R.T. No.2 of 2019 & Crl.A. No.

751 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON 04.02.2021
DELIVERED ON 17.03.2021

CORAM:

THE HON’BLE MR. JUSTICE P.N. PRAKASH

and
THE HON’BLE MR. JUSTICE V. SIVAGNANAM

R.T. No.2 of 2019 and Crl.A. No.751 of 2019

R.T. No.2 of 2019:

Yaser Arafath Accused

vs.
The State represented by
The Inspector of Police
B-4, Race Course Road Police Station
Coimbatore
Coimbatore District Complainant

Crl.A. No.751 of 2019:

Yaser Arafath Appellant

vs.
The State represented by
The Inspector of Police
B-4, Race Course Road Police Station
Coimbatore
Coimbatore District Respondent
R.T. No.2 of 2019:

Referred Trial under Section 366 Cr.P.C. on the judgment and order dated
26.09.2019 passed in S.C. No.37 of 2016 on the file of the IV Additional District
and Sessions Court, Coimbatore.

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Crl. A. No.751 of 2019:

Criminal Appeal filed under Section 374(2) Cr.P.C. seeking to set aside the
judgment of conviction and sentence dated 26.09.2019 passed in S.C. No.37 of
2016 on the file of the IV Additional District and Sessions Court, Coimbatore.
For appellant Mr.V. Karthic, Sr. Counsel
in Crl.Appeal for Mr. N. Saravanan

For respondent/ Mr. K. Prabakar

State in Crl.Appeal Addl. Public Prosecutor

COMMON JUDGMENT
P.N. PRAKASH, J.

The prosecution story runs thus:

1.1 The epicenter of the offence is Apartment No.C-002, Ground Floor in

Raheja Centre in Coimbatore.

1.2 At the outset, it may be necessary to put the records straight by noting

that Raheja Centre has been typed in the depositions in Tamil with weird spellings

as the Tamil language does not have the letter “ha”. Both sides agreed sans demur

that the housing complex bears the name Raheja Centre.

1.3 Raheja Centre has 57 residential units and is a gated community. As

all gated communities are, it has its own security and maintenance personnel.

1.4 The deceased in this case is one Saroja, aged 54 years. She was

living with her husband Natarajan (not examined), her son Mahendra Kumar

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(P.W.4) and her daughter-in-law Periya Nayagi @ Amudha (not examined) in

Apartment No.C-005 which is right opposite Apartment No.C-002.

1.5 Saroja was a homemaker. Her husband Natarajan, her son Mahendra

Kumar (P.W.4) and her daughter-in-law Periya Nayagi @ Amudha were all

employed. So, Saroja used to remain alone at home when her other family

members are away for their work.

1.6 Apartment No.C-002 was owned by one Balaji, who, in turn, had

given it to Dream Home Solutions run by one Visweswaran (P.W.1) for using it as

a service apartment. As is known, a service apartment is a well-furnished

accommodation given to persons for brief stays.

1.7 Karunanidhi (P.W.3) and Paramasivam (P.W.27) were working in

Dream Home Solutions under Visweswaran (P.W.1).

1.8 The appellant hails from Tirunelveli and came to Coimbatore in

search of employment. He took Apartment No.C-002 from Dream Home

Solutions on 07.08.2012 on a monthly rent of Rs.30,000/-.

1.9 On 13.02.2013, when Natarajan, Mahendra Kumar (P.W.4) and

Periya Nayagi @ Amudha returned home from work, they did not find Saroja.

They were under the impression that Saroja would have gone to one of their

relatives’ house and therefore, they went about looking out for her. Since they

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were unable to locate Saroja, they felt something fishy and so, on 16.02.2013,

Natarajan gave a police complaint (Ex.P.46), based on which, a case in B4- Race

Course P.S. Cr.No.366 of 2013 was registered on 16.02.2013 for “woman

missing”. In the said complaint, Natarajan gave the descriptions of the ornaments

and the colour of the saree that were worn by Saroja.

1.10 The said complaint and the FIR reached the jurisdictional Magistrate

on 18.02.2013 at 10.00 a.m. While the family members of Saroja were on the look

out for her, a foul smell started emanating from Apartment No.C-002 from

19.02.2013. Hence, the residents started complaining to Raman (P.W.2), Manager

of Raheja Centre.

1.11 Therefore, on 20.02.2013, Karunanidhi (P.W.3) and Paramasivam

(P.W.27) went to Apartment No.C-002 and sprayed insecticides inside the

apartment thinking that it would quell the foul smell, during which time, the

appellant was present. However, that did not abate the foul smell and so, on

21.02.2013, on the information given by Raman (P.W.2), Visweswaran (P.W.1)

himself came to Apartment No. C-002 along with Karunanidhi (P.W.3). Raman

(P.W.2), Manager of Raheja Centre, who has his office in the complex itself, was

also present. Together, when they rang the calling bell of Apartment No.C-002,

there was no response from inside. Visweswaran (P.W.1) tried to open the front

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door with the spare key which he had, but, in vain. Hence, the trio went to the rear

side of the apartment as it had a door. They found the rear door open and hence,

entered the apartment and felt the stench coming out of two VIP suitcases they

found there. When they opened the two VIP suitcases, they found them to contain

dismembered parts of a human body.

1.12 Visweswaran (P.W.1) went to the police station and gave a complaint

(Ex.P.1), based on which, Anandha Jothi (P.W.23), Sub Inspector of Police,

registered a case in B4, Race Course P.S. Cr.No.402 of 2013 on 21.02.2013 under

Section 302 IPC and prepared the printed FIR (Ex.P.33), which reached the

jurisdictional Magistrate at 7 p.m. on the same day, as could be seen from the

endorsement thereon.

1.13 Investigation of the case was taken over by Chandrasekar (P.W.28),

Inspector of Police, who went to Apartment No.C-002 at 2.00 p.m. and prepared

the rough sketch (Ex.P.39). He also prepared the observation mahazar (Ex.P.3) in

the presence of witnesses Viswamohan (P.W.7) and Mohanavel (not examined).

1.14 From the place of occurrence, he seized a red colour VIP suitcase

(M.O.1) from the front bedroom on the northern side under the cover of mahazar

(Ex.P.4), which contained the following:

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1 Nose ring (M.O.13)

2 Toe rings (2 nos.) (M.O.14)
3 Red and rose colour chiffon saree (M.O.44)
4 Blouse (M.O.45)
5 Small quantity of cement mixture (M.O.15)
6 Head, severed arms, leg portions beneath knee --

1.15 From the bedroom on the southern side, Chandrasekar (P.W.28)

seized another red colour VIP suitcase (M.O.2) under cover of mahazar (Ex.P.5),

which contained the trunk of a human body.

1.16 In the meanwhile, the family members of Saroja, including Mahendra

Kumar (P.W.4), who were living in the opposite apartment, viz., Apartment No.C-

005, came to Apartment No.C-002 and identified the human body which was in

bits and pieces, as that of Saroja.

1.17 From 15.15 hrs. to 17.45 hrs., Chandrasekar (P.W.28) conducted

inquest over the body parts that were recovered from the VIP suitcase (M.O.1) and

the first inquest report is Ex.P.40. From 18.15 hrs. to 19.45 hrs., he conducted

inquest over the trunk of the body that was recovered from the VIP suitcase

(M.O.2) and the second inquest report is Ex.P.41. Thereafter, he assembled all the

dismembered parts that were found in the both the suitcases (M.Os.1 and 2) and

conducted a third inquest from 20.15 hrs. to 22.00 hrs. and the third inquest report

is Ex.P.42. It is pertinent to state here that during the inquests, the police observed

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that the thighs were missing. Chandrasekar (P.W.28) then dispatched the body

parts to the Government Hospital, Coimbatore, for post-mortem where

Dr.Kulandaivelu (P.W.15) conducted post-mortem and issued the post-mortem

certificate (Ex.P.15).

1.18 Dr. Kulandaivelu (P.W.15) noticed the following ante-mortem

injuries in the neck of the deceased:

“On dissection of available upper part of the neck, the ante mortem
reddish contusion measuring 3 x 2 cm noted over left side neck at the level
of superior cornu of thyroid cartilage, which was found fractured. Another
ante mortem reddish contusion 4 x 2 cm. noted over right side neck at the
level of thyroid cartilage. The upper part of thyroid cartilage found
fractured in its middle with surrounding tissue contusion reddish in colour
(ante mortem). Hyoid bone found intact. Skull and dura intact. Brain
found liquefied.

On examination of the neck, the lower part of thyroid cartilage

found fractured in its middle with surrounding tissue contusion reddish in
colour (ante mortem). Ante mortem reddish contusion 4 x 3 cm noted over
right side neck at the level of lower part of thyroid cartilage.”

Rest of the injuries on the body of the deceased were found to be post-mortem in

nature.

1.19 The viscera and vaginal swabs were sent for chemical analysis to the

Tamil Nadu Forensic Science Department and the viscera report (Ex.P.16) states

that no poison was detected in the visceral organs of the deceased. Biology report

(Ex.P.17) states that spermatozoa was not detected in the swabs taken from the

vagina of the deceased. Bones were preserved for DNA profiling.

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1.20 In the post-mortem certificate no.499 of 2013 (Ex.P.15),

Dr.Kulandaivelu (P.W.15) has opined as follows:

“OPINION:

As per the examination of the available parts of the body, the deceased would
appear to have died of asphyxia due to violent ante mortem external
compression of the neck. The time since death could not be calculated due to
arrested decomposed state of the body.”

1.21 Even after the body parts were removed out of the apartment, the foul

smell continued to emanate and this prompted the inmates of the complex to

complain, which made Karunanidhi (P.W.3) alert the police. Therefore, on

27.02.2013, Chandrasekar (P.W.28) once again came to Apartment No.C-002 and

started to search for the place from where the foul smell came. At last, he found

the smell coming from the top of a cupboard in the bedroom on the northern side

and when he started scrapping the cement, he found a pair of thighs kept in a

plastic cover. These parts were recovered and a fourth inquest was conducted in

the presence of panchayatdars from 15 hrs. to 18 hrs. on 27.02.2013 and the fourth

inquest report is Ex.P.43. After the inquest, the pair of thighs was sent to the

Government Medical College and Hospital, Coimbatore, for autopsy, where,

Dr.Jeyasingh (P.W.21) performed autopsy and issued the post-mortem certificate

(Ex.P.32), wherein, he has opined as follows:

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“Both femurs preserved for DNA profiling

Opinion: The examined thighs belong to a part of the body of a female and
they match with the body of a female mentioned in the post-mortem no.499/13
dated 22.02.2013 and Cr.No.402/2013 of B-4 P.S.”

1.22 DNA profiling of Natarajan and Mahendra Kumar (P.W.4) was done

with the DNA extracted from the portions of the body that were recovered on

21.02.2013 and 27.02.2013, by K. Thara (P.W.26), Scientific Officer, under the

supervision of Lakshmi Balasubramaniam, Deputy Director of TNFSL. K.Thara

(P.W.26) issued DNA reports (Exs.P.36 to 38), wherein, it is stated as follows:

“Conclusion:

From the DNA typing results of the above samples, it is found that:

i. The bones in items 1,3,4 and 5 (of ref 2) belong to a same human
female individual.
ii. The person to whom the bones in items 1,3,4 and 5 (of ref 2) belong
was (sic to) the biological mother of Mr. N. Mahendra Kumar.”

1.23 While the investigation was in progress, the police received

intelligence that the appellant was in Visakhapatnam and so, a police team headed

by Chandrasekar (P.W.28) went to Visakhapatnam, requisitioned the help of the

local police and apprehended the appellant on 02.03.2013 at 8.30 a.m. in Hotel

Meghana near Leela Mahal junction in Visakhapatnam.

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1.24 The appellant’s statement was recorded in the presence of one

Ravinder (P.W.13) and one Ramesh Babu (not examined), in which, he gave lots

of information to the police which was hitherto unknown to them. Suffice it to say

that he disclosed to the police that he had assumed the pseudo name Nazir and had

pledged some articles in Mahalakshmi Finance in Coimbatore; he had gone to

Tirunelveli by a car and had pledged some jewels in Muthoot Finance. He further

disclosed the shop where he purchased the two VIP suitcases (M.Os.1 and 2) and

also the place where he had kept certain items.

First seizure:

1.25 From the custody of the appellant, the police seized the following

articles under the cover of mahazar (Ex.P.12) at the time of arrest in

Visakhapatnam:

S.No. Description M.O. No.

1 Laptop M.O. 34
2 Sony Adaptor M.O.35
3 Laptop Bag M.O.36
4 Passport M.O.37
5 PAN Card M.O.38
6 Driving Licence M.O.39
7 Identity Card M.O.40
8 Key of Maruti Car with key chain M.O.41
9 Cash receipts of Hotel Meghana (2 nos). M.O.42
10 R.C. Book of the Maruti car bearing Regn.No.TAR 2006 Ex.P.6

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1.26 The appellant was produced before the Chief Metropolitan

Magistrate, Visakhapatnam along with the confession statement and the seizure

mahazar (Ex.P.12) on 02.03.2013. The Magistrate endorsed on the confession

statement and seizure mahazar and thereafter, issued a transit warrant to remove

the appellant from Visakhapatnam to Coimbatore, to be produced before the

Judicial Magistrate No.III, Coimbatore.

Second seizure:

1.27 Chandrasekar (P.W.28) brought the appellant to Coimbatore and on

the disclosure that had already been made by the appellant at Visakhapatnam, a

Maruti car bearing Regn.No.TAR 2006 (M.O.16) was seized in the parking lot of

Raheja Centre on 04.03.2013 between 8.45 a.m. and 9.15 a.m. in the presence of

witnesses one Magesh Kumar (P.W.12) and Ravi (not examined) under the cover

of mahazar Ex.P.7.

Third Seizure:
1.28 The following items were seized on 04.03.2013 at 10.30 a.m. from

beneath a bush in Palakkad Main Road under the cover of mahazar (Ex.P.8) in the

presence of witnesses Magesh Kumar (P.W.12) and Ravi.

S.No. Description M.O. No.

1 Pair of black slippers M.O.17
2 Pair of silver anklets measuring 28 cms. M.O.12
3 Talisman together with safety pin in yellow colour thread M.O.30
4 Two Gold thalis inscribed with Shiva linga symbol M.O. 7

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5 Thali thread M.O.11

6 Gas lighter M.O.18
7 Iron ladle with cement chips M.O.22
8 Packing tape roll M.O.46
9 Torch light M.O.20
Blue colour frame of hacksaw blade with the marking PYE 801
10 M.O.3
measuring 35 cms.
Hacksaw blade measuring 31 cms. with the marking OLTRA
11 M.O.21
FLEX 10D/24T
12 Blue colour hacksaw blade measuring 31 cms. M.O.4
13 Screw driver measuring 19 cms. M.O.5
14 Knife measuring 18 cms. with saffron colour handle M.O.24
Knife measuring 9 cms. with a wooden handle together with a M.O.26
15
plastic hammer
Plastic rose colour hammer of 10 cms. length and 4 cms. radius
16 M.O.27
with the inscription (Chetak)
17 Chistle measuring 20 cms. length M.O.19
18 Knife of 15 cms. length with brass handle M.O.23
19 Knife of 35 cms. length with iron handle M.O.25
20 Blue colour t-shirt M.O.28
21 Bill bearing no.15715 dt. 16.02.2013 of Roshan 24 D.B.St. M.O.29
A bag with the writings RMKV wedding silk – 88 years of silk M.O.31
22
heritage

Fourth seizure:
1.29 The following items were seized on 04.03.2013 at 12.30 p.m. from

Mahalakshmi Finance on 04.03.2013 under the cover of mahazar (Ex.P.9) in the

presence of witnesses Magesh Kumar (P.W.12) and Ravi.

S.No. Description M.O. No.

1 Gold dollars numbering 8 weighing 11.900 gms. M.O.10
2 2 gold rings together measuring 4.800 gms. M.Os.8 & 9
Carbon copy of pawn ticket no.4915 dated 13.02.2013 of
Mahalakshmi Finance for Rs.8,300/- in the name of Nazir, S/o
3 M.O.33
Hussain, 508 “C” Block, Pioneer Apartments, P.N. Palayam,
Coimbatore
4 Carbon copy of pawn ticket no.4916 dated 13.02.2013 of M.O.32
Mahalakshmi Finance for Rs.20,000/- in the name of Nazir, S/o

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Hussain, 508 “C” Block, Pioneer Apartments, P.N. Palayam,

Coimbatore

Fifth seizure:

1.30 After effecting the aforesaid seizures, the appellant was produced

before the Judicial Magistrate No.III, Coimbatore on 04.03.2013, who remanded

him in judicial custody. Thereafter, once again, police custody of the appellant

was taken on 05.03.2013 and on the showing of the appellant, a godhumai model

gold chain weighing around 54 gms. (M.O.6) was seized from Muthoot Finance in

Tirunelveli under the cover of mahazar (Ex.P.23) in the presence of Manjula

(P.W.22) and Shankaran (not examined) on 06.03.2013. Thereafter, the appellant

was surrendered back in judicial custody and investigation was continued by

Chandrasekar (P.W.28).

1.31 On the directions of the superior officials, the case was transferred to

the file of the Inspector of Police, (Crime), viz., Bala Murali Sundaram (P.W.29),

who examined some witnesses including experts and obtained some reports.

1.32 On his transfer, the investigation was continued by Shiyahul

Haameed (P.W.30), Inspector of Police, who completed the investigation and filed

a final report on 31.03.2014 in the Court of the Judicial Magistrate No.III,

Coimbatore, against the appellant under Sections 302,380 and 201 IPC and the

said case was taken on file as P.R.C. No.7 of 2015.

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1.33 On appearance of the appellant, the provisions of Section 207 Cr.P.C.

were complied with and the case was committed to the Court of Session in

S.C.No.37 of 2016 and was made over to the IV Additional District and Sessions

Court, Coimbatore, for trial.

1.34 The trial Court framed charges under Sections 302, 380 and 201 IPC

against the appellant and when questioned, the appellant pleaded not guilty.

1.35 To prove the charges, the prosecution examined 31 witnesses and

marked 46 exhibits and 46 material objects.

1.36 When the appellant was questioned under Section 313 Cr.P.C. on the

incriminating circumstances appearing against him, he merely denied the same and

did not offer any plausible explanation.

1.37 No witness was examined on the side of the appellant, but, two

exhibits, viz., Ex.D.1, requisition letter given by Chandrasekar (P.W.28) to

Coimbatore Medical College and Ex.D2, Dog Squad report, were marked in the

cross-examination of Chandrasekar (P.W.28).

1.38 After considering the evidence on record and hearing either side, the

trial Court, by judgment and order dated 26.09.2019, convicted and sentenced the

appellant as under:

Provisions under
S.No. Sentence
which convicted

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1 Section 380 IPC 7 years rigorous imprisonment and fine of

2 Section 201 IPC
3 Section 302 IPC
Rs.10,000/-, in default to undergo one year simple
imprisonment
7 years rigorous imprisonment and fine of
Rs.10,000/-, in default to undergo one year simple
imprisonment
Death sentence

The sentences (1) and (2) above were ordered to run concurrently.

1.39 Since the trial Court had awarded death penalty for the offence under

Section 302 IPC, the case was referred to this Court for confirmation under

Section 366 Cr.P.C. The appellant also has filed an appeal in Crl.A. No.751 of

2019 challenging his conviction and sentence.

2 Heard Mr. V. Karthic, learned Senior Counsel representing

Mr.N.Saravanan, learned counsel on record for the appellant and Mr. K. Prabakar,

learned Additional Public Prosecutor appearing for the State.

3 The prosecution story rests on circumstantial evidence. Mr. V.Karthic

placed reliance on the following passage from the celebrated judgment of the

Supreme Court in Hanumant vs. State of Madhya Pradesh1 and submitted that

the evidence in this case should be tested on the anvil of the law propounded in

the said ruling:

“10. In dealing with circumstantial evidence the rules specially

applicable to such evidence must be borne in mind. In such cases there is

1
AIR 1952 SC 343

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always the danger that conjecture or suspicion may take the place of legal
proof and therefore it is right to recall the warning addressed by Baron
Alderson to the jury in Reg v. Hodge [(1838) 2 Lew 227] where he said:

“The mind was apt to take a pleasure in adapting circumstances

to one another, and even in straining them a little, if need be, to
force them to form parts of one connected whole; and the more
ingenious the mind of the individual, the more likely was it,
considering such matters, to overreach and mislead itself, to supply
some little link that is wanting, to take for granted some fact
consistent with its previous theories and necessary to render them
complete.”

It is well to remember that in cases where the evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to be drawn
should in the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so
far complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as to show
that within all human probability the act must have been done by the
accused. In spite of the forceful arguments addressed to us by the learned
Advocate-General on behalf of the State we have not been able to discover
any such evidence either intrinsic within Exhibit P-3-A or outside and we
are constrained to observe that the courts below have just fallen into the
error against which warning was uttered by Baron Alderson in the above
mentioned case.”

One can have no two opinions on the aforesaid proposition of law and therefore,

we now embark upon to scrutinize the evidence on record bearing in mind the

aforesaid passage.

A. Existence of Saroja:

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4 Though the defence has not denied that one Saroja existed and that

she is no more, yet, it is necessary for us to discuss the evidence on this aspect

threadbare. Therefore, we begin from the evidence of Mahendra Kumar (P.W.4).

5 Mahendra Kumar (P.W.4), in his evidence, has stated that he was

living with his parents, Natarajan and Saroja, in Apartment No.C-005 from 2001;

he is married to Periya Nayagi @ Amudha; on 13.02.2013, except his mother

Saroja, all the others had left for work in the morning and his son had gone to

school; around 2 p.m., his father Natarajan returned home and found the door of

their apartment open, but, his mother was not there; in the evening, when his wife

and he returned home, his father told this to him and they all contacted their

relatives in order to find out if Saroja had gone to their house; for the next two

days, they went about in search of Saroja and when they became clueless, they

went to the police station where Natarajan lodged a written complaint, based on

which, Chinnappan (P.W.31), Sub Inspector of Police, registered an FIR in

Cr.No.366 of 2013 on 16.02.2013 for “woman-missing”.

6 At this juncture, it may be necessary to state that Natarajan was not

examined by the prosecution, because, he died on 14.06.2014 i.e., around 16

months after his wife’s death and before the trial began. The fact that Natarajan

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lodged the complaint (Ex.P.46) has been spoken to not only by his son Mahendra

Kumar (P.W.4) but also by Chinnappan (P.W.31), Sub Inspector of Police of B4

Race Course Police Station, who, in his evidence, has stated that on 16.02.2013,

one Natarajan came to the police station at 9.00 a.m. and lodged a written

complaint stating that his wife Saroja, aged 54 years, went missing since

13.02.2013. Chinnappan (P.W.31) has further stated that he received the complaint

and registered a case in Race Course P.S. Cr.No.366 of 2013 for ‘woman missing’

and prepared the printed FIR. The complaint and the printed FIR were marked as

Ex.P.46.

7 A perusal of the complaint and FIR (Ex.P.46) shows that they reached

the jurisdictional Magistrate on 18.02.2013 at 10.00 a.m. itself. A reading of the

complaint in Ex.P.46 that was lodged by Natarajan shows that Saroja was wearing

the following apparel and ornaments:

 Red and rose colour chiffon saree

 Ash colour blouse
 10 sovereigns of Godhumai model chain
 Gold thali chain with gold beads (Fz;Lkzpfs;) and gold coins (j';f fhRfs;)
 A pair of ear rings
 A nose ring
 An oval shaped ring and plain ring, both in the right hand

8 In the cross-examination of Mahendra Kumar (P.W.4), the defence

has not contended that he is not the son of Saroja nor denied that he was living in

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Apartment No.C-005 with her. Apart from the evidence of Mahendra Kumar

(P.W.4), we also have the evidence of Raman (P.W.2), Manager of Raheja Centre

and Karunanidhi (P.W.3), employee of Dream Home Solutions, who, in their

evidence, have stated that the apartment in which Saroja was residing belongs to

her family. To cap it all, the DNA reports (Exs.P.36 to P.38) issued by Thara

(P.W.36), clearly state that the DNA extracted from the dead body is that of the

biological mother of Mahendra Kumar (P.W.4). The fact that Saroja went missing

from 13.02.2013 has been established by the prosecution through the evidence of

Mahendra Kumar (P.W.4) and the complaint (Ex.P.46) that was lodged by

Natarajan to the police, based on which, Chinnappan (P.W.31), registered a case

for ‘woman missing’ in Cr.No.366 of 2013 on 16.02.2013, which was

investigated by Kuppuraj, Sub Inspector of Police (P.W.16). Therefore, we hold

that the prosecution has proved the following facts:

 Saroja is the mother of Mahendra Kumar (P.W.4)

 Saroja went missing on 13.02.2013
 Saroja was wearing ornaments and apparel set out above
 The family of Saroja lodged a complaint to the police on 16.02.2013, based
on which, the police registered a case for ‘woman missing’ and took up
investigation of the case in Cr.No.366 of 2013.
B. Apartment No.C-002

9 The next piece of evidence is with regard to Apartment No.C-002.

Visweswaran (P.W.1), in his evidence, has stated that he is into real estate

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business and also takes properties on lease for letting them out as service

apartments; he had taken on lease two apartments in Raheja Centre, viz., C-002

and B-208; Apartment No.C-002 belongs to one Balaji; he employed Karunanidhi

(P.W.3) and one Raja (not examined) to manage the apartments as service

apartments; in August 2012, the appellant approached him for accommodation and

paid a sum of Rs.30,000/- as advance.

10 The learned Senior Counsel for the defence contended that there is

absolutely no document that has been marked by the prosecution to show that the

appellant had taken Apartment No.C-002 for his occupation. It is true that the

prosecution had not marked any document, but, can that, by itself, lead this Court

to infer that the appellant had not taken Apartment No.C-002 for his

accommodation? The fact that the appellant had taken Apartment No.C-002 has

been spoken to not only by Visweswaran (P.W.1) but also by Raman (P.W.2),

Manager of Raheja Centre and Karunanidhi (P.W.3) and Paramasivam (P.W.27),

both employees under Visweswaran (P.W.1). Notwithstanding their evidence,

Mahendra Kumar (P.W.4), who lived in Apartment No.C-005 right opposite

Apartment No.C-002, has, in his evidence, clearly stated that he knows the

appellant and that the appellant was staying in the opposite apartment, viz.,

Apartment No.C-002.

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11 This Court cannot lose sight of the fact that service apartments

culture has been imported from the West where the landlord would enter into an

agreement with a real estate agent and get his monthly rents regularly leaving it to

the real estate agent to furnish the apartment and exploit it commercially.

12 Visweswaran (P.W.1), in his cross-examination, has clearly stated

that he had furnished Apartment No.C-002 by providing cot, refrigerator, air

conditioners and other amenities for the tenants to stay comfortably. We have no

reasons to disbelieve the evidence of Visweswaran (P.W.1), Raman (P.W.2),

Karunanidhi (P.W.3), Mahendra Kumar (P.W.4) and Paramasivam (P.W.27) and

hold that they had falsely deposed that the appellant was in occupation of

Apartment No.C-002. Even in the statement under Section 313 Cr.P.C., the

appellant had not denied specifically that he was not in occupation of Apartment

No.C-002 or along with him, there was someone else also on a sharing basis.

13 In the light of the aforesaid discussion, the absence of a rental

agreement or any such document to prove that the appellant had taken Apartment

No.C-002 from Dream Home Solutions run by Visweswaran (P.W.1) for his

occupation, cannot be a good reason to disbelieve the testimony of the aforesaid

witnesses. Therefore, we hold that the appellant was in occupation of Apartment

No.C-002 from August 2012 onwards.

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C. Recovery of dismembered parts from Apartment No.C-002:

14 Raman (P.W.2), Manager of Raheja Centre, in his evidence, has

stated that on 19.02.2013, some residents complained to him that a foul smell is

emanating from Apartment No.C-002 and so, he informed this to Visweswaran

(P.W.1); Visweswaran (P.W.1) sent Karunanidhi (P.W.3) to look into the matter

and if required, to spray insecticide; Karunanidhi (P.W.3) and another person went

to Apartment No.C-002 and sprayed insecticide, despite which, the foul smell did

not get subsided.

15 Karunanidhi (P.W.3), in his evidence, has stated that he was the

Manager of Dream Home Solutions under Visweswaran (P.W.1) and was

managing the service apartments in Raheja Centre; the appellant had taken

Apartment C-002 for his accommodation; on 20.02.2013, he, along with one Raju

(not examined), went to Apartment No.C-002 and sprayed insecticide as the

residents were complaining that a foul smell was coming from there; at that time,

the appellant was there.

16 Visweswaran (P.W.1), in his evidence, has stated that on 21.02.2013,

around 11.00 a.m., Raman (P.W.2) contacted him and told him that a foul smell

was coming from Apartment No.C-002 and asked him to attend to it; therefore, he

himself went to Apartment No.C-002 and he was accompanied by Karunanidhi

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(P.W.3) and Raju; he went to Apartment No.C-002 and rang the calling bell, but,

none opened the door; so, he tried to open the door with the spare key that he was

having, but, he could not; so, he went along with Karunanidhi (P.W.3) and Raju to

the rear side of the apartment and found that the rear door was open; he entered

the apartment from the rear door and found that the front door was bolted from

inside; therefore, he removed the bolt and opened the front door; he went to the

bedroom on the north side and found a red colour VIP suitcase; he also found

another red colour VIP suitcase in the other bedroom on the southern side; he

found cement fissures in the zip portion of the suitcase; he opened the first

suitcase and found severed parts of hands, legs and head; in the second suitcase,

he found a trunk; he immediately went to B-4 Race Course Police Station and

lodged a complaint (Ex.P.1); the police came to the place of occurrence, by which

time, neighbours also had gathered; when all the items were removed by the

police, Mahendra Kumar (P.W.4) saw the dead body and identified the body as

that of his mother. It is pertinent to point out that Raman (P.W.2) and Karunanidhi

(P.W.3) have corroborated the evidence of Visweswaran (P.W.1) on this crucial

aspect.

17 Mahendra Kumar (P.W.4), in his evidence, has stated that from

19.02.2013 onwards, a bad smell was coming from Apartment No.C-002 and so,

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he, along with other residents, complained to Raman (P.W.2), Manager of Raheja

Centre and asked him to look into it; on 21.02.2013, when the smell was

intolerable, he, along with others, once again, complained to Raman (P.W.2) and

on the same day, around 11.30 a.m., Visweswaran (P.W.1) and Karunanidhi

(P.W.3) came to Apartment No.C-002, entered the apartment from the rear side

and opened the front door from inside; when the front door was opened, the foul

smell was intense; they found two suitcases with body parts and so, they went to

the police station to lodge a complaint; when the police came and removed the

contents from the suitcases, he also saw the dismembered parts; after having had a

look at the head portion, nose ring and saree, he identified the body as that of his

mother.

18 All these had taken place in the course of a sequence of events, viz.,

to abate the foul smell, Visweswaran (P.W.1), Raman (P.W.2) and Karunanidhi

(P.W.3) entered the flat through the rear side entrance; opened the front door from

inside; neighbours, including Mahendra Kumar (P.W.4) gathered in front of

Apartment No.C-002; Visweswaran (P.W.1), Raman (P.W.2) and Karunanidhi

(P.W.3) found the smell coming out from two VIP suitcases; so, they opened the

two suitcases and saw the parts of a human body; Visweswaran (P.W.1) went to

the police station; Chandrasekar (P.W.28), Inspector of Police, came to the place,

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opened the two suitcases and laid down the dismembered parts; and Mahendra

Kumar (P.W.4) came to Apartment No.C-002, saw the head portion, nose ring and

the saree and identified the body as that of his mother Saroja.

19 It is not the case of the defence that the two suitcases containing the

body parts were brought by Visweswaran (P.W.1), Raman (P.W.2) and

Karunanidhi (P.W.3) from elsewhere and planted in Apartment No.C-002.

Thereafter, the police conducted three inquests as stated above and sent the

dismembered parts to the Government Hospital for post-mortem. When these

operations were taking place, the appellant was not available there.

20 It may be necessary to recapitulate that Visweswaran (P.W.1)

attempted to open the main door with the spare key, but, he could not. That is

because, the door was not locked by using the key, but, was locked by bolting the

latch from inside. In other words, had the occupant of Apartment No.C-002 gone

out through the front door, he would have locked the apartment with the key

available with him. On the contrary, the front door was found to be latched from

inside which was opened by Visweswaran (P.W.1) after he gained entry through

the rear door which was kept open. Therefore, it is obvious that the occupant of

Apartment No.C-002 had latched the front door from inside and had gone out

through the rear door.

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21 In the light of the aforesaid discussion, we have no hesitation in

concluding that the dismembered parts of Saroja were recovered from two

suitcases (M.Os.1 and 2) from Apartment No.C-002 on 21.02.2013.

22 The sequence of events, viz., that a foul smell was emanating from

Apartment No.C-002 from 19.02.2013; Karunanidhi (P.W.3) had gone to the

apartment to spray insecticide on 20.02.2013; the appellant was present in the

apartment on that day; the foul smell did not abate and so, when the apartment was

checked on 21.02.2013, the dismembered parts were found from two suitcases and

the appellant was not available, does cast a burden on the appellant to show the

circumstances under which the two suitcases with the dismembered parts found

their way into the apartment under his occupation. The prosecution case does not

stop with this. The prosecution case continues with the arrest and recovery of the

ornaments and apparel worn by Saroja on the disclosure made by the appellant

which will be discussed hereinafter.

23 As regards the seizure of the pair of thighs subsequently,

Mr.V.Karthic attacked the seizure by submitting that the same appears to be

artificial. It is true that when the two suitcases were examined on 21.02.2013 and

inquests conducted, the thigh portion of the dead body was not available. The

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thigh portion was recovered subsequently on 27.02.2013, because, the foul smell

once again emanated from the apartment subsequently.

24 Karunanidhi (P.W.3), in his evidence, has stated that after the police

completed their enquiry, they handed over the keys of the apartment to him with a

specific instruction not to clean it; he was retaining the spare key of the apartment;

the neighbours once again started complaining that a foul smell was coming from

the apartment; so, he approached the police and sought their permission to clean

the apartment; accordingly, on 27.02.2013, he went inside the apartment to clean it

and observed that the same smell continued to exist; therefore, he alerted the

police and pursuant thereto, Chandrasekar (P.W.28), Inspector of Police, came

with the police party and started making a roving search; during the search, the

police found cement fissures above the cupboard in the left bedroom and when

they scraped the cement patch work, they found a pair of thighs kept in a plastic

cover hidden in the wall.

25 Immediately, Chandrasekar (P.W.28), Inspector of Police, conducted

another inquest in the presence of panchayatdars in Ex.P.43 and sent the pair of

thighs to the Government Medical College and Hospital, Coimbatore, where, Dr.

Jeyasingh (P.W.21) performed autopsy and opined that the pair of thighs matched

with the body of the female mentioned in post-mortem no.499 of 2013 dated

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22.02.2013. Post-mortem no.499 of 2013 was done by Dr. Kulandaivelu (P.W.15)

on 22.02.2013. We do not find any artificiality in this at all, because, there is no

need for the police to plant the pair of thighs in the same apartment and make it

look as if they discovered it after they were alerted by Karunanidhi (P.W.3). That

apart, we do not understand as to why the post-mortem doctors viz., Dr.

Kulandaivelu (P.W.15) and Dr. Jeyasingh (P.W.21) should go out of the way to

support the prosecution. Just because the police were not able to retrieve the pair

of thighs on 21.02.2013, the recovery of the thighs subsequently cannot be said to

be a farce. In fact, the prosecution case appears to be more credible and truthful.

26 Therefore, we have no hesitation in holding that Saroja died of

homicidal violence and her dismembered body parts were recovered from

Apartment No.C-002, which was in the exclusive occupation of the appellant.

27 Coming to the arrest of the appellant, Mr. Karthic submitted that it

was a make-believe as could be seen from the fact that the arrest was allegedly

effected in Visakhapatnam in the presence of a Tamil knowing person Ravinder

(P.W.13). Chandrasekar (P.W.28), in his evidence, has stated that while the police

were intensely searching for the appellant, they received intelligence that the

appellant had escaped to Visakhapatnam and therefore, a team of officers headed

by the Assistant Commissioner of Police (Crime), Chandramohan, Inspector of

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Police (CCB) and himself, with a party of Constables, left for Visakhapatnam and

conducted surveillance; the appellant was spotted at 8.30 a.m. on 02.03.2013 in

Hotel Meghana near Leela Mahal junction; he requested two Tamil speaking

persons, viz., Ravinder (P.W.13) and one Ramesh Babu (not examined) to stand as

witnesses for recording the confession and recovering the materials from the

possession of the appellant. It is true that Ravinder (P.W.13) is a Tamil knowing

person. The presence of persons knowing Tamil in Andhra Pradesh and persons

knowing Telugu in Tamil Nadu is not something uncommon. Tamil Nadu and

Andhra Pradesh share a long common border and in fact, Andhra Pradesh was part

of the Madras Presidency until re-organisation of States based on language.

Further, for recording the confession of an accused, it is really not necessary to

have witnesses, because, a confession to police is per se inadmissible by virtue of

Section 25 of the Evidence Act. The confession to police becomes relevant under

Section 27 of the Evidence Act only when there is discovery of a fact that was

hitherto unknown to the police based on the information supplied by the accused.

Recoveries:

28 To recapitulate, in this case, the statement of the appellant was

recorded by the police immediately after his arrest in Visakhapatnam and the

statement was submitted to the Chief Judicial Magistrate, Visakhapatnam while

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the appellant was produced there for transit remand. The confession contains a

wealth of details, which, of course, cannot be relied upon in view of the ban under

Section 25 of the Evidence Act, as discussed above.

29 Now, let us examine the recoveries that were effected by the police

based on the information supplied by the appellant in his confession statement.

30 From the possession of the appellant, as stated in paragraph 1.25

above, the police recovered M.Os.34 to 42 and Ex.P.6 under mahazar (Ex.P.12) at

Visakhapatnam. The driving licence (M.O.39) of the appellant contains the

following address:

“Yasar Arafat J.
S/o Jahir Hussain P.J.
1E/3,227 Periya Kothuba Pallivasal South
East Street
Melapalayam
Tirunelveli”
As stated above, the appellant was a native of Tirunelveli and had come to

Coimbatore in search of employment and had taken Apartment No.C-002 from

Visweswaran (P.W.1) for his occupation. The defence submission that the

prosecution had not filed any document to show the identity of the appellant when

he took Apartment No.C-002 from Visweswaran (P.W.1) and therefore, that fact

has not been proved, does not carry weight with us. Visweswaran (P.W.1), in his

cross-examination, has stated that he handed over the documents that he had with

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regard to the identity of the appellant to the police and that the police also cross-

checked and found that the appellant was a resident of Tirunelveli. This statement

of Visweswaran (P.W.1) in the cross-examination is fortified by the fact that even

in the inquest reports, the Tirunelveli address of the appellant finds a place. The

police seized the R.C. book (Ex.P.6) of the Maruti car bearing Regn. No.TAR

2006 and the car was seized in the parking lot of Raheja Centre subsequently on

04.03.2013 vide mahazar (Ex.P.7). The appellant provided information of the

persons through whom he had purchased the Maruti car and accordingly, the

police located Basheer @ Basheer Ahmed (P.W.11) and Soundar Rajan (P.W.9),

car brokers, who acted as middlemen in the transaction for the appellant’s

purchase of car belonging to Senthil Kumar (P.W.8), who had originally

purchased the same from one Gopinath (not examined). Senthil Kumar (P.W.8)

and Soundar Rajan (P.W.9) identified the appellant in the dock during trial,

whereas, the appellant was not present on the day of examination of Basheer

(P.W.11) and Basheer (P.W.11) has stated that he knows the appellant well.

Senthil Kumar (P.W.8), Soundar Rajan (P.W.9) and Basheer Ahmed (P.W.11)

have stated in their evidence that the car belonged to Senthil Kumar (P.W.8);

Soundar Rajan (P.W.9) and Basheer Ahmed (P.W.11) facilitated the sale of the car

to the appellant for Rs.51,000/- and that the appellant paid Rs.40,000/- as advance

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and agreed to pay the balance at the time of delivery of the R.C.book. The R.C.

book was delivered on 19.02.2013, on which date, the appellant paid the balance

of Rs.11,000/- and the R.C. book was recovered from the appellant at the time of

his arrest.

31 As regards the third seizure which has been vividly stated in

paragraph 1.28 above, the police seized 2 gold thalis (M.O.7), talisman together

with safety pin in yellow colour thread (M.O.30), pair of anklets (M.O.12) and other

implements and instruments about which we will discuss a little later. The fact

that two gold thalis (M.O.7), thali thread (M.O.11) and pair of anklets (M.O.12)

belonged to Saroja stood established via the evidence of Mahendra Kumar (P.W.4)

who identified the said items during trial and stated that they were worn by his

mother Saroja.

32 Coming to the implements like hacksaw blade, screw driver, knives,

etc. which were also seized under mahazar (Ex.P.8), these implements were

probably used by the appellant to dissect the body parts of Saroja and it will not be

illegitimate to draw such an inference in the light of the fact that the body parts of

Saroja were found in two VIP suitcases (M.Os. 1 and 2) and the two thighs were

kept hidden in the cupboard.

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33 In the third seizure, the police seized a bill dated 16.02.2013

(M.O.29) of Roshan Bag Stores, through which, they located Rajesh (P.W.19), a

staff of Roshan Bag Stores, who, in his evidence, has identified the appellant and

stated that on 16.02.2013, around 9.30 p.m., the appellant came to their shop and

purchased two VIP suitcases; he identified the suitcases as M.Os.1 and 2; he also

handed over to the police the CCTV footages to show the purchases of suitcases

(M.Os.1 and 2) by the appellant from his shop on the said day.

34 The fourth seizure which assumes great significance, has been set out

in paragraph 1.29 above. On the disclosure of the appellant, the police located

Mahalakshmi Finance and examined its owner Dilip Kumar (P.W.14). From

Mahalakshmi Finance, gold dollars numbering 8 and weighing 11.900 grams

(M.O.10) and two gold rings (M.Os.8 and 9) were recovered. Dilip Kumar

(P.W.14) identified the appellant in the dock as the person who came to his shop

on 13.02.2013, introduced himself as Nazir and pledged the 2 gold rings (M.Os.8

& 9). The description of these ornaments finds a place in the ‘woman missing’ FIR

(Ex.P.46) that was registered by the police on the complaint of Natarajan, Saroja’s

husband. As stated above, Natarajan died on 14.06.2014 before the

commencement of trial and therefore, he was not examined. However, Mahendra

Kumar (P.W.4) has identified M.Os.8 to 10 as belonging to his mother. An

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incriminating circumstance that stares at the face of the appellant is that he

disclosed to the police in his confession the information that he assumed the

pseudo name Nazir. This information led to the discovery of the fact that he had

given the name Nazir while pledging the ornaments with Dilip Kumar (P.W.14) of

Mahalakshmi Finance on 13.02.2013. The police seized the pawn tickets (M.Os.32

and 33) from the office of Mahalakshmi Finance which bears the name, Nazir, S/o

Hussain. From these evidences, we can safely draw the inference that on

13.02.2013, Saroja’s death had occurred.

35 Lastly, the fifth seizure, viz., the Godhumai model gold chain (M.O.6)

weighing around 54 gms. from Muthoot Finance, Tirunelveli, on 06.03.2013 under

mahazar (Ex.P.23), which has been set out in paragraph 1.30 above, also assumes

importance. On the information provided by the appellant, the police took him to

Muthoot Finance where Faizullah (P.W.20), Manager, Muthoot Finance, was

examined and the Godhumai model gold chain (M.O.6) was recovered. This

Godhumai model gold chain also finds a place in the ‘woman missing’ FIR

(Ex.P.46). Faizullah (P.W.20), Manager, Muthoot Finance in Tirunelveli, has

identified the appellant as the person who came on 15.02.2013 to Muthoot Finance

and pledged the Godhumai model gold chain (M.O.6), which has been identified

by Mahendra Kumar (P.W.4), Saroja’s son.

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36 Mr. Karthic placed strong reliance on Exs.D.1 and D.2 and submitted

that they create a dent in the case of the prosecution. He developed his arguments

by submitting that in the post-mortem requisition (Ex.D.1), the Investigating

Officer has stated that he was unable to identify any distinctive marks on Saroja’s

body. We do not understand as to how this could cause any dent in the prosecution

case, especially when Mahendra Kumar (P.W.4), who lives in the opposite

apartment, viz., Apartment No.C-005, identified the mutilated body immediately as

that of his mother’s. Be that as it may, the DNA profiling has established beyond

cavil that the deceased was Saroja, mother of Mahendra Kumar (P.W.4).

37 Placing reliance on the dog squad report (Ex.D.2), wherein, it is

stated that there was a tool box and a shirt near Saroja’s body, Mr. Karthic

contended that the police had failed to seize them which is fatal to their case. It is

true that the police did not seize the shirt and tool box. But, such remissness in

investigation, has not, in any manner, affected the kernel of the prosecution

hypothesis. Overwhelming evidence has been adduced by the prosecution to show

that the appellant alone had taken Apartment No.C-002 from Visweswaran

(P.W.1) for his stay. Had it been the appellant’s case that along with him, yet

another person was also staying in Apartment No.C-002, then, the burden is on

him to probablise it. Neither in the cross-examination of the prosecution witnesses

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nor in the statement under Section 313 Cr.P.C., has the appellant taken any such

defence. Therefore, we are unable to hold that Exs.D.1 and D.2 have, in any way,

dented the prosecution case.

38 On a conspectus of the evidence discussed above, we find that the

prosecution has proved the following facts beyond all reasonable doubt.

a) Saroja was living with her family in Apartment No.C-005. Her son
Mahendra Kumar (P.W.4) was a part of her family.

b) Visweswaran (P.W.1) had taken Apartment No.C-002 and was letting it out
as a service apartment. Karunanidhi (P.W.3) and Paramasivam (P.W.27)
were his employees and were actually managing the service apartment.

c) The appellant took Apartment No.C-002 for his occupation from

Visweswaran (P.W.1) in August 2012 and continued to live alone there.

d) Saroja went missing on 13.02.2013.

e) The appellant pledged Saroja’s two gold rings (M.Os.8 and 9) on

13.02.2013 with Mahalakshmi Finance in the name of Nazir.

f) The appellant pledged the Godhumai model gold chain (M.O.6) on

15.02.2013 with Muthoot Finance, Tirunelveli, in his own name.

g) The appellant purchased two VIP suitcases (M.Os.1 and 2) on 16.02.2013 at

9.30 p.m. from Roshan Bag Stores.

h) Foul smell came from Apartment No.C-002 from 19.02.2013 and

neighbours started complaining.

i) Karunanidhi (P.W.3) and Paramasivam (P.W.27) went to Apartment No.C-

002 on 20.02.2013 and sprayed insecticide to quell the stench. The appellant
was available then in the apartment.

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j) The stench did not abate and so, on 21.02.2013, Visweswaran (P.W.1),
Raman (P.W.2) and Karunanidhi (P.W.3) entered the apartment through the
rear door and found the dismembered body parts of Saroja in the two
suitcases (M.Os.1 and 2). The appellant was not available and his
whereabouts were not known to anyone. A pair of thighs was missing.

k) The pair of thighs was recovered from the cemented portion of the cupboard
on 27.02.2013.

l) DNA profiling showed that the body parts that were recovered are those of
Saroja and Saroja was the mother of Mahendra Kumar (P.W.4).

m) The appellant was arrested in Visakhapatnam on 02.03.2013, his confession

recorded, he was produced before the Chief Judicial Magistrate,
Visakhapatnam on the same day, brought to Coimbatore and recoveries
effected.

n) The recovered ornaments have been marked and identified by Mahendra

Kumar (P.W.4) as belonging to his mother Saroja.

o) The description of the ornaments finds a place in the ‘woman missing’ FIR
that was registered by the police on 16.02.2013 itself.

p) The evidence of the post-mortem doctors show that the death of Saroja was
due to strangulation.

The above proved facts unmistakably point to the guilt of the appellant and the

proved circumstances admit of no other hypothesis. Further, the evidence adduced

by the prosecution does pass muster the standards set by the Supreme Court in

Hanumant (supra).

39 Now, we embark upon to examine the seminal aspect of this case,

viz., the desirability of awarding the hangman’s noose. Though the learned trial

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Judge has had the opportunity to see the witnesses, examine the circumstances and

come to the conclusion that the appellant deserves to die, we would like to strike a

discordant note.

40 This is yet another run-of-the-mill case of murder for gain and

nothing more or nothing less. In other words, in our view, this case does not fall

under the category of “rarest of rare cases” for awarding the death penalty. It is not

the case of the prosecution that the appellant went about sadistically dismembering

a living person. The post-mortem certificates (Exs.P.15 and P.32) clearly show

that Saroja’s death had occurred due to strangulation of her neck and all the other

injuries have been found to be post-mortem and not ante-mortem ones. After

having caused the death of Saroja for relieving the ornaments worn by her, the

appellant has dismembered her body parts in order to avoid detection. That is why,

he had stuffed the dismembered parts in two suitcases and had hidden a pair of

thighs above the cupboard, thinking that he would be in a position to dispose of

the two suitcases and avoid detection. Maybe, luck did not smile at him and the

intolerable pungent stench that emanated from the two suitcases and the cupboard

miserably betrayed him. There is no other material, much less any material worth

the salt, to show that the appellant had an intrinsic criminal propensity and would

be a menace to the society. Therefore, we are unable to persuade ourselves to

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confirm the sentence of death that has been slapped by the trial Court on the

appellant and we substitute the same with life imprisonment together with a rider

that the appellant cannot be released before the expiry of 25 years of actual

imprisonment under any statutory remission or commutation scheme. It is legal to

say so in the light of the Constitution Bench judgment of the Supreme Court in

Union of India vs. Sriharan @ Murugan and others2. We are justified in adding

the rider, because, the appellant was not a stranger to Saroja. Being Saroja’s

neighbour, the appellant had laid a trap in which the former fell and lost her

precious life. Though the police case is that the appellant sought her help to light

the gas stove in his house, for which, she came with a lighter and he grabbed that

opportunity to finish her off, we have no legal evidence for all these, except the

police confession.

41 Be that as it may, on the day of the incident, the appellant was 22

years old and Saroja was 54 years old. This significant age difference puts the

appellant in the position of Saroja’s son. The fact remains that a defenceless

quinquagenarian lady has been done to death for her ornaments by her neighbour

and hence, the latter deserves to be in prison for not less than 25 years.

42 Accordingly, we confirm the conviction of the appellant of the

offence under Section 302 IPC, but, modify the sentence therefor, to one of
2
(2016) 7 SCC 1

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 R.T. No.2 of 2019 & Crl.A. No.751 of 2019

imprisonment for life, with a further rider that the appellant shall not be released

under any statutory remission or commutation scheme until he has undergone 25

years of actual imprisonment, inasmuch as, it is a crime against a defenceless

woman.

43 As far as the conviction and sentences for the offences under Sections

380 and 201 IPC are concerned, we do not want to upset the same and they are

accordingly confirmed. However, the sentences for the said offences shall run

concurrently with that of the sentence of imprisonment for life for the offence

under Section 302 IPC.

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In the result, with the above modification in sentence stated in paragraph

42, supra, the criminal appeal is dismissed. The reference made by the learned IV

Additional District and Sessions Judge, Coimbatore, is answered accordingly.

(P.N.P., J.) (V.S.G., J.)

17.03.2021
cad
To
1 The Inspector of Police
B-4, Race Course Police Station
Coimbatore, Coimbatore District

2 The IV Additional District and Sessions Judge

Coimbatore

3 The Public Prosecutor

High Court of Madras, Chennai 600 104

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 R.T. No.2 of 2019 & Crl.A. No.751 of 2019

P.N. PRAKASH, J.

and

V. SIVAGNANAM, J.

cad

R.T. No.2 of 2019 and Crl.A. No.751 of 2019

17.03.2021

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