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TMI Blog2016 (1) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... are afraid we would have treated this case as another case of murder for gain, not warranting death penalty. In Sangeeth v. State of Haryana, [ 2012 (11) TMI 1335 - SUPREME COURT] , the Supreme Court has discussed the cases in which death penalty was confirmed/reversed and has held that sentencing should be based on the crime and the criminal. In this case, the manner in which the crime was committed may shake conscience. But there is no material produced by the prosecution to show that the criminal is a menace to the Society. There are sufficient force in the submission of the learned Public Prosecutor that the offence has been committed in a cool, calculated and gruesome manner. The accused could have easily bolted the vault room from outside when Gunaram was inside and taken away as much as he could. There was no necessity to take away the life of Gunaram, if robbery had been the motive. Keeping in mind the macabre nature of the crime, the sentences imposed on the accused should run consecutively and not concurrently. The conviction of the appellant/accused under Section 404 IPC and the sentence imposed thereon are set aside - The conviction of the appellant/accused under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint (Ex. P-1) given to the Police, Dhanaram (PW-1) has stated that on 23.10.2011 when Gunaram was in the shop, someone had sprayed an anaesthetic substance, and had burgled around 935 grams of jewellery in connection with which a case in Maduravoyal Police Station Cr. No. 986 of 2011 has been registered. The lost jewellery belonged to one Kalyanmal Ranka (PW-15), and he (PW-15) suspected some foulplay by Gunaram and that he must have hired a killer to do the job. (e) Dhanaram (PW-1) was in such a state of shock that he was unable to give the details of the lost jewels to the Police. Hence, Bawarlal (PW-11), who also has a Pawn shop nearby, and is known to Dhanaram (PW-1), took stock of the items and reported that seven items weighing 48 grams were missing. When Bawarlal (PW-11) informed this, Dhanaram (PW-1) told him that from the Video recordings shown to him by the Police, it appears that the intruder has taken only the covering jewellery. (f) John Arumairaj (PW-28) went to the scene of occurrence and in the presence of witnesses Vimal (not examined) and Muthu (PW-8), prepared an Observation Mahazar (Ex. P-18) and a Rough Sketch (Ex. P-19). Luckily for the Police, but unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side end of the incised wound is acute and lies 1.5 cm to the left of midline. The incised wound extends to the right side of the neck crossing the midline below the thyroid cartilage to a point 6 cm below the right side mastoid process. Tailing seen at this point to a length of 3.5 cm. The margins of the wound are clean cut. On front the lower end of the Incised wound lies 4 cm above the suprasternal notch. The upper border of the incised wound lies 6.5 cm below the chin. On dissection:-- The anterior neck muscles on the lower part found severed on both sides and exposed outside. The superficial blood vessels of the left side of the neck found severed. The left carotid artery found cut partially. Extravasation of blood seen in the left side supra clavicular region and lower part of left side of neck. The wound enters the left side thoracic cavity through the upper part of front of chest in the supra cavicluar region. Cutting through the muscles over the left side supraclavicular region. On dissection of Chest:-- The left end of the incised wound over neck communicates with the upper part of left thoracic cavity. Lung shows a cut injury measuring 1 x 0.5 x 0.5 cm in the upper part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Gunaram to relatives and collected the blood stained cloths worn by the deceased viz., blood stained white pant (MO-7); blood stained white colour banian (MO-8); blood stained underwear (MO-9); rose colour half shirt (MO-19) from the Postmortem Doctor (PW-21) and handed them over to the Inspector (PW-28), to send the same to the Tamil Nadu Forensic Sciences Department through Court for examination and report. (m) While the investigation was in progress, breakthrough in the case came when Ramajayam @ Appu (accused/appellant) was apprehended by the Public when he attacked one Chandraprabha and attempted to snatch her Gold Chain, and was thereafter handed over to S-10 Pallikaranai Police, who registered a case in Cr. No. 925 of 2012 on 12.5.2012 at 17.00 hours under sections 393, 397, 450 and 307 IPC. (n) Sahadevan (PW-27), Inspector of Police, Pallikaranai Police Station (hereinafter referred to as 'Pallikkaranai Inspector') took up the investigation in Cr. No. 925 of 2012 and during interrogation, the accused disclosed about his involvement in this case. His confession statement was recorded and based on the disclosure made by him, in the presence of Chittibabu (not exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anspired as observed from the video footage/recordings through channels Display/ Channel number 11:19:57 A stranger is seen entering the shop CH3 11:20:01 The stranger is seen conversing with the shop owner inside the shop CH2 11:20:01 to 11:20:57 Conversation between the two goes on CH1 and CH2 11:20:57 Shop owner displays a catalogue CH2 and CH1 11:24:43 The shop owner is seen entering the safety locker room for the first time CH2, CH1 11:24:47 The shop owner seen inside the safety locker room CH4 11:24:51 Shop owner is seen opening the safety locker viewing the jewels taken from the safety locker CH4 11:24:55 The stranger is seen waiting outside CH2 11:25:18 The stranger is seen placing his bag on the desk CH2 11:25:22 Shop owner is seen viewing the jewels taken from inside the locker CH4 11:25:40 Shop owner is seen coming out of the safety locker room and again has conversation with stranger till about 11:38:17 CH2 11:38:21 The shop owner is seen re-entering the safety locker room for the second time CH2 11:38:23 The shop owner is seen inside the safety locker room and once again is viewing the jewels taken from the safety locker room CH4 11:38:51 The stranger is seen waiting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. (t) John Arumairaj (PW-28) examined the experts and other witnesses and on his transfer, Kannan (PW-29), Inspector of Police proceeded with further investigation and filed Final Report before the jurisdictional Magistrate for the offences under Sections 404, 302 and 449 IPC. 3. On appearance of the accused before the trial Court, provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions in S.C. No. 142 of 2013 and was made over to the III Additional District and Sessions Court, Tiruvallur @ Poonamallee, where charges for the offences under Sections 449, 302, 392 and 404 IPC were framed. When questioned, the accused pleaded Not Guilty . 4. To prove the charges, the Prosecution has examined 30 witnesses; marked 22 exhibits; and produced 15 material objects. 5. The accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances and he denied the same. No witness was examined, nor any exhibit was marked on the side of the accused/appellant. 6. After hearing both sides and appraising the evidence on record, the trial Court has convicted the accused and sentenced him as follows: Conviction u/s Sentence imposed 449 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Evidence Act have the following common denominator; A fact is said to be proved/disproved when, after considering the matters before it............ (emphasis supplied) Without viewing the CCTV footage, how can any Court, consider the matter before it to conclude that a fact has been 'proved' or 'disproved' ? That apart, Section 62 of the Indian Evidence Act, 1872 states, Primary evidence means the document itself produced for the inspection of the Court. (emphasis supplied). This does not mean that, if a secondary evidence of a document is admitted lawfully, the Court is denuded of the power to inspect it. Such an inference will lead to absurdity. Therefore, we hold that a Court has the power to view CCTV footage and video recordings, be it primary or legally admissible secondary evidence, in the presence of the accused for satisfying itself as to whether the individual seen in the footage is the accused in the dock. The trial Court should also specifically put questions to the accused when he is examined under Section 313 Cr.P.C. about his overt acts appearing in the footage and record his answers. 9. Bhudharam (PW-6) in his evidence has stated that, in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Gunaram's death was homicidal has been proved beyond any pale of doubt by the Prosecution, and that is also not seriously disputed by the defence. The only question that requires to be decided is, whether the accused was the perpetrator of the crime ? 13. The Prosecution heavily relied upon the evidence of Budharam (PW-6), who is said to have seen the accused in the shop of the deceased in and around the time of occurrence. Budharam (PW-6) in his evidence before the trial Court has stated that he is working in Chethan Fancy Store, owned by his brother and also doing chit business; that on 14.4.2012 in the afternoon he came to the shop of the deceased for collecting chit amount from Dhanaram (PW-1), who is said to be a subscriber; that at that time one customer wearing blue colour jeans and T-Shirt was in the shop, whom he identified as the accused in the dock. In the Digital Video Recording (MO-2) that was viewed by us on 12.1.2016, we saw Budharam (PW-6) entering the shop while the accused was talking to the deceased. After talking to the deceased for a few minutes Budharam (PW-6) is seen leaving the shop. Therefore, it cannot be contended that he was a witness planted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is living with his wife Kavitha and two children in the Police Quarters in the Thousand lights area; that his wife's sister Anjali was in love with the accused and wanted to marry him; that the accused would frequently come to his house and stay with them; that the accused told them that he needs money to go to Canada for higher studies, for which Jaishankar (PW-13) pledged his wife's jewellery and gave him Rs. 9 lakhs on loan. Whileso, on 13.5.2012, Pallikaranai Police brought the accused to his house and seized 400 grams of jewellery and a T-Shirt; that he identified the covering jewellery as MO-1 Series and T-Shirt as MO-4; and that, on 18.5.2012 the Inspector of Police Maduravoyal Police Station brought the accused to his house and recovered a Jeans Pant (MO-3) and a knife (MO-5) in the presence of Mareeswaran (PW-14) and Manoharan (not examined). 16. Mr. M. Jagadeesan, learned Counsel appearing for the accused/appellant seriously attacked this evidence by pointing out certain discrepancies. He submitted that Jaishankar (PW-13) had deposed in the Chief Examination that Pallikaranai Police had recovered 400 grams of covering jewellery (MO-1 series) and T. Shirt (MO- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1) and the horizontally striped T-Shirt (MO-4) by Pallikkaranai Police is relevant and admissible in this case. 19. Mr. M. Jagadeesan, learned Counsel submitted that Sahadevan (PW-27), Inspector of Police, Pallikaranai Police Station ought to have sent the Gold Covering Chains (MO-1 series) and T-Shirt (MO-4) to the Court and should not have handed them over to the Maduravoyal Police. We are unable to countenance this submission for the simple reason that these articles that were seized by the Inspector of Police, Pallikaranai Police had nothing to do with the offence under investigation by them in Cr. No. 925 of 2012 and it had everything to do with the investigation by the Maduravoyal Police in the present case. Therefore, we find no irregularity in this. 20. The learned Counsel further contended that the Inspector of Police, Maduravoyal Police Station (PW-28) ought not to have received these articles under Form-95 from the Pallikkaranai Police, because the said form is used only for despatch of seized articles to the Court. Procedural irregularity, even if there is any, cannot vitiate the search and seizure, unless it is shown that some prejudice has been caused to the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Report and has categorically held that the evidence collected illegally or in violation of the procedural law will not become inadmissible. Very recently in Umesh Kumar v. State of A.P. ((2013) 10 SCC 591), the aforesaid principle was reiterated in connection with photographs and tape-recordings. Of course, it would have been an ideal situation had the Police adhered to PSO 646 or the provisions of Identification of Prisoners Act, 1920, but the ground reality is, Police in India do not work in ideal situations. In K. Ramaraj v. State by Inspector of Police, CBCID, Chennai ((2014) 2 MLJ (Crl) 41), a Division Bench of this Court to which one of us (PNPJ) was a party, deprecated the practice of Police taking photographs of the accused in the Police Station. The Court however did not hold that the photographs so taken becomes incapable of being used by the Experts for their analysis and opinion. 24. The evidence of Pushparani (PW-24), Scientific Officer, Anthropology Division and her report (Ex. P-12) clinches the issue. She has stated in her evidence that she received a CD containing photographs of a person from the Court of Judicial Magistrate No. II, Poonamallee. She then calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thods. 27. Criminal Justice Delivery System is built upon the episodic memory of witnesses and their capacity to translate the data stored in their memory into human language, for the purpose of communication and understanding by the Judge for rendering justice. Episodic memory is broadly described by Prof. Sen Cheng from RUHR University, Bosch, Germany as fairly accurate representation of personally experienced episodes. To put it in short, the opthalmic and auditory senses in human beings capture events and store them as memory in the brain. Thereafter the events can be narrated orally via a language. That is why, perhaps Jeremy Benthem called Witnesses as eyes and ears of Justice (See: State of M.P. v. Dharkole, 2004 AIR SCW 6241). 28. The capability of the human mind to give its own interpretation to what the eyes saw and what the ears heard while narrating, cannot be discounted. Universally, Courts have recognized the fact that there are bound to be exaggerations and embellishments in oral accounts. If five people are asked to see an event and give an account of it individually, there will not be unanimity in their versions. This has been scientifically tested and the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Buildings to install CCTV cameras. Apart from the law's compulsion, presence of lens men with sophisticated cameras is ubiquitous. We also have in abundance camera buffs who love recording anything and everything for posting in Facebook and Whatsapp. The Police cannot afford to lose these evidences collected by individuals and instead, rely upon archaic method of collecting evidence. Very recently in Tomaso Bruno v. State of U.P., (2015) 7 SCC 178, the Supreme Court acquitted the accused for the failure of the Police to produce the CCTV recordings, that being the best evidence. It may be necessary here to quote the relevant paragraph from the said judgment, which reads thus, 28............... Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical and moral procedure in policing vis- -vis the common man. 31. One has to understand the science of CCTV Recordings in the light of the Information and Technology Act, 2000, for the purpose of its optimum usage as evidence in the Court of Law. Gone are the days when Hindustan Photo Films produced film rolls for loading in the camera and on the click of the button the image gets imprinted on the film. The imprint is called the negative, which is the primary evidence, and the positive developed therefrom is considered as the secondary evidence. That technique has now become defunct. Today, the physical images captured by the camera is converted by a computer software into information, capable of being stored as data in electronic form and the stored data is electronic record. Section 3 of the Indian Evidence Act, 1872 as amended by the Information and Technology Act, 2000 reads as follows: the expressions Certifying Authority , electronic signature , Electronic signature Certificate , electronic form , electronic records , information , secure electronic record , secure electronic signature and subscriber shall have the meanings respectively assigned to them in the Information Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data in electronic form and is also capable of output. Since the gadget was small, the Police seized the DVR under the cover of mahazar and with the help of a Technician, they played it to the witnesses for the purpose of identifying the accused. By no stretch of imagination can this be faulted, because the police should have to act with alacrity to nab the criminal. 33. Strong reliance was placed by the learned Counsel appearing for the appellant/accused on the judgment of the Supreme Court in P.V. Anvar v. P.K. Basheer, (2014) 10 SCC 473, where interpretation of Section 65A and 65B of the Indian Evidence Act came up for consideration and the Supreme Court held that an electronic evidence recorded in the CD, bereft of a certification under Section 65B is inadmissible in evidence. In para 24 of the said ruling it is held as follows, 24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same before the Court without disturbing the integrity of the original source. If we fail to provide this facility to the Police, the Criminal Justice Delivery System will become a lame duck. 34. The question of copy as it is normally understood in physical data may not be applicable for electronic data. While retrieving the data from a huge Server it would suffice if certification under Section 65B is obtained from the person, who is incharge of the Server. After so obtaining the information in a USB drive or CD or any other gadget, the expert can feed the data into his computer and take printouts in tangible form with his certification stating as to how he had collected the data from the Server and fed them into his computer and produced the outputs. These two certifications, in our opinion, will satisfy the requirements of Section 65B of the Indian Evidence Act, 1872 in all fours. 35. We are aware that in many public and private offices, though computers are operated by their staff, yet the manning and maintenance of servers, where the data is actually stored, is outsourced to private players like TCS, WIPRO, etc. Under those circumstances, it would suffice if Section 65B cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; takes out a knife from his pant pocket; pounces upon the deceased, who is squatting on the floor; holds him tight by his neck; saws his neck with the knife and stabs him repeatedly until he is satisfied that the man is dead. At 11:40:16 hours the accused wipes the knife and keeps it in his pant pocket. He comes out of the Locker room and picks up the jewels from the display desk and puts it in his bag. At 11:41:27 hours, the accused walks out of the shop. 37. The entry of Budharam (PW-6) at 11:36:08 hours has not been noted by Kala (PW-23) in her report Ex. P-10 and that was also one of the reasons for us to summon Budharam (PW-6). In Ex. P-10 report Kala (PW-23) has recorded as follows: On playing back the recording continuously on the incident date 14.4.2012, the sequence of events that transpired (murder incident) are tabulated sequentially. From the above it appears that the expert had concentrated only on the murder incident and had not thought fit to record the entry of Budharam (PW-6) into the shop. Hence the failure to refer to the entry and exit of Budharam (PW-6) by Kala (PW-23) in Ex. P-10 is not fatal to the case of the prosecution. 38. After playing the video and exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or under Section 404, Indian Penal Code. The basis for the argument was that in order to constitute 'robbery' all the elements of theft must exist and one of the ingredients of that offence, as defined in Sec. 378 of the Penal Code is that the property stolen must have been in the possession of a person . Now, in a case such as the one at hand it is difficult to hold precisely whether the articles were stolen before the murder or after it. In case the properties were taken by Jamnadas only after Mr. Raghuram breathed his last and was a dead body, could it be said that the offence committed was theft ? This argument at first appeared attractive (and we may also say that in another set of circumstances it may possibly be given effect to) but on a little reflection we find that where murder and robbery are committed in the course of the same transaction by the same person, the offence would fall under Sec. 392 and not under Sec. 404. In that context, the word person cannot be so narrowly construed as to exclude the dead body of a human being who was killed in the course of the same transaction in which theft was committed. The matter would be different if a thing is stolen fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an individual artificially against the law of nature. In this case, fortunately for the State and unfortunately for the accused the entire occurrence has been captured by the CCTV cameras installed in the shop and recorded in the DVR (MO-2) on account of which we were able to view it. Normally a scene of crime is re-created in the Court by the oral account of witnesses and the Court draws necessary inferences by a process of deduction from proved facts. Very rarely the Courts get the opportunity to view the actual commission of an offence as in this case. 44. We asked the following question to ourselves:-- Had we not viewed the video recordings but proceeded to decide the case with other evidence, would we have suffered the same impact ? The obvious answer is in the negative. Therefore, we are of the opinion that the sentence should not be decided based on the impact the video recordings had on us. Sans the video recordings, we are afraid we would have treated this case as another case of murder for gain, not warranting death penalty. In Sangeeth v. State of Haryana, (2013) 2 SCC 452, the Supreme Court has discussed the cases in which death penalty was confirmed/reversed and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentence imposed thereon are set aside. (b) The conviction of the appellant/accused under Sections 449, 392 and 302 IPC is confirmed. (c) The sentence imposed for the offences under Sections 449 and 392 IPC are also confirmed. (d) The death sentence imposed for the offence under Section 302 IPC is set aside. Instead, the appellant/accused is sentenced to life imprisonment. We direct that the accused should serve a minimum period of 25 years in prison during which period he will not be entitled to any statutory remission or commutation. (e) We specifically hold that the sentences imposed for the offences under Sections 449, 392 and 302 IPC shall run consecutively and not concurrently. The appellant/accused shall first undergo the sentence for the offence under Section 449 IPC and on expiry of the said period, he shall serve the sentence imposed for the offence under Section 392 IPC and on expiry of the same, he shall serve the life imprisonment. (f) With regard to the disposal of Digital Video Recorder (MO-2), which contains the entire occurrence in this case, we are of the view that it should be handed over to the Tamil Nadu State Police Museum for preserving it as an artifact. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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