizens 11 abroad. Several meetings took place during which the Appellant assured PW 8 that the work of obtaining a passport for Kuljinder was in progress. According to PW 8, on 11th February 2001, the Appellant came to his residence when an amount of Rs. 3.42 lakhs was paid over to the Appellant. The Appellant stated that the balance should be paid after PW 8 received a phone call from Kuljinder that he had reached the U.K. On 12th February 2001, the Appellant and the co- accused visited the residence of PW 8 and enquired whether Kuljinder was ready to depart. Though an attempt was made to dissuade PW 8 from accompanying him, the Appellant, Kuljinder, PW 8 and the co-accused departed for Delhi by bus and arrived at 5 p.m. They then proceeded to the international airport where they arrived at 7 p.m. The Appellant informed PW 8 that his partner had already gone to Mumbai since the other persons would depart from Mumbai. The Appellant informed PW 8 that Kuljinder would leave Mumbai by a flight departing at 4 a.m. on 15th February 2001. PW 8 deposed that he returned back to his village in Punjab where his wife and daughter resided; the Appellant having informed him that he would be informed 12 of the departure of Kuljinder from Mumbai. On 13th February 2001 after PW 8 reached his village, there was a call from Kuljinder between 8 and 8.30 p.m. informing him that he would be departing from Mumbai on 15th February 2001. On 17th February 2001, PW 8 received a call from a person claiming to be Kuljinder speaking from the U.K. and purporting to inform the father that he had reached his destination. Shortly thereafter, there was a phone from the Appellant to PW 8 informing him that Kuljinder had reached England; asking PW 8 to request his relatives in the U.K. to find him a suitable job and informing him that Kuljinder had spoken on the telephone from a Gurudwara in Birmingham. Two days thereafter, the Appellant made a phone call to PW 8. PW 8 informed the Appellant that the person who had spoken to him on the telephone was not Kuljinder to which the Appellant responded by stating that his voice had changed 'due to a change in the climate in the U.K.' On 23rd February 2001, PW 8 was visited by the Appellant with a demand for money when he was informed that no money would be paid unless a confirmation was received from Kuljinder of his having reached the U.K. Later on the 13 same day, the Police from the Crime Branch of Mumbai came to the residence of PW 8 with a photograph of a dead body which PW 8 identified as the body of his son, Kuljinder. 11. PW 8 was cross-examined at length. PW 8 is a witness of truth. A large part of the cross-examination of PW 8 has been devoted to confronting him with alleged omissions from his statement under Section 164, of the details that were deposed to by him in the course of his evidence. Chief amongst the omissions upon which reliance has been placed is the omission in the statement under Section 164 of a reference to the payment of an amount of Rs. 3.42 lakhs to the Appellant. The clear answer to the submission of the defence is that an FIR is not expected to be an all encompassing compendium of all the details of the crime. The FIR is not an encyclopaedia of details, as the Supreme Court has observed. In the present case, the FIR was lodged by a distraught fifty five year old father from a distant village whose only son was found murdered in a hotel in Mumbai. The Court must not lose sight of the probable 14 mental and physical condition of a bereaved father. Bereaved parents cannot in such situations be expected to discharge the unrealistic expectations of an astute criminal lawyer in a prosecution for the offence at a future date. In the recent judgment in Animireddy Venkata Ramana vs. Public Prosecutor , High Court of Andhra Pradesh,2 the Supreme Court observed thus: “In the first information report all the accused persons were named and overt acts on their part were also stated at some length. Each and every detail of the incident was not necessary to be stated. a first information report is not meant to be encyclopaedic. While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well-known principles of caution.” PW 8 deposed that the Investigating Officer had accompanied him to the house of the Appellant and during the course of the search, the Police took a photograph of the Appellant. This aspect of the matter 2 (2008) 5 SCC 368 15 would be considered in greater detail when the question as to the identity of the accused is addressed during the course of this judgment. At this stage, it merits emphasis that the testimony of PW 8 who was the father of the deceased, contains an account of the prior dealings of the Appellant with PW 8 upon a representation that he would arrange for sending Kuljinder abroad. The evidence of PW 8 contains an elaboration of the events which took place culminating in the evening of 12th February 2001 when the Appellant informed PW 8 that Kuljinder would be departing for the U.K. from Mumbai at 4 a.m. on 15th February 2001. PW 8 returned home to his village in Punjab thereafter. There can be no manner of doubt that PW 8 is a witness of truth. There is no reason for PW 8 to depose falsely. The omissions to which a reference has been made by Counsel appearing on behalf of the Appellant do not discredit the testimony of PW 8. PW 8 identified the Appellant as the person who had visited him repeatedly with an offer to send Kuljinder abroad and with whom the Appellant was last seen together on or about 7 p.m. on 12th February 2001 at Delhi international airport by PW 8. The Appellant had 16 represented to PW 8 that the deceased was being taken by him to Mumbai and that the deceased would be departing from Mumbai at 4 a.m. on 15th February 2001. 12. The next link in the case of the prosecution relates to the circumstances which transpired between 12th February 2001 until the body of the deceased was recovered from the room in hotel Yatree on 15th February 2001. The FIR was lodged by PW 1 Mohnish Patil. PW 1 stated that on 13th February 2001, three guests had checked into Room 303 at the hotel and their names were mentioned in the register maintained at the hotel. PW 1 who was not on duty on 13th February 2001 reported for the first shift on 14th February 2001 and at about 11.30 a.m. all the three guests were about to leave the hotel. PW 1 asked the said three guests as to whether they were going to continue in the room to which he received an affirmative response. One of the three guests whom PW 1 identified as the Appellant herein in Court, deposited an amount of Rs.1200/- against which a receipt was issued. PW 1 identified both the Appellant and the co-accused 17 in Court. On 15th February 2001 PW 1 was again on duty for the first shift. According to him, he received no response from Room 303 between 12.30 p.m. and 12.45 p.m. and sent a waiter upto the room. Again there was no response. PW 1 reported this to the Vakola Police Station. The Police obtained a duplicate key and upon the room being opened, PW 1 found that the third guest who had accompanied the Appellant and the co-accused was lying dead in a pool of blood. PW 1 participated in the identification parade held at the Arthur Road Jail in respect of the Second Accused. Admittedly no identification parade was held in respect of the Appellant. In his complaint to the Police, Exhibit 12, PW 1 has stated the assumed names of the two accused, namely, Ravi Malhotra and Bhupender Singh as reflected in the hotel register. During the course of his cross-examination, PW 1 stated that on 13th February 2001 his further statement was recorded by the Police after he had identified a photograph which was shown to him by the Police. 13. PW 2 John Nadar, was a receptionist at the hotel and 18 reported for the third shift at 10 p.m. on 14th February 2001. His testimony was that between 4.30 a.m. and 4.45 a.m. two customers went out of the hotel when he was at his counter. Upon being asked, both the customers stated that they were not checking out, but were going for a walk and that one other person was sleeping in Room 303. PW 2 identified the two customers who left the hotel as the Appellant and the co-accused in Court. PW 2, like PW 1 was also shown a photograph at the Police Station which he recognized as the photograph of the Appellant. PW 2 participated in the identification parade of the co-accused. 14. PW 4 P.S. Gupta, was serving as a receptionist at the hotel, like PW 1 and PW 2. On 13th February 2001 he was on duty at the Reception Counter in the first shift between 6 a.m. and 2 p.m. Between 1.30 and 2 p.m. three customers came to the Reception Counter and booked a room whereupon PW 4 made an entry against the names of the two customers as “2+1”. Two of the customers gave their names as Ravi Malhotra and Bhupender Singh which were 19 accordingly recorded in the register at Entry No.80034 (Exh.19). PW 4 identified the Appellant as the customer who had furnished his name as Ravi Malhotra while checking in at the hotel. After the incident, PW 4 went to Room 303 where he found the dead body of the person who had accompanied the Appellant at the hotel on 13th February 2001. PW 4 accompanied the team of Police officials to the village of the Appellant (village Chitti in Jalandhar District) from where he had absconded. PW 4 deposed that the Police had taken one photograph from a room of a residential house of the Appellant. PW 4 had also identified the Appellant at Vakola Police Station. 15. PW 11 Barun Biswas was a waiter at the hotel. His testimony was that there was no bell boy at the hotel and hence a waiter had to accompany each guest with the key of the room which was alloted to him. He deposed that on 13th February 2001, he had accompanied two customers who had come to the hotel and to whom Room 303 was allotted. Half an hour thereafter one more guest had come to the counter whom PW 1 had sent together with the witness to 20 Room 303. An extra bed was arranged for the third guest. PW 11 deposed that he had seen the occupants of Room 303 again during the course of his duty on 14th February 2001. PW 11 identified the Appellant in Court as the person whom he had seen on 13th February 2001 together with the other occupants who had booked Room 303 at the hotel. 16. The principal ground of challenge to the testimony of the prosecution witnesses is that the identification of the Appellant is liable to be discarded because the prosecution witnesses had been shown a photograph of the deceased during the course of investigation. PW 4, as noted earlier, accompanied the team of the Police to the village of the Appellant in the district of Jalandhar. PW 4 deposed that the Police had taken a photograph from one room of the residential house of the Appellant. PW 4 deposed that he had identified the photograph. PW 1, PW 2 and PW 11 have also deposed that they had seen the photograph of the Appellant at the Police Station. The submission before the Court is that this 21 circumstance is in itself sufficient to discredit the identification of the Appellant. In support of the submission, Counsel appearing on behalf of the Appellant relied upon several judgments to which it would be necessary shortly hereafter to turn. On the other hand, the submission of the Learned APP is that there is