:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 484 OF 2002 CRIMINAL APPEAL NO. 484 OF 2002 CRIMINAL APPEAL NO. 484 OF 2002 Abdul Hannan Abdulhai Kadri ] Age 45 years, Residing at ] Ashrafaia Masjid, 1st floor, ] Room No.1, Rashid Compound ] Kausa, Mumbra, Tal. & Dist. ] Thane, presently lodged in ] Kolhapur Jail ]..Appellant (Ori.Accused No.1) versus State of Maharashtra ] (through P.S.O. Mumbra Police ] Station) ]..Respondents Mr. K. N. Makasare for the Appellant / Original Accused No. 1. Mrs. G. P. Mulekar, APP for the Respondents - State. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & Smt. R. S. DALVI,JJ. Smt. R. S. DALVI,JJ. Smt. R. S. DALVI,JJ. DATE : 24TH NOVEMBER, 2006 DATE : 24TH NOVEMBER, 2006 DATE : 24TH NOVEMBER, 2006 ORAL JUDGMENT (Per : D. G. Deshpande, J.) : ORAL JUDGMENT (Per : D. G. Deshpande, J.) : ORAL JUDGMENT (Per : D. G. Deshpande, J.) : 1. Heard Advocate for the Appellant / accused and learned APP for the Respondents -State. 2. This is an Appeal by the accused challenging his conviction under Section 302 and 201 of the :2: Indian Penal Code by which he is sentenced to imprisonment for life only under Section 302 of IPC in the judgment delivered by the Adhoc Additional District and Sessions Judge, Thane, on 16.3.2002. 3. The name of the victim is Raziya @ Raziv. She was engaged by the accused for doing the domestic work and accused used to teach her Kuran in the evening. According to the prosecution even though the accused was married, intimacy relationship was developed between the deceased Raziya and the accused. She became pregnant from the accused. The accused was promising that he would marry her but she found that he was avoiding to marry her. He killed her i.e. by strangulation and then cutting her entire body into pieces and then tried to dispose of or destroy the evidence. According to the prosecution, this incident of murder and destruction of evidence occurred sometime between 14.3.1999 to 18.3.1999 at Room No. 401, 4th floor, Milan Building, Rashid Compound, Kausa, Mumbra, Dist : Thane. 4. This is not a case where first missing complaint came to be lodged and then the body of :3: Raziya was discovered. The missing complaint was lodged by the mother of Raziya, Khajat Hussain Shaikh (P.W. 10). Missing complaint was lodged by her on 26.3.1999. But prior to that flesh and other parts of one human body were found by the police. There was no occasion for the prosecution to prove these facts by examining witnesses because as per Exhibit 16 notice was given to the accused to admit or deny documents mentioned as per Exhibit 16. They were documents from Sr. Nos. 1 to 10 and they were as under: Arrest panchnama 26.03.99. Inquest Panchnama 18.03.99. Spot Panchnama 18.03.99. Panchnama of flesh dt. 20.03.99. Panchnama of clothes seized from the spot 26.03.99. Inquest Panchnama 26.03.99. :4: Cause of death certificate 18.3.99. Panchnama of yellow metal 27.03.99. Panchnama of production of agreement 29.03.99. Letters to C.A. Accused admitted documents from Sr. Nos. 1 to 4, 7, 8 and 10. Enquest panchnama - Exhibit 18 is admitted by the accused as stated above and it shows that the information was given by one Kashinath Gotiram Chaudhari, residing at Kausa, Mumbra, that parts of human body were there in his field. Panchnama was accordingly prepared. Right hand of a human body with five fingers and nails intact broken from ankle, then the palm of the left hand with nails intact, one human left leg from below the knee with nails intact, then one human right leg below the knee nails intact and there is a block spot on the thumb, then four human bones and then human cage, the panchnama was prepared and these parts of the human body were seized and then sent to Civil Hospital. :5: 5. At the same time and same place i.e. at the distance of 30 feet from where the human parts were found as above, certain clothes were recovered which include saree, peticoat, blouse, nicker, brassier and one old gunny bag. Panchnama was also made, these articles were seized and sealed. It is also admitted by the accused at Exhibit 19. 6. Thereafter, before the missing complaint was lodged on 26.3.1999, one Mohamed Ahmed Shaikh, Cleaner or sweeper and residing in Basera Building, at Rashid Compound, Kausa, Mumbra, told the police that there was a choke up of the drainage pipelines in Aziza Terrace Building, Flat Nos. 101, 201, 301 and 401. Residents made complaint in that regard and therefore when he was cleaning the drainage pipeline 2- 3 kgs. of flesh was found. Panchnama of this incident was prepared vide Exhibit 20 and the flesh was seized and sealed. 7. The aforesaid facts were necessary to be given at this stage because even though the FIR about missing of Raziya came to be filed on 26.3.1999, these recoveries made earlier are relied :6: upon by the prosecution to prove that all these bones and flesh was of the body of the Raziya. 8. FIR as stated above was lodged by P.W. 10 Khajat Hussain Shaikh. It is necessary to mention here that before lodging this FIR, the bones including hand and feet recovered by the police, as stated earlier, were shown to her and she identified that they were of her daughter Raziya from the black mark on the left foot thumb. She also identified the clothes of Raziya which were shown to her i.e. saree, peticoat, blouse and brassier. 9. It is in this background that FIR has been lodged at Exhibit 56 wherein it is alleged by P.W. 10 that it was the accused who in order to overcome the pressure exerted upon her by Raziya for entering into marriage with her, after she became pregnant from him that he killed her and destroyed her body. 10. After this FIR was lodged, then police machinery set into motion. The accused was arrested and then at his instance the spot of the offence was seen, panchnama was made. Spot was the house in possession of the accused i.e. room No. 401 from :7: where incriminating articles were seized. Then accused also led the police party to the drainage in the compound of the building from where head and portion of the waist of Raziya was recovered. Statement of witnesses came to be recorded. All these incriminating articles were sent to Chemical Analyser for opinion and after getting the C.A. report, the charge sheet was filed. 11. Prosecution in all examined 11 witnesses to prove its case. The defence of the accused was of total denial. The trial court came to the conclusion that the accused is guilty of the offences charged and accordingly the accused was convicted and hence this Appeal. 12. Mr. Makasare firstly contended that the charge framed by the trial court against the accused is a composite charge of both the offences under Section 302 and 201 and therefore it is defective charge-sheet. At the outset, it has to be stated that both the charges are separate and they are absolutely clear covering the ingredients of Section 302 and 201 and though they are covered in one paragraph they are separate and distinct charges and :8: no prejudice of any kind is caused to the accused on that count, therefore, this argument is required to be rejected. 13. Mr. Makasare then raised number of other contentions. Firstly, according to him, even though deceased Raziya was missing from 14.3.1999 missing complaint / report came to be lodged by her mother on 26.3.1999, therefore there was a delay of 12 days, for which according to him there was no plausible or satisfactory explanation. Secondly, according to him, there was no evidence that deceased Raziya had become pregnant from the accused. In the entire discovery of bones and flesh and the parts of body of Raziya no foetus was found. Thirdly, according to him there was no evidence to hold that Raziya was strangulated by the accused or strangulated before her death. Then according to him, there is no medical evidence to show that the injuries found on the body of Raziya (body whatever flesh and pieces were found separately) were anti-mortem, that even the prosecution has not been able to prove that the parts of the body were found in the field the flesh that was found and the body was human flesh or human parts or even they are of :9: Raziya or they are of the same person. In short, according to Mr. Makasare, there is no proof at all whatsoever that flesh and head and other parts were of Raziya, (hereinafter referred to as "the body of Raziya") and therefore according to him if that part of the prosecution case is not at all proved, the conviction of the accused was liable to be set aside. 14. Regarding story of the prosecution that Raziya was pregnant from the accused and which the prosecution has tried to prove through the evidence of P.W. 7 Hirabai Laxman Talwar, Mr. Makasare contended that there was no occasion or reason for Raziya to disclose to Hirabai that she was pregnant because Hirabai was neither from her village nor related to her nor was the close associate of deceased Raziya and therefore if this evidence goes away then there is nothing to show that deceased Raziya had ever complaint to anyone that she was pregnant from the accused. Mr. Makasare also contended that if mother of Raziya was living with Raziya then there was no reason for Raziya not to disclose such an important fact of becoming pregnant to her mother. :10: 15. Further it was contended by Mr. Makasare that till this date the prosecution has not been able to give the cause of death of Raziya. Regarding identity of the body also according to him there was no evidence and the evidence of the prosecution about recoveries at the instance of the accused was also not trustworhty; that there were recoveries at the instance of the accused after one another and therefore that created serious doubt about the trustworthiness of the recovery. 16. Regarding report of the C.A also and the other evidence also, Mr. Makasare raised serious objections. 17. On the other hand, the learned APP contended that there was no delay on the part of P.W. 10 in lodging the missing report because at that time she was at her native place having gone there to attend Ramzan. Evidence of mother P.W. 10 is therefore most natural, she had made enquiries at different places and then after coming to Mumbra, she identified the body i.e. foot of the right leg where a black spot was there to be that of Raziya. :11: The learned APP also contended that it may be that doctors have not been able to positively assert that the parts of the body and flesh found at the different places were of the same person but considering the discovery of the head at the instance of the accused and discovery of other parts of the human body, there was nothing wrong to conclude that all those were parts of the body of Raziya. 18. Regarding the evidence of Hirabai, she contended that Hirabai had no reason to falsely implead the accused, she was residing with Raziya in the same room as stated by Hirabai herself and P.W. 10 mother of Raziya, and, therefore, it was natural for Raziya to disclose her about her being pregnant from the accused. 19. Learned APP contended that it may be no foetus was found anywhere, but considering the fact that Raziya at the date of her death was pregnant by two months or maximum three months, the foetus would be very small negligible portion which could have been destroyed by the accused in his own way without anybody knowing about the same. He contended that :12: there may not be an evidence of strangulation of Raziya by the accused but the spot panchnama of the house of the accused in room No. 401 proves that the murder of Raziya was committed in the house of the accused i.e. room No.401. She further contended that discovery of all the incriminating articles at the instance of the accused including the head of Raziya, weapon of assault, blood stained clothes, prove the case of the prosecution beyond doubt. She also contended that accused on the one hand was teaching kuran to Raziya and on the other hand she became pregnant from him, and, therefore, it was a strong motive for the accused to kill and eliminate Raziya and in order to save his skin and name the accused butchered her and severed all the parts of her body and destroyed them at different places, as stated above. 20. Learned APP also contended that all the evidence collected by the prosecution including the report of the C.A. conclusively prove the guilt of the accused and therefore no interference was called for in the judgment. 21. In view of these rival contentions, we have :13: to see whether the appeal is required to be allowed or dismissed. Before adverting to the various submissions made by both the sides, it is necessary to find out what is the evidence of discovery and seizure produced by the prosecution because that plays an important role. 22. P.W. 10 is the mother of Raziya, she has stated that she was residing in Mumbra two and half years before i.e. when the incident took place in Rashida Compound. Deceased Raziya was staying with her so also witness Hirabai. Raziya died three years back. She was doing labour of Bigari during day time and in the evening she used to go to the accused for doing domestic work and also learning Kuran. She also stated that Raziya was unmarried. 23. Then P.W. 10 has stated at that time she was at her native place when her step daughter Rasul told her personally that Raziya was missing and asked her to go to Mumbra. Witness thereafter contacted one Kasim on phone and he also confirmed that Raziya was missing. According to him, Raziya had gone to Lonavala, therefore P.W. 10 went to Lonavala to her sister but Raziya was not there. :14: Therefore, then she went to Kausa, Mumbra, there also she did not find any clues about missing Raziya then she contacted the accused who told her that Raziya was not coming for work for 15 days. Then this witness was advised to lodge the complaint. 24. P.W. 10 further stated that Raziya was living with Hirabai in Mumbra and Hirabai told her that Raziya was pregnant for two months, she was vomiting and she then complained as per Exhibit 56. She was taken to the hospital. The bones of the hand and legs were shown and she found that in the right side leg portion there was a black spot. It was on the finger of the right leg. Then she stated that after the accused was arrested, head was recovered from the drainage chamber. There were ornaments of nose seized which were given to her and then her statement was recorded at Exhibit 57. 25. In the cross examination she has stated that she lived in Karnataka i.e. her mulukh 11 days before Raziya disappeared but prior to that she was staying with Raziya. She also denied the suggestion that she left her daughter 10 months before her death because of differences. She denied the :15: suggestion that there was no identification mark on the finger of the leg portion shown to her, and also denied the suggestion that Hirabai did not told her anything about relationship and pregnancy of Raziya from accused. 26. Mr. Makasare, contended that so far as this witness is concerned that she has no personal knowledge about missing of Raziya and there is no explanation why Raziya if she was pregnant by about two months before her missing she did not tell this fact to her mother. 27. We do not find any force in the submissions. We do not know the state of mind of Raziya after she became pregnant. She might have found Hirabai more close in that regard than the mother. P.W. 10 is an illiterate lady and she has given most natural evidence, that is, the efforts to trace Raziya and then lodging report and before that identifying the body parts as that of Raziya. 28. There is no force in the contentions of Mr. Makasare, that there is delay in lodging the missing report. Admittedly, from the evidence of P.W. 10, :16: it is clear that she was not in Mumbra when Raziya was missing. She had gone to her native place at Karnataka 11 days before Raziya was missing and it took some time to come to know of missing of Raziya, then verifying the fact, going to Lonavala and coming to Mumbra and then lodging the missing report. There is therefore no delay in lodging the missing report and accused cannot get any advantage of the same. 29. Next evidence is of Hirabai - P.W. 7. This witness has stated that Raziya was from her village and they were living in one single room. Raziya was working as bigari labourer during day time and in the evening she used to do household work for the accused who is referred to as "Maulana" and then she used to learn Kuran from him and return in the night by 10.00 to 11.00 p.m. 30. Witness P.W. 7 Hirabai has stated that Raziya was pregnant by two months and this fact was told to her by Raziya and also that pregrancy was from accused Maulana. She stated that on one day when she came back Raziya was not there at 1.00 p.m. her sister searched her for 2-3 days. The mother :17: was living in the village, she came 4-5 days afterwards and lodged the complaint. She learnt about the murder. 31. In her cross examination, Hirabai admitted that Raziya was not her relative. Their language was different from Raziya. She was Hindu whereas Raziya was Muslim. 32. At this juncture, it is also necessary to consider the evidence of Jafarnissa P.W. 4. She is residing in Rashid Building, near mosque. According to her accused was Pesh Imam of the Mosque, she was knowing him as he was living near the mosque. She was also knowing deceased Raziya who was killed. According to her Raziya was residing in Aziza Terrace along with Hirabai. She was a casual labourer and was earning by doing domestic work in a house including that of the accused. She has also stated that she was on visiting terms with Raziya and about one and half month before her death Raziya told her that she was pregnant by the accused and that the accused was going to marry her after two months. She stated that on one day she saw people collected on the rear side of Aziza Terrace where :18: Raziya was residing, that was after the death of Raziya. Police and Municipal persons were there. The Municipal employees searched the gutter and from one of the gutters one head of the dead body and from other gutter a waist portion and hair of dead body were found. She saw the head portion and identified that it was of Raziya. 33. Both these witnesses Hirabai and Jafarnissa have stated that Raziya told them about she being pregnant from the accused and that the accused has promised to marry her . Evidence of both these witnesses was criticised by the accused on the ground that both are not related to Raziya and so far as Jafarnissa P.W. 4 is concerned, she was from Madras and Raziya was not from her village and that she had no friendship or direct contact with Raziya. Therefore, according to the accused, Raziya had no reason to disclose to this stranger Jafirnissa about her pregnancy. Advocate for the Accused also urged that if Raziya was residing with her sisters, brother and mother, there was no explanation why Raziya did not told any of them about her pregnancy. 34. We do not find any force in the submissions. :19: Hirabai was residing along with Raziya, therefore, there is nothing unnatural if Raziya told about her pregnancy to Hirabai. Jafirnissa is residing in Rashid Compound and merely because they were not from the same village or that there was no friendship, there was no reason for Raziya not to repose confidence in Jafirnussa. Raziya may have other reasons not to disclose this fact to her mother and her sisters who were her step sisters. Further, both these witnesses Hirabai and Jafarnissa had nothing to gain by making statement against the accused and in favour of the prosecution. Hirabai is a casual labourer and Jafarnissa is a family woman. 35. Evidence of therefore these two witnesses Hirabai and Jafarnissa proves the case of the prosecution that Raziya was pregnant by the accused and that the accused had promised Raziya that he would marry her. 36. In her evidence P. W. 10 mother of Raziya has stated that Raziya was living with Hirabai and Hirabai told her that Raziya was living with the accused and she was pregnant. Hirabai also saw :20: Raziya vomitting. Further, from the evidence of P.W. 10 it is clear that for 15 days before the disappearance of Raziya she was in Karnataka. As rightly argued by the learned APP, the pregnancy of Raziya by that time would be one and half month and she would miss one menses only. Therefore, it might be that Raziya was not certain when P.W. 10 was there that she was pregnant. It may be that after Raziya missed 2 menses periods, she realised that she was pregnant and then she disclosed this fact to Hirabai P.W. 7 and Jafirnissa P.W. 4. Therefore, non disclosure of the fact of pregnancy by Raziya to her mother and its disclosure to Hirabai P.W. 7 and Jafirnissa P.W. 4, cannot be said to be unnatural in the circumstances. 37. By this evidence of Hirabai P.W. 7 and Jafirnissa P.W. 4 and Khajat Hussain P.W. 10 the mother of Raziya, prosecution case is brought to the point of motive that the accused being a married man did not want to marry Raziya and therefore he decided to finish her. 38. The crucial question is whether it was the accused who killed her. In order to prove this :21: fact, the prosecution has relied upon the discoveries made at the instance of the accused. We had also mentioned about certain discoveries made by the Investigating Agency before P.W. 10 lodged report on 26.3.1999 after she came from her native place and after she identified body of Raziya from the block spot on the right leg thumb. 39. P.W. 4 Jafarnissa has also stated on oath that the head was taken out from the gutter behind the Aziza Terrace by the municipal men, she identified the head to be that of Raziya. The fact of taking out head took place according to the prosecution on 26.3.1999 itself. Panchnama in this regard is Exhibit 40 and panch witness Mehrunissa (P.W. 3) has proved this panchnama. She has stated that she was called by Mumbra Police on 26.3.1999 for holding panchnama. Accused was there along with police staff. He made a disclosure statement which was reduced into writing at Exhibit 38. Then accused led the party to Rashid Compound, there was a drainage vehicle of the Municipality. Vehicle was halted at Naka, accused took them to the