TaxTMI 
TaxTMI 
2016 (1) TMI 1509
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....3th Street, Sakthi Nagar, the place of occurrence. (b) On 14.4.2012, the deceased Gunaram opened the shop around 8.00 a.m. At about 9.00 a.m. Dhanaram (PW-1) came there and after being there for some time, he left for other work. When he returned to the shop around 12.00 noon, he was shocked to see his younger brother Gunaram lying dead in a pool of blood. PW-1 raised an alarm, hearing which Sahadevan Prohith (PW-2), Varadarajan (PW-3) and Selvi (PW-4), who are all adjacent shop owners, came to the spot. On information, the Police also arrived soon. (c) On the complaint (Ex. P-1) given by Dhanaram (PW-1), John Arumairaj, (PW-28) Inspector of Police, T-4 Maduravoyal Police Station registered a case in Cr. No. 491 of 2012 at 2.00 p.m on 14.4.2012 for the offences under Section 302 read with 380 IPC. The complaint (Ex. P-1) and the FIR (Ex. P-17) reached the jurisdictional Magistrate on 14.4.2012 at 7.00 p.m., as could be seen from the endorsement 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 i....
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....m the CCTV footages, yet his name and other particulars were not known to anyone. The Digital Video Recorder (MO-2) was sent to the Court of Judicial Magistrate No. II, Poonamallee and the same was forwarded to the Tamil Nadu Forensic Science Department on 7.5.2012. (i) The Inspector (PW-28) despatched the body through Ansari (PW-19), Police Constable to the Kilpauk Medical College Hospital, where Dr. Rathinamalini (PW-16) examined the body and made entries in the Accident Register (Ex. P-6) and sent the body to the mortuary. (j) At the mortuary, the Inspector (PW-28) conducted an inquest over the body of the deceased Gunaram and prepared the Inquest report (Ex. P-21). (k) On the requisition of the Police, Dr. Selvakumar (PW-21) conducted autopsy on the body of the deceased Gunaram. In his evidence and in the Postmortem Certificate (Ex. P-7) he has stated as follows: "INJURIES: (1) Oblique incised wound seen over lower part of front and 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 poin....
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....webspace of left thumb and left index finger 2 cm below the wrist. (9) Oblique incised wound 1.5 x 0.3 x 0.5 cm on outer aspect of left thumb in the back of proximal phalynx. (10) Incised wound 1 x 0.3 x 0.3 cm on back of left wrist. (11) Incised wounds 2 x 0.4 x skin deep over front of right index finger in proximal phalynx (12) Incised wound 0.5 x 0.3 x skin deep over front of middle of right middle finger (13) Scratch abrasions 4 x 0.2 cm seen on front of upper part of neck. (14) Scratch abrasions 3 x 0.3 cm seen on front of upper part of neck. (15) Scratch abrasions 0.5 x 0.3 cm seen in left side of chin. (16) On dissection on the head; Dark Red contusion 5 x 4 cm x 0.5 cm on back of head in the occipital region." As to the cause of death, which is relevant under Section 7 of the Evidence Act, Dr. Selvakumar (PW-21) has stated that 'the deceased would appear to have died of shock and haemorrhage due to cut injury 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 bania....
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....mmission of the offence, under the cover of Mahazar (Ex. P-5). He also seized the slippers (MO-6) worn by the accused under the cover of the mahazar (Ex. P-3). (q) PW-28 requisitioned the services of Bala Arumugam (PW-20) to take photographs of the accused (MO-11 series). On 23.5.2012, the photographs that were taken were sent to the Tamil Nadu Forensic Science Department through the Court for comparison with the CCTV footage recorded in the shop. After expiry of the period of police custody, the accused was sent back to judicial custody. (r) Kala (PW-23), Scientific Officer, Tamil Nadu Forensic Science Department examined the CCTV footages recorded in the Digital Video Recorder (MO-2) and submitted a detailed report dated 23.7.2012, which is marked as Ex. P-10. Kala (PW-23) in her evidence and report (Ex. P-10), has stated as follows: "c) On playing back the recording continuously on the incident date 14/04/2012, the sequence 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....
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....e the safety locker with pool of blood several times and finally collapses at 11:53:15 CH4 d) it was also observed that no voice/audio had been recorded in this incident e) The recording continuously goes on till the arrival of the police and thereafter (13:30 Hrs)." (s) Pushparani (PW-24), Scientific Officer, Anthropology Division of Tamil Nadu Forensic Science Department compared the images in the CCTV footages with the photographs of the accused taken by Bala Arumugam (PW-20) and gave her report (Ex. P-12). Pushparani (PW-24) in her evidence and report (Ex. P-12) has stated as follows: "Item 5 We have carefully examined the face of the male individual wearing the T-Shirt in the Video footage (Item-5) at the time between 11.20 and 11.41 with a male individual seen in items 1, 2 and 3 using morphological study. OBSERVATION The asymmetric eye brows, the deep root of the nose and the broad bridge of the nose seen in the face of the male individual in items 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 ind....
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....e back up can be kept in safe custody by wrapping it in anti static cover and should be sent to the Sessions Court at the time of committal. The present generation of Magistrates are computer savvy and they only require legal sanction for taking a back up. They can avail the service of an expert to assist them in their endeavour. Recently the Supreme Court in Shamsher Singh Verma v. State of Haryana, 2015 (12) Scale 597, has held that CD is a 'document' within the meaning of Section 3 of the Indian Evidence Act, 1872. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, the Supreme Court has held that tape records of speeches are 'documents' as defined in Section 3 of the Indian Evidence Act, 1872. This Judgment has been relied upon in Shamsher Singh Verma's case (cited supra). Therefore, we hold that articles like Memory Card, Hard Disc, CD, Pen-drive, etc., containing relevant data in electronic form are '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 'prov....
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....estioned the accused under Section 313 Cr.P.C. on the incriminating evidences in the DVR recordings and also on the evidence given by Bhudharam (PW-6). The reply of the accused was a wholesale denial. After hearing the argument of either side, we reserved orders. Discussion of Evidence 11. Dhanaram (PW-1) deposed that his deceased brother Gunaram and he were into Pawn Broking and Jewellery business and were running 'Balaji Pawn Broking' at No. 1, 13th Street, Sakthi Nagar; that on 14.4.2012 the deceased Gunaram opened the shop around 8.00 a.m. and around 9.00 a.m. he went to the shop and was there for some time, and later went to Sriram Finance, Virugambakkam; and that when he returned back to the shop, he found his brother on the floor in a pool of blood. When he raised an alarm, people from the neighbouring shop viz., Sahadev Prohith (PW-2), Varadarajan (PW-3), Selvi (PW-4), Kumar (PW-5) and Ashok (PW-7) gathered. 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 Cov....
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....dings, there are two other powerful incriminating circumstances that stares at the face of the accused. "(a) The fact that the accused was apprehended by the public on 12.5.2012 when he attempted to rob one Chandraprabha and was handed over to the Police has been established through the evidence of Sahadevan (PW-27), Inspector of Police, Pallikaranai Police Station. During interrogation by Sahadevan (PW-27), the accused spilled the beans and disclosed his involvement in the present case. This is a fact which was hitherto unknown to Sahadevan (PW-27), and therefore, the discovery of the fact that a murder case is under investigation by the Maduravoyal Police, based on the information provided by the accused, is relevant and admissible under Section 27 of the Indian Evidence Act, 1872, though the confession is, perse, hit by Section 25 of the Indian Evidence Act, 1872. (b) The next incriminating circumstance is 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-1....
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....y him; and that the Police came twice to his house and recovered jewels, T-Shirts, Jeans pant and knife. Therefore, we do not find his evidence to be unworthy of acceptance. 17. That apart, the seizure of the Gold Covering Chains (MO-1 series) and T-Shirt (MO-4) has been established through the evidence of Sahadevan (PW-27), Inspector of Police Pallikkaranai Police Station corroborated by the independent witness Balaji (PW-22). The gold covering chain (MO-1) was identified by Dhanaram (PW-1). It may be necessary to recall the evidence of Bawarlal (PW-11) who helped a distraught Dhanaram (PW-1) for stock taking. After viewing the CCTV recordings, Dhanaram (PW-1) had told Bawarlal (PW-11) that the assailant had taken away only the gold covering jewellery. As to the shortage of 48 grams of gold jewellery, he has told PW-11 that he has no idea and that only his deceased brother knew about all this. 18. It is trite 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 40....
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....s matches with the T-Shirt (MO-4) recovered at the instance of the accused. After the arrest of the accused, Bala Arumugam (PW-20) took photographs of the accused and the same were sent to the Tamil Nadu Forensic Sciences Department through the Court, which were scientifically compared with the images of the assailant in the CCTV recordings by Pushparani (PW-24), Scientific Officer, Anthropology Division. 22. Mr. M. Jagadeesan, learned Counsel submitted that the Police have violated various provisions of the Police Standing Orders while taking photographs of the accused in custody, and therefore no reliance should be placed on the report of the experts. 23. Assuming for a moment that the photographs were taken in breach of certain procedural law, can it in any way vitiate the action ? In American jurisprudence, illegally collected evidence is best described as "fruit of the poisonous tree" and American 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....
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....e Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted. Scientific and Legal Aspects of CCTV Recordings 26. As a prelude, we feel it will be appropriate to quote the following passage from the book "Law of Evidence" by the celebrated author Vepa P. Sarathi (6th Edition, page 208). We quote, "The law, it is said, walks a respectable distance behind science, but courts try to keep abreast. The criminal is quick to use science to commit ingenious crimes, and so the police and the courts should be no less innovative; and courts 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) enco....
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....hich is generally called the "Queen of Evidence" is kept out of judicial reach in India, if it has been given to a Police Officer, because our Police have still not come out of their colonial mind set. Therefore, Indian Police have to perforce search for evidence, other than Police confession, for bringing the guilty to justice. Fortunately today, Police will soon be relieved of hunting for other materials on account of the Information Technology revolution and the free availability of gadgets like CCTV cameras, pen cameras, mobile phone cameras, et.al, in the hands of common citizen. The Government of Tamil Nadu by G.O. Ms. No. 113 Municipal Administration and Water Supply (MA-1) Department, dated 14.12.2012 has framed rules titled The Tamil Nadu Urban Local Bodies (Installation of Closed Circuit Television Units in Public 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 relevan....
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.... (DP Code 2055 00-108AA 0565)" G.O. Ms. No. 633, Home (Police-I) Department, dated 29.7.2003 has empowered the Superintendents of Police to disburse Rs. 500/- and the Zonal Inspectors General of Police to disburse Rs. 2,000/- towards Investigation Charges. In our opinion, this is pittance of an amount and requires an immediate revision. We direct the Home Secretary and Finance Secretary of the State of Tamilnadu, and the Director General of Police to pass appropriate orders within two months from the date of receipt of copy of this Judgment to increase the disbursal powers of the Superintendents of Police to Rs. 5,000/- and that of the Zonal Inspectors General of Police to Rs. 15,000/- towards investigation charges. It is the sovereign duty of the State to protect the life and 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 ....
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....ernally in the memory of the computer". "2(r) "electronic form", with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device." "2(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche." 32. In this case, in the shop of the deceased Ganaram, four CCTV cameras were installed at vantage positions, viz., one at the entrance; two inside the shop at different 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 in....
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.... such is used as primary evidence under Section 62 of the Indian Evidence Act, 1872 the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act. In this case, DVR (MO-2) which contains the information is before the Court. There may be occasions when in large establishments like Railways, Airports where large number of cameras are installed and the information is stored digitally in huge servers, it may not be possible for the Police to seize the server and send them either to the Forensic Science Department or produce them before the Court. Only 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 Expert....
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....e form for the Court to inspect. Defence will always complain of manipulation, but Courts can reject fanciful objections bearing in mind the principle underlined in Section 114 of the Indian Evidence Act, 1872. De omnibus dubitandum (doubt everything) philosophy may be a road to scientific discoveries, but not for judicial enquiries, where perfect proof is utopian. The celebrated Jurist late lamented Nani Palkhivala commented, "Our Legal System has made life too easy for criminals and too difficult for law abiding citizens. A touch here and push there and India may become ungovernable under 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....
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....f property possessed by deceased person at the time of his death.--Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine, and if the offender at the time of such person's decease was employed by him as a clerk or servant, 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 i....
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.... a weapon, which shows his predetermination to commit the offence of murder. He also submitted that, had the accused committed the offence of murder while committing robbery, the situation would have been different. In this case, the accused was talking with the deceased for a very long time in the shop and when the deceased went into the locker room, he followed suit and pounced upon the unwary victim and started cutting his neck and stabbing, after tightly holding him. The victim was not even in a position 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....
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....ocedure of relying upon a subsequent incident which has not been proved. So to in this case, though we have relied upon the evidence of the Inspector of Police, Pallikkaranai to the effect that the accused was caught by the Public and handed over to him, the trial in the later case is still pending and therefore we cannot come to the conclusion that he will be a menace to the Society in the absence of any other material and therefore we hold that the death sentence imposed cannot be sustained. 45. However, 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....