2008 Supreme(Bom) 1443

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD, J.
Ranjyotsingh Gurudayalsingh — Appellant
Versus
The State of Maharashtra — Respondent
CRIMINAL APPEAL NO.1 OF 2005
Decided on: October 6, 2008.

Headnote:Criminal Procedure Code, 1973 - Section 154-FIR Lodged by bereaved father-Not an encylopaedia of details.-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 mental any 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.

       Evidence Act, 1872 - Section 3-Circumstantial evidence-Guilt of accused.-In a case which rests on circumstantial evidence, the prosecution must discharge the burden of establishing all the circumstances which link the accused with the crime and, all those circumstances must be consistent only with the guilt of the accused. That burden has been discharged by the prosecution in the present case.

       Evidence Act, 1872 - Section 3-Use of photograph of accused during investigation for identification-Principles of.-The position in law which emerges is that : (i) Identification by means of a photograph is used by crime detecting agencies for the identification of criminals, including those whose illegal activities transcend national and geographical boundaries; (ii) such an identification when made, takes the place of a test identification; (iii) showing of a photograph or, when available, more than one photograph during the course of investigation by the police is to confirm whether the investigation is proceeding in the right direction; (iv) basic requirements of procedural fairness must be observed; it would hence be impermissible to adopt a technique such as writing the name of the person underneath the photograph which may lead to the identification of a wrong person as the assailant; (v) if a witness has furnished identifying features of the assailants during the course of the investigation, this could be confirmed by the Investigating Officer by showing the photographs of the suspect but the Investigating Officer should not first show a single photograph, but should show more than one photograph if available; (vi) showing a photograph or photographs to a witness prior to a test identification parade would render the investigation in the T.I. parade meaningless; (vii) there are no statutory guidelines which hold the field in India in this regard and the Court would have to assess in every case as to whether the procedure which has been followed is basically fair or otherwise.

       Indian Penal Code, 1860 - Section 300 - Murder - Proof - Evidence of last seen together - Deceased found dead - Long gap between time accused last seen together with deceased alive and deceased found dead - Intervention of third person cannot be ruled out - No other positive evidence - Hazardous to conclude guilt of accused. - The significance of the ’last seen’ theory is to be assessed with reference to the period of time which has elapsed since when the accused and the deceased were last seen alive and the deceased is found dead. In certain cases, the period that has elapsed since the time that the deceased and the accused were last seen together and the deceased is found dead may be so small that the possibility of any person other than the accused being the author of the crime becomes impossible. On the other hand, when there is a long gap between the two events, the possibility of a third person having intervened cannot be ruled out. Consequently, in such a case, in the absence of any other positive evidence, it would be hazardous to arrive at a conclusion of guilt. This principle of law has been enunciated by the Supreme Court in State of U.P. v. Satish, 2005 SCC (Cri) 642 : AIR 2005 SC 1000 and in Venkatesan v. State of Tamil Nadu, 2008 SAR (Cri) 646 : AIR 2008 SC 2369.

       Indian Penal Code, 1860 - Section 300 - Evidence Act, 1872, Section 106 - Murder - Proof - Burden of proof - Lies upon a person having knowledge of fact - Accused last seen together with deceased - Reliable evidence in that regard - Accused to explain circumstances in which they last seen together - Non-explanation of by accused - Accused bluntly and outrightly denied said fact and every incriminating circumstances - An additional link in chain of circumstantial evidence. - The principle of law which has been laid down in the aforesaid judgments would apply to the present case. The appellant was last seen in the company of the deceased by PW 8 on 12th February, 2001. The testimony of PW 8 is that the appellant represented to him that he was accompanying the deceased to Mumbai and that he was arranging to send the deceased to the U.K. by a flight which was to depart at 4 a.m. on 15th February, 2001. The appellant accompanied PW 8 and the deceased from their village in Punjab to Delhi, where all of them were together at the international airport on the evening on 12th February, 2001. There is absolutely no reason or justification to discard the testimony of PW 8. The defence of the appellant in his statement under Section 313 is one of a blunt and complete denial. What happened after the evening of 12th February, 2001, particularly when if at all the appellant parted company with the deceased, were facts within the special knowledge of the appellant. It was for the appellant to explain those facts, but he chose instead a complete denial in his statement under Section 313 of the Code of Criminal Procedure, 1973. The additional link that connects the appellant with the crime and completes the chain is provided by his blunt and outright denial of every one of the incriminating circumstances. It was for the appellant who was last seen in the company of the deceased to explain the circumstances in which they parted company. The failure of the appellant to do so must weigh in the balance as a failure to explain facts which were within his special knowledge.