Case: Yuvaraj Ambar Mohite Vs. State Of Maharashtra

Jubedabai, deceased although a lady was of unique character. She although passed medical course from Burhanpur and initially started medical practice, she was earning her livelihood by driving an autorickshaw. The first informant, Yusuf Sardar Pinjari (PW-1) was her foster brother. Ashraf Yusuf Pinjari who examined himself as PW-3 was son of PW-1. He at the relevant time was a minor. Jubedabai Abdul Rajjak Shaikh who examined herself as PW-4 was the younger sister of the deceased. Appellant herein was an employee of the State Reserves Police. He was an accused of commission of an offence under Section 326 of the Indian Penal Code for causing hurt to another autorickshaw driver Macchindra Baburao Thombare (PW-2). The deceased was called upon to mediate in the said dispute. PW-2 with a view to settle the dispute between himself and Appellant herein met each other in the morning of 3.9.1988. Appellant thereafter came to the residence of the deceased. He was of black complexion and was sporting beard. The deceased at about 10.30 11.00 a.m. was standing in the balcony of her house. She invited PW-1 for meals as the food was being cooked. He went inside the room and found Appellant present there. They were consuming liquor. PW-3 was asked to bring more liquor. While the deceased, Appellant and PW-1 were in the room, PW-4 Jubedabai Abdul Rajjak Shaikh (sister of the deceased) came. She requested for some money for seeing a movie. The deceased gave her Rs. 5/- for the said purpose.2. PW-1 finished his lunch early and returned home to have a nap. He overheard the deceased and Appellant conversing in relation to settling of a matter by way of compromise. The deceased gave PW-3 Ashraf a sum of Rs. 11/- for purchasing mutton for the dog. He enquired about the identity of Appellant to which the deceased named him. He recollected that he had seen him teaching Judo Karate in School No. 9. He brought three bottles of beer, payments whereof was made by Appellant. When he was delivering the third bottle of bear, he saw the deceased adjusting the channel of the TV and Appellant had been standing near her and had put his hand round her neck. They mixed drinks. PW-3 further saw Appellant recoiling on the body of the deceased. He thereafter went to his uncles place for watching a serial in T.V. He came back at about 4.00 p.m. The door was locked. He was not allowed entry in the room. PW-4 after witnessing the movie also came back in the meanwhile. Appellant allegedly opened the door partially and peeped through the top of it and informed her that the deceased was sleeping.3. PWs 3 and 4 separately came to the house of PW-1. He was awakened up and was informed that the room of the deceased was locked from inside. In the meantime, the dog of the deceased was seen out. It was brought back to the house by PW-1 and chained. They took a cup of tea there, and then came back to the place of occurrence. The deceased was found lying unconscious on the bed. Dr. Vasant Kesha Manekar (PW-5) who used to reside on the ground floor of the house was requested to examine her. He on examining declared her dead.4. PW-4 was asked by the doctor to report the matter to the police. She declined whereupon Dr. Manekar himself lodged a report on the basis whereof a First Information Report (FIR) was lodged at about 1730 hrs. PW-1 in his First Information Report not only gave description of Appellant but also categorically stated that to his knowledge the boy sporting beard was facing a prosecution in the court and the deceased was a witness therein. Appellant was arrested within 12 hours from lodging of the First Information Report on the basis of his description given in the FIR.5. Appellant was charged for commission of an offence under Section 302 of the Indian Penal Code. He pleaded not guilty thereto. The prosecution in support of its case examined ten witnesses. PW-2 was the complainant in the case against Appellant wherein the deceased was mediating. PW-5 is the first informant who had examined the deceased and declared her dead.6. Dr. Prakash Patil (PW-9) who conducted the autopsy opined that the death was homicidal in nature. The doctor opined that the death was caused due to extensive head injuries with associated evidence of throttling. He found the following injuries on the person of theLinear transverse cuts (probably sharp cutting instrument), left index, middle ring finger and right index and middle fingers.(2) Contusion and swelling on the lower lip.(3) Contusion over the anterior side of the neck and small contusion on right side of neck and three linear contusions left side of the neck with scratches probably due to nails.(4) CLW 1 cm x 1 cm over bridge of the nose.(5) CLW 3 cm x 2 cm on left parietal region with evidence of Haemotoma.(6) Multiple small contusions present on medial aspects of both thighs.(7) Contusion over the left leg near medial malleolus.(8) Contusion on right leg posteriorly.Bhagwan Sabaji Talewar (PW-7) in his deposition stated that Appellant had informed him on the date of incident that he would not be available for Judo class in the evening. He was declared hostile. Vijay Ramchandra Deokar (PW-8) is a driver of autorickshaw. He deposed that Appellant had travelled in his autorickshaw from pan shop on Jail Road to SRPF Camp and then to his residence.8. PW-10 was the Investigating Officer.9. The learned Trial Judge as also the High Court recorded a judgment of conviction against Appellant relying on the evidence of PWs. 1, 3 and 4.

Reasoning:
25. There is no reason as to why the prosecution witnesses would falsely implicate Appellant. There was also no reason as to why they would identify a wrong person. The prosecution, therefore, proved that Appellant was the person last seen with the deceased. PW-3 had occasion to see him and the deceased together at least four times as he had been asked to purchase mutton and liquor on three occasions. He had also stated in details as to how liquor was consumed by them. Not much imagination is needed to note the effect thereof. PWs 3 and 4 came to the room of the deceased and knocked the door but Appellant did not allow them to enter inside inter alia on the pretext that she was sleeping. Even if it is assumed that PW-4 could not have seen his face as only upper portion of the door was said to have been opened, PWs 3 and 4 must have heard his voice. Appellant talked to them in the morning. There was no reason as to why they would not be able to identify the voice to be that of Appellant. The immediate motive for killing the deceased by Appellant might not have been proved. What transpired in a closed room cannot be known. The circumstances brought on records amply support the prosecution case and in particular the statements of PW-3.26. The doctor who conducted autopsy found saree and petticoat of the deceased to be loose. The Gynacologist who examined the dead body of the deceased opined that there might have been intercourse before death. However, the same had not been proved beyond all shadow of doubt. PW-3 had also, as noticed hereinbefore, stated about the manner in which Appellant was recoiling on the body of the deceased which shows the amorous adventure he was making. A screw driver was found at the place of the incident. It was stained with blood. According to the doctor, the fracture sustained by the deceased was possible to be inflicted by it. Appellant was a man of strong physique. He knew Judo Karate. The doctor found contusions on the right side of the neck and three linear contusions on the left side of the neck with scratches probably due to nails. The nail clippings of Appellant were taken. They were found to be stained with human blood. The blood group of Appellant was A. His banian (Ex. 5) and nicker (Ex. 7) were found stained with human blood containing group B.27. It is true that blood group of the deceased could not be determined but then the fact remains that the undergarments of Appellant were smeared with blood of a different group. In a case of this nature, having regard to the evidence on records, we are of the opinion that motive takes a back seat.28. It may be true that the attention of Appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.29. In State (Delhi Admn.) v. Dharampal [(2001) 10 SCC 372] , this Courtit is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put toalso State of Punjab v. Swaran Singh, (2005) 6 SCC 101 ]30. Mr. Lalit complained that no test identification parade was held. As sufficient description of Appellant was given in the FIR and he was arrested soon thereafter, in our opinion, it was not necessary.31. We may, however, notice that in Munshi Singh Gautam (dead) and Others v. State of M.P. [(2005)9 SCC 631] , this Courtidentification parade would be of no consequence in view of Jawahars (PW 14) evidence that he did not know the physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the evidence of Rajkumar (PW 12).Yet again in State of Punjab v. Swaran Singh [(2005) 6 SCC 101] , this Court went to the extent of stating that despite opportunity the accused did not specifically examine the witnesses in respect of facts deposed by him and, thus, failure on the part of the court to give an opportunity to the accused to answer specifically in regard to the evidence of the said witnesses would be immaterial as thereby he was not prejudiced.33. Mr. Lalit contended that only one photograph of Appellant should not have been shown to PW-3 in the court. The learned counsel in this behalf has drawn our attention to a decision of this Court in D. Gopalakrishnan v. Sadanand Naik and Others [(2005) 1 SCC 85]  wherein in a matter of investigation this Courtare no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitnesses and recorded their statements under Section 161 CrPC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.The said decision cannot be said to have any application in the instant