YUVARAJ AMBAR MOHITEversusSTTE OF MAHARASHTRA

                           YUVARAJ AMBAR MOH ITE                                     A
                                     v.
                           STATE OF MAHARASHTRA

                                OCTOBER 19, 2006

                   [S.B. SINHA AND DAL VEER BHANDARI, JJ.]                           B

          Penal Code, 1860--Section 302-Murder-Conviction by Courts below
    on circumstantial evidence i.e. accused last seen with deceased and evidence
    of witnesses-Challenge to-Held: Conviction upheld-Deposition of
    witnesses showed that deceased was last seen with accused-Accused C
    remained with deceased for considerable time immediately prior to her death-
    No reason as to why prosecution witnesses would falsely implicate accused-
    Sufficient description of accused was given in FIR-He was arrested soon
    thereafter-Circumstances brought on record by prosecution clearly
    demonstrate that it was accused alone who committed the murder and in that D
    view of the matter absence of motive would be immaterial-Evidence-
    Circumstantial evidence-"Last seen" theory.

           According to the prosecution, Appellant committed the offence of
    murdering the foster sister of PWI. The Trial Court as well as the High
    Court convicted Appellant placing reliance upon the testimony of PWs 1, 3        E
    and 4. PW3, a child witness is the son of PWt while PW4 is the younger
    sister of the deceased .. On the fateful day, deceased was last seen with
    Appellant at her residence. She allegedly took liquor with Appellant after
    taking meals and Appellant remained with her for considerable time
    immediately prior to her death. PW3 allegedly delivered the bottles of liquor.
    Appellant was arrested within 12 hours from lodging of the FIR on the basis      F
    of his description given in the FIR. The doctor who conducted the autopsy
    opined that the death was homicidal in nature and that the death was caused
    due to extensive head injuries with associated evidence of throttling.

        In appeal to this Court the question which arose for consideration is
    whether the circumstances .IH"ought on record by the prosecution                 G
    demonstrated that it was Appellant alone who committed the murder.

          Dismissing the appeal, the Court



-
          HELD: I. The circumstances brought on record by the prosecution
                                         677                                         H
    678                     SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A clearly demonstrate that it was Appellant alone who committed the murder
    and in that view of the matter absence of motive would be immaterial.
                                                                        1690-DI

         2.1. PW-3 was a child witness. The Sessions Judge satisfied himself
  that he was capable of deposing before a Court of law. He categorically stated
B that his father (PWI) used to treat the deceased as his sister. It may be true
  that PW3 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, PW3 categorically stated that not only his father (PWl), the
  deceased and Appellant had been taking liquor but he also disclosed that they
C were consuming whisky mixed with beer while taking meal. 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/
D liver which according to the medical evidence proved excessive cor.sumption
  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. .
                                                          (685-8, C; 685-G-HJ

          2.2. According to PW-3, after PW-I left to have a nap, the deceased and
E   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 between
    4.00 and 4.30 p.m. The deceased was found dead at about 4.30 or 4.45 p.m.
                                                                         (686-A-BJ
F         2.3. If the evidence of the prosecution witnesses are believed and there
    is 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 evid1:nce shall be relied upon or not would also be suhject to other
    materials which may be brought on record by the parties. The Court may,
G   however, depending on the facts and circumstances of this case look for some
    corroboration. (686-8-CI
          Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh,
    JT (2006) 4 SC 16, referred to.
       3. Appellant was well-known in the locality as a teacher in the Judo
H Karate. PW3 could identify him in the said capacity. PW4 also identified him.       -
               YUV ARAJ AMBAR MO HITE i·. STA TE OF MAHARASHTRA             679

According to her, Appellant also knew her from before. PWsl and 4 admittedly        A
identified him in the Court. PW3 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         B
or dispute before the Trial Court that the photograph shown to PW-3 was not
his. In any event, description of Appellant as disclosed in the First Information
Report tallies with that shown in Court by the witness. [687-C-FI

      4. 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         C
a wrong person. The prosecution, therefore, proved that Appellant was the
person last seen with the deceased. PW3 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          D
but Appellant did not allow them to enter inside inter a/ia on the pretext that
she was sleeping. Even if it is assumed that PW4 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     E
of the 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. [687-F-H; 688-A-B]

        5.1. The doctor who conducted autopsy found saree and petticoat of the      p
deceased to be loose. The Gynaecologist 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 shadows of doubt. 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. The doctor found contusions on the right side of the neck and three linear      G
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'.
It is true that blood group of the deceased could not be determined but then        H
    680                    SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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, motive takes a back seat. 1688-C-FI

          5.2. 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
B   vitiate the judgment of conviction and sentence as he was not prejudiced
    thereby. 1688-F, GI

          5.3. Though Appellant complained that no test identification parade was
    held, as sufficient description of Appellant was given in the FIR and he was
    arrested soon thereafter, it was not necessary. [689-C)
c
          D. Gopa/akrishnan v. Sadanand Naik and Ors., [20051 1 SCC 85,
    distinguished.

          State (Delhi Admn.) v. Dharampa/, [2001110 SCC 372; State of Punjab
    v. Swaran Singh, (200516 SCC 101 and Mani Kumar Thapa v. State ofSikkim,
D   1200217sec157, relied on.

          Munshi Singh Gautam (dead) and Ors. v. State of M.P., [20051 9 SCC
    631, referred to.

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 1512-
E   1513 of2005.

          From the Final Judgment and Order dated 5 .11.2004 of the High Court
    of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 202
    of 1996 (Aurangabad) and Criminal Appeal No. 259of1990 (Bombay).

F        U.U. Lalit, Nitin Sangra, Prasenjit Keswani and lrshad Ahmad for the
    Appellant.

         Sushi! Karanjkar, Asha G. Nair and V.N. Raghupathy (for Ravindra
    Keshavrao Adsure) for the Respondent.

G         The Judgment of the Court was delivered by

          S.B. SINHA, J. 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- I) was her foster
H   brother. Ashraf Yusuf Pinjari who examined himself as PW-3 was son of PW-
        YUVARA.I AMBAR MOHITEl'. STATE OF MAHARASHTRA [S.B. SINHA, .I]   68 J

 I. He at the relevant time was a minor. Jubedabai Abdul Rajjak Shaikh who A
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 B
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-I for meals as the food was being cooked. He
went inside the room and found Appellant present there. They were consuming C
liquor. PW-3 was asked to bring more liquor. While the deceased, Appellant
and PW- I 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.

      PW-I finished his lunch early and returned home to have a nap. He D
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 E
beer, payments whereof was made by Appellant. When he was delivering the
third bottle of beer, 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 F
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.

      PWs 3 and 4 separately came to the house of PW-I. He was awakened
up and was informed that the room of the deceased was locked from inside. G
In the meantime, the dog of the deceased was seen out. It was brought back
to the house by PW- I 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 H
    682                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A on examining declared her dead.
          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-I in his
    First Information Report not only gave description of Appellant but also
B   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.

          Appellant was charged for commission of an offence under Section 302
C 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.

D         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 the deceased:

           (I)   Linear transverse cuts (probably sharp cutting instrument), left
E                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.
F
           (4)   CL W I cm x I cm over bridge of the nose
           (5) CL W 3 cm x 2 cm on left parietal region with evidence of
               Haemotoma
           (6)   Multiple small contusions present on medial aspects of both
G                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
H had informed him on the date of incident that he would not be available for
         YUVARAJ AMBAR MOHITE 1'. STATE OF MAHARASHTRA [S.B. SINHA.J]      683

Judo class in the evening. He was declared hostile. Yijay Ramchandra Deokar        A
(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.

     PW-I 0 was the Investigating Officer.
                                                                                   B
     The learned Trial Judge as also the High Court recorded a judgment of
conviction against Appellant relying on the evidence of PWs. I, 3 and 4.

      Mr. 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             C
circumstantial evidence, the links of the chain cannot be said to have been
establishen. The learned counsel would contend :

       (i)    It 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.                                                            D
       (ii)   If the moped belonged to him, there was no reason as to why he
              would travel in an autorickshaw after the incident.
       (iii) The testimony of the prosecution witnesses, viz., PWs I, 3 and
             4 cannot be relied upon as according to PW-I, PW-3 did not            E
             come to see him in the evening and only PW-4 came.
       (iv) From the deposition of PWs 3 and 4, it is not established that
            Appellant was last seen with the deceased.
       (v) PW-3 was a child witness and his testimony could not have been
           relied upon without corroboration particularly in view of the fact      F
           that he could not identify Appellant in court.
       (vi) 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 group 'B'.
       (vii) There is no evidence to show as to who had taken the nail
                                                                                   G
             clippings so as to prove the evidence of presence of blood in his
             nails.
       (viii) The prosecution failed to prove any motive on the part of
              Appellant.
                                                                                   H
    684                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A           (ix)   Although the prosecution charged Appellant for commission of
                   a rape of the deceased but the same had not been proved.

          The learned counsel appearing on behalf of the State, on the other
    hand. submitted that:

            (0     the presence of Appellant in the room of the deceased for a long
B
                   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.
            (ii)   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
c                  beard, PW-3 could not identify him and, thus, the same cannot
                   be held to be fatal.
            (iii) 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
D                  a tutored witness.
            (iv) The circumstances against Appellant were sufficient to bring
                 home the charge of murder.

           The death of the deceased being of a homicidal nature is not in
E 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
F   Dhule. He was well acquainted with the deceased who was mediating in the
    dispute between him and PW-2. On 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 I0 a.m. at the said place. She had expressed her
    dissatisfaction that PW-2 had not seen Appellant as promised.
G
        The 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 I, 3 and 4 are also not denied. PW- I did not know
H Appellant. According to him, he had seen him for the first time in the room
          YUVARAJ AMBAR MOl llTh STATE OF MAHARASHTRA [S.B. SINHA, J]       685

 of the deceased. He was there for some time, had his meals with them then          A
 he went to his house and went to bed.

         PW-3 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. He used to visit her
  house very often. He used to help her in purchase of mutton, milk, vegetables,    B
  etc. The deceased called him on that day for purchasing mutton. When he
  went to deliver the same, he saw Appellant. On his 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           C
  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. I00/- for getting a bottle of liquor. He brought it. He was    D
  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         E
 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.

      There may be little discrepancies as regards waking up of PW- I. There F
may also be some discrepancies in the evidences of PW-I 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 morten: report which G
shows that there was 122 mg. and 117 mg. of Ehtyl Alcohol per I00 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.                 H
    686                    SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A       PW-I, the deceased and Appellant started taking meals at about I I O'        •
  Clock. According to PW-3, after PW-I 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 between
  4.00 and 4.30 p.m. The deceased was found dead at about 4.30 or 4.45 p.m.
B 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,
C however, depending on the facts and circumstances of this case look for some
  corroboration.

          In Ramreddy Rajeshkhanna Reddy and Anr. v. State ofAndhra Pradesh,
    JT (2006) 4 SC 16, this Court opined:

D           "The last-seen theory, furthennore, 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."
E
          Let us now see as to whether the last seen evidence stands corroborated.

          PW-4 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
F   came back at about 4-4.30 p.m. when she was prevented from going inside.
    She and PW-3 both woke up PW-I. PW-I went out to bring back the dog
    of the deceased. They came to the house and found the deceased lying on
    the cot.

          She had not at all been cross-examined in material particulars. Apart
G 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.

          The prosecution might not have been able to prove that the moped
H which was parked outside the house belonged to Appellant or its colour was
         YUVARAJ AMBAR MOHITE r. STATE OF MAHARASHTRA [S.B. SINHA, J.]     687

green but the same was of not much significance.                                   A
      Vijay (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.

       PW-5 was residing in the same premises. He was asked to examine the
deceased who was found unconscious. He categorically stated that he                B
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     C
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 in dispute.

       PW-3 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                 D
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.           E
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 the witness.
                                                                                   F
      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 G
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 H
    688                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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
B   amply support the prosecution case and in particular the statements of PW-
    3.

         The doctor who conducted autopsy found saree and petticoat of the
  deceased to be loose. The Gynaecologist who examined the dead body of
  the deceased opined that there might have been intercourse before death.
C 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           ...
D 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)
E were found stained with human blood containing group 'B'.
          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
F   evidence on records, we are of the opinion that motive takes a back seat.

          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.
G
          In State (Delhi Admn.) v. Dharampal, [2001] 10 SCC 372, this Court
    opined:

            "Thus 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
H           ipso.facto vitiate the proceedings. The accused must show that failure
             YUVARAJ AMBAR MOHITE 1'. STATEOF M4t'ARASHTRA [S.B. SINHA,J.]    689

            of justice was occasioned by such omission. Further, in the event of     A
            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."
                                                                                     B
          [See also State of Punjab v. Swaran Singh, [2005) 6 SCC IOI]

           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.
                                                                                     c
          We may, however, notice that in Munshi Singh Gautam (dead) and Ors.


-   v. State of M.P., [2005] 9 SCC 631, this Court opined:

            "Test 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     D
            date of occurrence. What remains is the evidence of Rajkumar (PW
            12)."

          Yet again in State of Punjab v. Swaran Singh, [2005) 6 SCC IOI, 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,   E
    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.

          Mr. Lalit contended that only one photograph of Appellant should not       F
    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 Ors., [2005) I SCC 85 wherein in a matter of investigation
    this Court opined:

           "There are no statutory guidelines in the matter of showing G
           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
                                                                                     H
    690                       SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A             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
B             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
c             shall never be shown to the witness in advance."

             The said decision cannot be said to have any application in the instant
    case.

          We, therefore, have no hesitation in affirming the judgment of the
D   learned Sessions Judge as also the High Court and hold that the circumstances
    brought on record by the prosecution clearly demonstrate that it was Appell it
    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,
    [200211 sec 1s11.

E         For the reasons aforementioned, there is no merit in this appeal which
    is dismissed accordingly.

    8.8.8.                                                          Appeal dismissed.