9911796707
TMI Blog2016 (1) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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, [ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made therein. (d) In the 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). L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d side of the neck measuring 11 x 3 cm., the left 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 cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the neck.'. (l) After postmortem, Ansari (PW-19) handed over the body of the deceased 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 stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of events that transpired (murder incident) are tabulated sequentially: Time in Hours on 14.4.2012 Events that transpired 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms 1, 2 and 3 are well correlated with the corresponding features seen in the face of the male individual in item 5. OPINION The male individual seen in items 1, 2 and 3 could possibly have belonged to the male individual seen in item 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 'documents' as defined under Section 3 of the Indian Evidence Act, 1872, albeit, marking them as material objects. After all, nomenclature cannot have the effect of altering the characteristics of an object. The words 'proved' and 'disproved' in section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thered. It is not the case of the Prosecution that these witnesses had seen the assailant. PW-1 Dhanaram has further stated that the Police immediately played the Video Recorder and in the footage played he saw the accused. He also identified the 32 pieces of Gold Covering Chains (MO-1 Series) while in the witness box. 12. The fact 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of 32 pieces of Gold Covering Chains (MO-1 series) and horizontally striped T-Shirt (MO-4) by PW-27 from the residence of Jaishankar (PW-13) at the instance of the accused. At this juncture it may be relevant to discuss the evidence of Jaishankar (PW-13). PW-13 has deposed that he is a Police Constable in Nungambakkam Police Station 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 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite that the disclosure leading to discovery of a fact in one case is relevant under Section 27 of the Indian Evidence Act, 1872 and admissible, even though it has been made during the investigation in another case (See: State of Rajasthan v. Bhup Ram, 1997 (1) Supreme Today 405). Hence, the disclosure statement and recovery of the covering jewellery (MO-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, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rican Courts frown upon them (See: Nardone v. United States, 60 S. Ct. 266). The 94th Law Commission Report suggested to the Parliament to bring in similar provisions into our Legal System, which was not accepted by the Parliament. In State of M.P. through CBI, V. Paltan Mallah ((2005) 3 SCC 169 : 2005 (1) CTC 457 (SC)), the Supreme Court has discussed the 94th Law Commission 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts should always encourage the police to do so and admit the evidence collected by any innovative method. The law courts can play an important role by (1) taking expert evidence to see whether the best scientific methods have been used, (2) by the Judge scrutinising the evidence carefully, and (3) encouraging the scientists, when the evidence is reliable, by giving judicial recognition to his methods." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Buildings) Rules, 2012, the preamble of which reads as under: "As a measure of crime control, the Government felt that Closed Circuit Television Units (CCTV) should be installed in all public buildings, commercial establishments and places where large gatherings of public congregate, which will be made mandatory as a condition for issuing licence under relevant provisions of Municipal Corporation/Municipal Rules." By virtue of these Rules, now it has become mandatory for Public 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.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d property of the citizens and also to bring the guilty to justice. The property of a total stranger cannot be taken away by the Police without paying reasonable compensation on the premise that they need it for investigation purposes. Hence, whenever the police seek to take away the gadgets and equipment belonging to a third party, they shall pay the cost without demur to the person from whom the property is taken away. Only then, will people come forward to assist the Police in the investigation of an offence. It is time we usher in a fair, ethical and moral procedure in policing vis-à-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 camer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t angles; and one inside the locker room, which has a huge safe vault. The images captured by the four cameras were transferred to a Digital Video Recorder (DVR) (MO-2), which is a rectangular box, through wires. DVR has a computer programmed circuit to receive the images from the four cameras and convert them into electronic form in binary and store them in the hard disk. The software is so programmed that it can not only receive and store, but also play back the images on a screen, be it a monitor, Television screen, or Cinema Screen. The information so stored are not tangible information for the Court to inspect and see with its naked eyes. The DVR is an electronic record within the meaning of Section 2(t) of the Information Technology Act, 2000, as it stores 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obviate this difficulty and to satisfactorily meet the objections relating to admissibility of secondary evidence in electronic form, the Parliament thought it fit to provide a certification under Section 65B. Even if the certification is not obtained at the time of collection of evidence, yet, at the time of trial, evidence aliunde can be given through the person who was in charge of the Server, in terms of Section 65B of the Act, as held by a Division Bench of the Delhi High Court in Kundan Singh v. State MANU/DE/3674/2015. The Police can also requisition the services of Computer Experts and Experts from the Forensic Sciences Department to retrieve data from a huge server through USB drive or CD drive or any other gadget for the purpose of investigation and production of the 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the present Constitutional Set up." It is time that we come out of anachronistic mind set of suspecting and doubting every act of the Police, lest the justice delivery system should become a mockery. 36. The CCTV recordings show the accused wearing a horizontally striped T-Shirt (MO-4) entering the shop at 11 hours 19 minutes and 57 seconds (11:19:57 hours) and is talking to the deceased Ganaram. While the accused and the deceased are seriously discussing, at 11:36:08 hours Budharam (PW-6) enters the shop and after talking to the deceased, he leaves the shop at 11:37:15 hours. Thereafter the accused and the deceased resume their discussion. At 11:38:21 hours the deceased enters the Locker room and is taking some jewels from the vault. At 11:38:59 hours the accused enters the Locker room; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvant, the imprisonment may extend to seven years." Section 404 IPC falls within the sub-Chapter 'Of Criminal misappropriation of property' under the main Chapter XVII - 'Of Offences against Property'. From a reading of Section 404 IPC, it is clear that the ingredients of it cannot fit within the definition of the word "theft" or "robbery". This section applies to a situation where a person in a sly manner appropriates to himself a property in the possession of the deceased person at the time of his death. We are fortified in our view by the Division Bench Judgment of the Madhya Pradesh High Court in Jamnadas Parashram v. The State of M.P., AIR 1963 M.P. 106, wherein in paragraph 34 it is held thus, "34. An argument arose during the course of the hearing whether the facts constituted an offence under Section 392 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". N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to resist or struggle as he was a small man, when compared to the accused, whose frame is gigantic. The accused could have caused injuries and left the deceased at that, but instead, he started sawing his neck and stabbing him till the deceased fell motionless. If robbery had been the intention, the accused could have easily bolted the locker room from the outside and decamped with the jewellery from the show case of the shop. The manner in which the offence was committed shows the blood thirst in the accused. He also submitted that the accused was again caught when he made a similar attempt on another lady and only during investigation of that case his involvement in this case came to light. Therefore the accused will be a menace to the society. 43. We have carefully considered the rival submissions. We have no doubt in our mind that all forms of homicide is abhorring because it stifles the life span 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find 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, we are of the view that the sentences imposed on the accused should run consecutively and not concurrently. Recently, the Constitution Bench of the Supreme Court in Union of India v. Sriharan @ Murugan, (2015 (13) Scale 165) has held that the Court, while sentencing an accused to imprisonment, can direct that he should suffer incarceration for a minimum period without statutory remission or commutation. 46. In the result, "(a) The conviction of the appellant/accused under Section 404 IPC and the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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