IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.03.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.1024 of 2006 1.Nazir Hussain, S/o.Mohammed Nabi. 2.Kuttu @ Javed, S/o.Nabi John. ...Appellants/Accused -vs- State represeted by Inspector of Police R-7, K.K.Nagar Police Station, Chennai. (Cr.No.2266 of 2002) ...Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 25.09.2006 made in S.C.No.507 of 2003 on the file of the learned Additional District Sessions Judge, Fast Track Court No.I, Chennai. For Appellants :: Mr.S.Samuvel Raja Pandian For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT D.MURUGESAN, J. Both the appellants were put on trial as A-1 and A-2 on file of the learned Additional Sessions Judge, Fast Track Court No.I, Cchennai in S.C.No.507 of 2003. By judgment dated 25.09.2006, they were found guilty for the offence under Sections 120(B), 302, 380 and 201 of I.P.C., convicted and sentenced as detailed below:- https://hcservices.ecourts.gov.in/hcservices/ Accused Convicted under Section Sentenced under Section A1 U/s. 120(B) of I.P.C. Imprisonment for life and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 1 year U/s.302 of I.P.C. Imprisonment for life and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 1 year U/s.380 of I.P.C. Rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for two months U/s.201 of I.P.C. Rigorous imprisonment for 7 years and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 1 year A2 U/s. 120(B) of I.P.C. Imprisonment for life and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 1 year U/s.302 of I.P.C. Imprisonment for life and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 1 year U/s.380 of I.P.C. Rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for two months U/s.201 r/w 34 of I.P.C. Rigorous imprisonment for 7 years and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 1 year. 2. The appellants (hereinafter will be referred to as the accused with the rank as arraigned before the trial court) for the sake of convenience in this appeal. 3. The case of the prosecution is as follows:- The deceased Riaz Ahmed was doing the business of buying and selling of old papers at Bhojapur, Uttarpradesh. In that business connection, he also knew A-1 by name Nazir Hussain. In their business transaction, the deceased had to owe some amount to A-1. As the said amount has not https://hcservices.ecourts.gov.in/hcservices/ been paid, A-1 asked the deceased to come down to Chennai with a sum of Rs.80,000/- so that, they can purchase the old papers and transport the same to Uttarpradesh for resale and make profit. Believing the said words, the deceased came down from Bhojapur to Chennai on 17.10.2002 by train. He was received by A-1 along with A-2, his assistant in the railway station at Chennai and thereafter, he was taken to the place, where the accused was running his workshop. A-1 made the deceased to stay at the upstairs and thereafter administered him milk mixed with attivan sleeping pills and after the deceased became unconscious, A-2 hold the legs of the deceased and A-1 pressed the neck of the deceased and murdered him. Both the accused had stolen a sum of Rs.80,000/- from the deceased and in order to conceal the offence of murder, both the accused chopped the dead body of the deceased into pieces and packed the same in three bags viz., head and hands in one gunny bag, trunk in the second gunny bag and legs in a third gunny bag. They transported the severed body of the deceased in a motor cycle bearing TN 22 AN -0150 and threw away the bag containing trunk of the deceased in a dumping yard near Kasi Theatre, K.K.Nagar, Chennai, threw the second gunny bag containing legs of the deceased near the river at Kallattru bridge, Guindy, Chennai and threw the third gunny bag in an isolated place near Guindy Race Course Road. Thereafter, A-1 gave a sum of Rs.7,500/- to A-2 and sent him to Delhi on 20.10.2002. On the same date at about 9.00 a.m. A-1 took the gunny bag containing the head and hands of the deceased, put the same near Velachery lake, poured petrol and set fire on the same in order to conceal the offence of murder. 4. P.W.13 an employee of a company went to a tea shop on 19.10.2002 and when he crossed Kallattru bridge, he found a gunny bag and on opening the same, he found two legs of a male. Thereafter, he went to J-3, Guindy Police Station and lodged the complaint, Ex.P.4 to P.W.31, the Inspector of Police who registered the case in Cr.No. 1631 of 2202 under Section 174 of Cr.P.C., prepared printed F.I.R., Ex.P.36. At about 7.30 a.m. he visted the place where the gunny bag was found, prepared observation mahazar, Ex.P.5, drew rough sketch, Ex.P.6 in the presence of attesting witnesses P.W.14 and another. Then, he held inquest on the legs in the presence of the panchayatars, prepared inquest report, Ex.P.37, recovered blood stained khaki coloured polythene paper bag,M.O.6 which was used for covering the legs and also a gunny bag,M.O.1. In continuation of his investigation, he examined some witnesses. 5. In the mean time, P.W.1, a resident of AB481, 5th Sector, 24th street, K.k.Nagar and civil contractor by profession on 20.10.2002, went around 8.00 a.m., to place certain orders with A.K.R.Hardwares near Kasi Theatre and after placing orders, when he was going on his two wheeler, M-80 motor cycle at about 8.30 a.m., he saw a crowd near the Garden Wines and when he went there along with one Gopal of A.K.R. Hardwares and yet another, he found a gunny bag and on opening the gunny bag, he found a trunk of a person belonged to Muslim community. Thereafter, he went to K-7, K.K.Nagar Police Station and https://hcservices.ecourts.gov.in/hcservices/ lodged the complaint,Ex.P.1 to P.W.32, the Inspector of Police, who in turn registered the case in Cr.No.2266 of 2002 for the offence under Section 302 of I.P.C. and prepared the printed F.I.R., Ex.P.38. Thereafter, he visited the place where the gunny bag was found lying, prepared observation mahazar, Ex.P.39, drew rough sketch, Ex.P.47 in the presence of witnesses. He made photographs of trunk to be taken with the help of P.W.15. Photographs (7 series) is Ex.P.7 and Negative (5 series) is Ex.P.8. Then he recovered the plastic paper,M.O.1; plastic bag,M.O.2 (2 series) and gunny bag,M.O.3 used for packing the trunk,under the cover of mahazar,Ex.P.40 in the presence of the attesting witness. P.W.32 sent the same through the Head Constable, P.W.22 to Forensic Science Department through court along with a letter for chemical analysis. Thereafter, P.W.32 held inquest on the trunk in the presence of the panchayatars, prepared inquest report, Ex.P.41. Thereafter, he summoned for scientific expert and also for sniffer dog. He also made photographs of the gunny bag and trunk to be taken. Then he sent the trunk of the male to the Government Royapettah Hospital along with a letter, Ex.P.42 requesting for postmortem. Thereafter, he was waiting for tip-off in regard to trunk on the pretext that some clues may come to light and he continued to investigate the matter. On 22.10.2002 he made a request for taking D.N.A. Test and Finger Print through court. Photographs viewing the trunk and lower limbs and their negatives taken by P.W.15 are M.O.7 to M.O.10. 6. P.W.32, on 23.10.2002 made photographs to be taken on the trunk and lower limbs and after reconstructing the severed portions of the body at the hospital with the assistance of the Doctor, P.W.24 through the photographer. 7. P.W.24 at the request of P.W.32 under Ex.P.14 through P.W.26 Head constable and Upon identification by the Head Constable on 23.10.2002 conducted autopsy on the trunk. He found the following features on the trunk:- Injuries 1.Cut injury at the level of lower third of neck measuring 14.5 x 13 c.m. separating the head and upper 2/3rdof neck from the torso. The head and upper 2/3rd of neck could not be made out. The amputation is seen over the front at the level between 2nd and 3rd tracheal ring and over the back at the level of C5 and C6 vertebra. The circumference of the wound measures 43 c.m. The margin of the wound appear clean cut and pale. The soft tissues are seen severed and bulge above the cut surface and covered with mud particles. 2.Cut injury 18 x 10 c.m. involving the right axilla (upper part of right humerus) with amputation of the right upper limb (beyond the injury). The soft tissues are seen severed and the would margin is https://hcservices.ecourts.gov.in/hcservices/ clean cut. The right humerus is seen severed at the level of the upper end of humerus. The circumference of the wound measures 32.5 c.m. The soft tissues appear pale and is seen bulging through the cut surface and is covered with mud particles. 3.Cut injury 16 x 11 c.m. involving the left axilla and upper end of left humerus with amputation of left upper limb beyond the cut injury. The soft tissues are seen severed. Margins of the wound is seen clean cut. And the left humerus is seen severed at the level of the upper part of left humerus. The portions of left and right upper limb beyond the cut injury could not be made out. The circumference of the wound measures 33 c.m. The soft tissues appear pale and bulge through the cut surface and is covered with mud particles. 4.Cut injury 49 x 14 c.m. x cavity deep involving the lower 3rd of abdomen exposing the abdominal contents. The margins are clean cut. The soft tissues of the abdominal wall are seen severed and appear pale and seen covered with mud particles. 5.Oblique cut injury 23 x 17 c.m. seen at the level of the left groin and hip/ lower part of left side of torso amputating the left lower extremity beyond that level. The skin and soft tissues are seen severed exposing the cavity of left hip joint and the surrounding soft tissues. The circumference of the wound measures 58.9 c.m. The exposed soft tissues are pale and bulge through the cut surface and covered with mud particles. 6.Cut injury 24 x 16 c.m. at the level of right groin and right hip amputating the right lower extremity beyound that level. The skin and soft tissues are seen clean cut exposing the cavity of right hip joint and abdomen and the surrounding soft tissues. The circumference of the wound measures 60 c.m. The exposed soft tissues bulge above the cut surface and are pale and covered with mud particles. On dissection:- Lumen of trachea and good pipe (Oesophagus) contain mud particles. Thoracic cage : In tact; Heart; Normal https://hcservices.ecourts.gov.in/hcservices/ in size and flabby. Chambers empty; Lungs- decomposed; Stomach - empty. Mucosa-Decomposed; intestines and liver - decomposed; spleen and kidneys - decomposed; bladder - empty. Pelvis - intact. Spinal column - seen severed at the level between C5 and C6 cervical vertibra. He opined that the injuries appeared to be postmortem in nature and issued the postmortem certificate, Ex.P.15 to that effect. Ex.P.16 is the Chemical Report. 8. Further, on the same day at about 1.00 noon, P.W.24 at the request of P.W.31 under Ex.P.17 through Head constable and Upon identification by the Head Constable (HC 6141), he conducted autopsy on lower limbs. He found the following features: Injuries • Amputated right and left lower limbs seen in a state of early decomposition. (peeling of cuticle, greenish discolouration). • Right Lower Limb: The right lower limb measures 82 c.m. in length along the inner aspect and 76 c.m. length along the outer aspect. The limb is seen obliquely amputated from the rest of the body. The amputated end measures 24 x 17.8 c.m. antero-posteriorly and 59.5 c.m. in circumference. The skin and soft tissues are seen clean cut. The soft tissues are pale, covered with mud particles and seen bulging above the cut surface. The head of the femur is seen projecting out intact exposing the severed ligaments and surrounding soft tissues. • Left Lower Limb: The left lower limb measures 81 c.m. in length along the inner aspect and 74 c.m. along outer aspect. The limb is seen obliquely amputated from rest of the body. The amputated end measures 24.5 x 17 c.m. antero posteriorly and 60.8 c.m. in circumference. The skin and soft tissues are seen clean cut. The soft tissues are pale, covered with mud particles and seen bulging above the cut surface. The head of the femur is seen projecting out intact attached with severed ligaments and soft tissues. He opined that the injures on the lower limbs are postmortem in nature. He would further opine that the lower limbs appear to belong the same body and on anatomic reconstruction he found that the lower https://hcservices.ecourts.gov.in/hcservices/ limbs appear to belong to the torso. He issued the postmortem certificate, Ex.P.18 to the above effect. 9. In the mean time,P.W.18, the brother of the deceased by name Akil Ahamed of Uttarpradesh complained to the St. Thomas Mount Police that his brother was missing, where he was asked to go to Guindy Police Station as the Guindy Police traced out lower limbs. P.W.18 was examined by the Inspector of Police, P.W.31 at Guindy Police Station. In the mean time, on information P.W.32 visited Guindy Police Station where he recorded the statement of P.W.18 with the assistance of a Hindi translator, P.W.19 from Hindi Prachar Sabha. On the basis of the statement of P.W.18, P.W.32 rushed to the workshop of A.1 at Nandambakkam to see that the workshop was locked where he examined some witnesses. On the reliable tip-off, he came to know that the deceased was lastly seen with the company of A-1 & A-2 in Nandambakkam locality. 10. While the investigation was going on so here at Chennai, P.W.32 rushed to Moradabad, Utrapradesh and visited Bojapur Police Station. He came to know that there was a complaint lodged by P.W.18 alleging that his brother Riaz Ahmed was went on missing. He collected the General Diary Copy, Ex.P.45 and copy of complaint, Ex.P.44 from the Police Constable at Bojapur Police Station. Thereafter, he inquired the whereabouts of A-1 and he was given to understand that A- 1 had criminal cases in his credit involving various offences including one under the Arms Act. P.W.32 went on searching A-1 & A-2 and as his attempts failed, he returned to Chennai. Here, P.W.32 was on look out for A-1 & A-2. In the mean time, at the request of P.W.32, the father and brother of the deceased were subjected to D.N.A. Test. The Viscera of the deceased were sent through Head Constable. 11. On 9.11.2002, based on the information that A-1 was arrested in Uttarpradesh in connection with a case in Cr.No.3620 of 2002 of Kalseyith Police station, P.W.32 rushed to Uttarpradesh and on P.T.Warrant, he brought A-1 to Chennai on 19.11.2002 by train and on arrival at Chennai on 21.11.2002 he subjected the deceased to judicial remand after being produced him before the XXIII Metropolitan Magistrate. Thereafter, P.W.32 took A-1 under police custody from 21.11.2002 to 04.12.2002. At about 8.00 a.m. On 22.11.2002, he recorded the voluntary confessional statement given by A-1 in Hindi as well into Tamil after translating the same with the assistance, P.W.29 in the presence of attesting witnesses, P.W.30 and another. Pursuant to the admissible portion of confession, Ex.P.24, the Inspector of Police, P.W.32 visited the workshop of A-1 situate at No.6/9, Harikrishna Road, Nandambakkam on 22.11.2002 and prepared the observation mahazar, Ex.P.27 and drew rough sketch, Ex.P.46 in the presence of witnesses. The confessional statement given by A-1 in Hindi is Ex.P.25. He also seized, iron bondu, M.O.7; stainless steel tumblers, M.O.8(2 series); a big stainless steel glass, M.O.9; Aluminum pan M.O.10; and a knife with wooden handle, M.O.11 under the https://hcservices.ecourts.gov.in/hcservices/ cover of mahazar , Ex.P.26 in the presence of the very same attesting witnesses. P.W.32 made photographs viewing the scene of occurrence to be taken with the help of P.W.28. Negative (series) is Ex.P.20 and photographs (series) is Ex.P.21. Thereafter, A-1 led P.W.32 to Nandambakkm Military Ground, where he produced Knife, M.O.5 and another knife M.O.6 and thereafter, A-1 led to his house, where P.W.32 recovered pant, M.O.12; full sleeve shirt,M.O.13; a pair of brown colour shoes, M.O.14; resin bag, M.O.15; telephone receipt dated 9.10.2002, M.O.16; another receipt dated 14.10.2002, M.O.17; Identity Card, M.O.12; Voters Identity Card, M.O.13 and the motor cycle in which the severed body of the deceased were transported, bearing Regn.No.TN 22 N 0150, M.O.18 under the cover of the mahazar, Ex.P.29 in the presence of the attesting witnesses,P.W.30 and another. 12. In continuation of his investigation, at about 5.40 p.m. on 23.11.2002 P.W.32 went to Triplicane led by the accused to the shop bearing D.No.22/43, Kuppumuthu Street. pursuant to the voluntary confession statement of A-1, he recovered a Bill, Ex.P.2 at the instance of the accused portraying the details that the accused was dealing with old paper business and consigned a load to Moradabad under the cover of the mahazar, Ex.P.30 in the presence of the very same attesting witnesses. Likewise, on 22.11.2002 at about 6.50 p.m., he recovered another copy of bill, Ex.P.11 under the cover of the mahazar from the shop owned by P.W.16, Muthusamy which situated at D.No. 45, Ramanuja Iyer Street, Old Washermenpet, Chennai. Thereafter, at about 7.15 p.m., he recovered another receipt dated 17.02.2002, Ex.P.3 at the instance of the accused under the cover of the mahazar, Ex.P.32 from the shop viz., M/s.A.N.Transport Corporation, bearing No.329, 3rd floor, Thambu Chetty Street, Chennai portraying the details of consignment of old paper sent by A-1. Thereafter, at about 22.11.2002, he recovered receipts, Ex.P.34 under the cover of the mahazar Ex.P.33 from the shop bearing D.No.202, Pidariar Koil Street, Muthialpet. 13. In continuation of his investigation, P.W.32 also examined P.W.9, who is running a pharmacy shop identified by A-1 and recorded his statement. Thereafter, at the instance of A-1, P.W.32 examined the witnesses viz., P.W.4, the owner of the gunny bag shop, from whose shop A-1 purchased the plastic bags in order to dispose the severed pieces of the dead body, P.W.3, the owner of the shop from whose shop A-1 purchased the plastic cover and also P.W.10, who is having a slaughtering house at the street behind the house of A-1 from whom A-1 took M.O.5 Knife. Thereafter, on 30.11.2002, P.W.23 Head Constable at the instruction of P.W.32 handed over the trunk and lower limbs of the deceased to the kin of the deceased at Government Royapettah Hosptial at Chennai. 14. P.W.32, Inspector of Police went on search of A-2. At about 5.00 p.m., on 2.12.2002 upon identification by A-1, he arrested A-2 in front of the Masque at Butt Road, St. Thomas Mount and recorded his voluntary confession in Hindi with the assistance of P.W.29 in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.30 and another and translated the same into Tamil and the admissible portion therein is Ex.P.22. The Hindi version of the confessional statement of A-2 is Ex.P23. Pursuant to the same, P.W.32 recovered brown colour pant and full sleeve shirt of the deceased from A-2 under the cover of Ex.P.35 mahazar. After the purpose of police custody of A-1 and A-2 was over, P.W.32, on 03.12.2002 produced A-1 before the Judicial Magistrate for judicial remand and A-1 on 04.12.2002. On 18.12.2002, P.W.32 brought the mother of the deceased viz., P.W.20 from Uttarpradesh and subjected her for D.N.A. Test through the Head Constable, P.W.26 and examined her with the assistance of P.W.29. In the mean time, on 04.04.2003, the Deputy Commissioner of Police, Ashok Nagar at the instance of P.W.32 and considering both the cases registered in Cr.No.1631 of 2002 of Guindy Police Station and Cr.No.2266 of 2002 of K.K.Nagar are connected with each other, passed an order for combined investigation. P.W.32 after complying with the other routine formalities took up further investigation, after having obtained postmortem certificate from the Doctor, P.W.24 and D.N.A. Report, Ex.P.19 from P.W.25, and upon completion of his investigation, he laid final report on 23.07.2003 as against both the accused for the offence punishable under sections 120 (B), 302, 380 and 201 r/w 34 of I.P.C. before the XXIII Metropolitan Magistrate at Saidapet. 15.In order to substantiate the charges, prosecution examined 32 witnesses and marked 50 exhibits and produced 20 material objects. In addition to the above, 3 documents marked as court side documents. 16. When both A-1 and A-2 were questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against them, they totally denied the same as false. On behalf of the defence, no document was marked and no witness was examined. However, learned trial Judge found the accused guilty of the offence, convicted and sentenced him as stated earlier. 17. Mr.S.Samuevel Raja Pandian, learned counsel appearing for the appellant had extensively taken us to the entire evidence. (i) Firstly the learned counsel would submit that as it is a case of circumstantial evidence, the burden on the prosecution to prove the motive is heavy and there is absolutely no evidence to show that both the deceased and A-1 were partners in the business and because of the deceased some financial loss had occurred in the business and therefore, A-1 had planned to kill the deceased. However, there is no evidence to show that the deceased came down to Chennai only at the instance of A-1 and that too with a sum of Rs.80,000/- and both the accused had taken him to the workshop belonged to A-1 and committed the murder. In the absence of motive, especially in the case based on circumstantial evidence, the entire prosecution case must be disbelieved. https://hcservices.ecourts.gov.in/hcservices/ (ii)Secondly,the learned counsel would submit that as the police had recovered only legs packed in a gunny bag at one place, trunk packed in another gunny bag at another place and there was no recovery of the severed head and hands, as they were burnt in a secluded place, it is highly improbable for the witnesses particularly P.W.18, the younger brother of the deceased to identify the deceased only with the severed legs and the trunk. Equally, the identification of the body by P.Ws.19 and 20 viz., the father and mother of the deceased respectively is also highly improbable. In the absence of the identification of the body as that of the deceased, the trial Court ought not to have convicted the accused persons. (iii)Thirdly, the learned counsel would submit the evidence of P.Ws.3 and 4 speaking about the fact that the A-1 having plastic bag and gunny bags is highly artificial as admittedly both the witnesses have stated that such plastic bags as well gunny bags can be purchased from any shop. Likewise, the evidence of P.W.9, the medical shop owner cannot be believed as he himself has stated that A-1 purchased the attivan tablets on 17.10.2002 and he has not produced any bill for the same. In the absence of any evidence that A-1 had purchased attivan tablets, excepting the evidence of P.W.9, it cannot be held that the prosecution has established the fact that A-1 had purchased the sleeping pills, that too to give to the deceased before murdering him. Insofar as the evidence of P.W.10 to the effect that A-1 had purchased two knives from him on 17.10.2002 is also highly unbelievable. In any event, P.W.10 himself had admitted in his evidence that there was a litigation between his father and A-1 and the case was under trial for over a period of 5 years prior to the date of occurrence and he also admitted that from the date of