Yuvaraj Ambar Mohite Vs. State of Maharashtra  Insc 668 (19 October 2006)
Sinha & Dalveer Bhandari S.B. Sinha, J :
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.
finished his lunch early and returned home to have a nap.
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.
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 uncle's 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.
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.
was asked by the doctor to report the matter to the police.
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.
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.
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 the deceased:
Linear transverse cuts (probably sharp cutting instrument), left index, middle
ring finger and right index and middle fingers.
and swelling on the lower lip.
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.
CLW 1 cm x 1 cm over bridge of the nose
CLW 3 cm x 2 cm on left parietal region with evidence of Haemotoma
Multiple small contusions present on medial aspects of both thighs
Contusion over the left leg near medial malleolus
Contusion on right leg posteriorly.
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
was the Investigating Officer.
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.
U.U. Lalit, learned senior counsel appearing on behalf of Appellant submitted
that the prosecution cannot be said to have proved its case beyond all
reasonable doubt. It was urged that the entire case being based on
circumstantial evidence, the links of the chain cannot be said to have been
established. The learned counsel would contend :
was not proved that the green colour moped said to be belonging to Appellant
was used by him for coming to the residence of the deceased.
If the moped belonged to him, there was no reason as to why he would travel in
an autorickshaw after the incident.
The testimony of the prosecution witnesses, viz., PWs 1, 3 and 4 cannot be
relied upon as according to PW-1, PW-3 did not come to see him in the evening
and only PW-4 came.
From the deposition of PWs 3 and 4, it is not established that Appellant was
last seen with the deceased.
PW-3 was a child witness and his testimony could not have been relied upon
without corroboration particularly in view of the fact that he could not
identify Appellant in court.
The blood stained banian of Appellant was although sent for chemical test by
the FSL, the prosecution did not prove that the blood group of the deceased was
There is no evidence to show as to who had taken the nail clippings so as to
prove the evidence of presence of blood in his nails.
The prosecution failed to prove any motive on the part of Appellant.
Although the prosecution charged Appellant for commission of a rape of the
deceased but the same had not been proved.
learned counsel appearing on behalf of the State, on the other hand, submitted
presence of Appellant in the room of the deceased for a long time having been
proved and as he was the person last seen in the company of the deceased, it
was for him to explain as to how she met her death.
Appellant was sporting beard on the day of incident and the date on which PW-3
was examined in the court as he was not having beard, PW-3 could not identify
him and, thus, the same cannot be held to be fatal.
It was pointed out that as soon as a photograph of Appellant with beard was
shown to him, he identified the same to be that of the said accused and as such
it cannot be said that he was a tutored witness.
The circumstances against Appellant were sufficient to bring home the charge of
death of the deceased being of a homicidal nature is not in dispute. It has not
further been disputed that at the instance of PW-2 a case under Section 326 of
the Indian Penal Code was pending against Appellant. It is furthermore not in
dispute that the deceased was one of the witnesses in the said case. The
deceased and PW-2 were autorickshaw drivers. Appellant was a teacher of Judo
Karate and was teaching in School No. 9 situated at Dhule. He was well
acquainted with the deceased who was mediating in the dispute between him and
2.9.1988, Appellant came to the hotel near S.T. Stand where the deceased and
PW-2 had been taking tea and she requested him to compromise the matter
pursuant whereto on 3.9.1988 PW-2 met the deceased at about 10 a.m. at the said
place. She had expressed her dissatisfaction that PW-2 had not seen Appellant
relationship between the prosecution witnesses and the deceased is not in
dispute. From the materials on record, it appears that they had been residing
in parts of the same premises. It is also not in dispute that Appellant was
sporting beard at the relevant time. The descriptions of Appellant as disclosed
by PWs 1, 3 and 4 are also not denied. PW-1 did not know Appellant. According
to him, he had seen him for the first time in the room of the deceased. He was
there for some time, had his meals with them then he went to his house and went
was a child witness. The learned Sessions Judge satisfied himself that he was
capable of deposing before a court of law. He categorically stated that his
father used to treat the deceased as his sister.
used to visit her house very often. He used to help her in purchase of mutton,
milk, vegetables, etc. The deceased called him on that day for purchasing
mutton. When he went to deliver the same, he saw Appellant.
query, the name of Appellant was disclosed. He identified him as a person
teaching Judo Karate in School No. 9. It may be true that he had not been able
to identify Appellant in court because he was not having beard but he was
identified when his photograph was shown to him. In his evidence, he
categorically stated that not only his father, the deceased and Appellant had
been taking liquor but he also disclosed that they were consuming whisky mixed
with beer while taking meal. As he saw Appellant recoiling on the body of the
deceased, he went to the balcony as he had become ashamed on seeing the same.
He was given a sum of Rs. 100/- for getting a bottle of liquor. He brought it.
He was asked again to get another bottle. He did so again. They consumed the
same whereafter he was again asked to bring a third bottle which request was
also complied with. He found the deceased adjusting the channel of TV and
Appellant had been standing nearby with his hand around the neck of the
deceased. He remembered also the title song of the serial which was being
exhibited in the TV. He categorically stated that when he came back in the
afternoon, he was not allowed to go inside by Appellant. PW- 4 also came and
she was also not allowed to go inside on the plea that the deceased was sleeping.
may be little discrepancies as regards waking up of PW-1.
may also be some discrepancies in the evidences of PW-1 and PW- 3 as regards
his presence in the house. But then there is no inconsistency in regard to the
other details. PW-3 had been cross-examined but nothing tangible has been
brought on records to discredit his testimony. He has answered each and every
question put to him in cross-examination. The evidence of PW-3 was also
corroborated by the post mortem report which shows that there was 122 mg. and
117 mg. of Ehtyl Alcohol per 100 gms. in the two samples of viscera, i.e.,
stomach/ intestine and spleen/ liver which according to the medical evidence
proved excessive consumption of liquor by the deceased. Appellant had procured
three bottles of liquor and evidently saw to it that the deceased came under
influence of alcohol.
the deceased and Appellant started taking meals at about 11 O' Clock. According
to PW-3, after PW-1 left to have a nap, the deceased and Appellant had taken
three bottles of liquor which must have taken 2-3 hours time. Appellant,
therefore, was in company with the deceased for a considerable time immediately
prior to her death. He was seen by PWs 3 and 4 in between 4.00 and 4.30 p.m. The deceased was found dead at about 4.30 or 4.45 p.m. If the evidence of the prosecution witnesses are
believed and we see no reason as to why they should not be, the deceased was
last seen with Appellant. What would be its effect would vary from case to
case. Whether the said evidence shall be relied upon or not would also be
subject to other materials which may be brought on record by the parties. The
Court may, however, depending on the facts and circumstances of this case look
for some corroboration.
Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh [JT2006(4)SC16], this Court opined:
last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any person other than
the accused being the author of the crime becomes impossible. Even in such a
case courts should look for some corroboration." Let us now see as to
whether the last seen evidence stands corroborated.
is the sister of the deceased. She had not only an occasion to see Appellant,
he also knew her as he had invited her in a programme which was being attended
by Dr. Mrs. Borse M.L.A. She went to see a movie and came back at about 4-4.30 p.m. when she was prevented from going inside. She and
PW-3 both woke up PW-1. PW-1 went out to bring back the dog of the deceased.
They came to the house and found the deceased lying on the cot.
had not at all been cross-examined in material particulars.
from the suggestion that the deceased did not disclose the name of Appellant as
Mohite and that she had not gone to her house on the said date, no other
question was put to her in the cross-examination.
prosecution might not have been able to prove that the moped which was parked
outside the house belonged to Appellant or its colour was green but the same
was of not much significance.
(PW-8), however, proved that he had picked up Appellant from the Jail Road at about 4.30 p.m. and he was brought to his residence.
was residing in the same premises. He was asked to examine the deceased who was
found unconscious. He categorically stated that he refused to examine her as he
had dispute with her. He appears to be a truthful witness. However, PW-4
persuaded him to come to the place of occurrence. He came, examined her and
found her dead. He himself went to the police station and lodged a First
Information Report. PW-8 also knew Appellant as a teacher of Judo Karate.
Appellant was, therefore, well-known in the locality as a teacher in the Judo
Karate. As noticed hereinbefore, the fact that he was an accused in a case
under Section 326 of the Indian Penal Code at the instance of PW-2 is also not
could identify him in the said capacity. PW-4 also identified him. According to
her, Appellant also knew her from before. PWs 1 and 4 admittedly identified him
in the court. PW-3 being a child witness could not identify him without a
beard. If he was a tutored witness, he would have identified him even without
beard, but he did not do so. It shows that his evidence is reliable. Each of
the witnesses had sufficient time to see Appellant and, therefore, his
identification in court by them cannot be discarded. Appellant did not deny or
dispute before the Trial Court that the photograph shown to PW-3 was not his.
The only contention raised before the Trial Court was that the same was not
seized from his house on 4.9.1988. In any event, description of Appellant as
disclosed in the First Information Report tallies with that shown in court by
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
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.
the same had not been proved beyond all shadow of doubt.
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.
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'.
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.
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.
State (Delhi Admn.) v. Dharampal [(2001) 10 SCC 372], this Court opined:
it is to be seen that where an omission, to bring the attention of the accused
to an in'culpatory 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 to
him." [See also State of Punjab v. Swaran
Singh, (2005) 6 SCC 101] Mr. Lalit complained that no test identification
parade was held.
sufficient description of Appellant was given in the FIR and he was arrested
soon thereafter, in our opinion, it was not necessary.
may, however, notice that in Munshi Singh Gautam (dead) and Others v. State of M.P. [(2005)9 SCC 631], this Court opined:
identification parade would be of no consequence in view of Jawahar's (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.
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 Court opined:
are 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.
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 case.
therefore, have no hesitation in affirming the judgment of the learned Sessions
Judge as also the High Court and hold that the circumstances brought on record
by the prosecution clearly demonstrate that it was Appellant alone who
committed the murder and in that view of the matter absence of motive would be
immaterial. [See Mani Kumar Thapa v. State of Sikkim (2002) 7 SCC 157].
the reasons aforementioned, there is no merit in this appeal which is dismissed