AI Drafter 
TaxTMI 
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TaxTMI 
2016 (1) TMI 1509
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....d style of 'Balaji Pawn Brokers' at No. 1, 13th 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 ....
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....alked out with the jewels in the display panel. Though the face of the assailant was identifiable from 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 le....
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....ue Incised wound 3 x 0.5 x 0.5 cm on left side of back of head 2 cm behind left mastoid process. (8) Incised wound 2.5 x 1 x 0.5 cm on the back of outer aspect of left hand below the 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....
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....8) took the accused to the house of Jaishankar (PW-13) and in the presence of Mareeswaran (PW-14) and Manoharan (not examined), recovered a blue colour jeans pant (MO-3), said to have been worn by the accused at the time of the incident and a knife (MO-5), said to have been used for the commission 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 c....
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....0:39 to 11:41:18 The stranger is seen entering the inside shop owners area and picking the jewels from the display panel and putting some of the jewels from display in his bag CH2 11:41:23 The stranger is seen walking out of the shop after picking the jewels CH2 11:41:27 The stranger is seen walking out of the shop after picking and packing the jewels CH1 11:40:36 to 11:53:15 The shop owner/victim attempts to knock the door from inside 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-S....
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....y, in the mind of trial Judges about their power to view such evidences. There will be instances where, by the time the case comes up for trial in one court, the electronic record would have had a natural death for want of proper storage facilities in the Court property room. To obviate these difficulties, we direct that, on a petition filed by the prosecution, the Judicial Magistrate, who receives the electronic record, may himself view it and take a back up, without disturbing the integrity of the source, in a CD or Pendrive or any other gadget, by drawing proceedings. The 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 Suprem....
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....n. Hence, on 22.12.2015, we passed orders under Section 367 and 391 Cr.P.C. for summoning Bhudharam (PW-6) and for production of the accused on 12.1.2016. 10. On 12.1.2016, the accused was produced under escort and Bhudharam (PW-6) was also present. In the presence of the accused, his advocates, the Public Prosecutor, Investigating Officers, and officials of the Registry, we viewed the DVR (MO-2) recordings in open Court. After viewing the footage, Bhudharam (PW-6) was examined in chief by the Public Prosecutor, and cross-examined by Mr. M. Jagadeesan, the learned Counsel for the accused. Thereafter, we questioned 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.....
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....hen we viewed the recordings, one minute comprising sixty seconds does not pass in a wink. In our opinion, being with a person for one full minute is sufficient to register his face and remember it. We have no material to infer that Budharam (PW-6) is a person of very poor memory. In the cross examination, his capability to remember the face of a person if seen once was not challenged. Therefore, we reject this argument and accept the evidence of Budharam (PW-6) that he saw the accused in the shop of the deceased on that fateful day. The CCTV footage corroborates his evidence to the hilt. 15. Apart from the CCTV recordings, 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 th....
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.... Court has deprecated this practice of defence counsel not cross-examining the prosecution witnesses immediately and recalling them months later for the purpose of cross-examination (See: Vinod Kumar v. State of Punjab (2015 (1) Scale 542)). We are conscious of the fact that such techniques are adopted with impunity either to win-over the witness by intimidation or bribery or to take advantage of his memory lapse. We find, except confusing him on the aspect of recovery, the defence was unable to make any serious dent in the kernel of his evidence, viz., that the accused was permitted to live in the house as his sister-in-law was to marry 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 ....
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....ence, with the help of Balakumar (PW-9) under the cover of mahazar (Ex. P-2). MO-2 was sent by the Court to the Forensic Sciences Department and the evidence of Mrs. Kala (PW-23), Scientific Officer and her report (Ex. P.10) graphically explains the concatenation of events that took place in the shop on the fateful day. Together with the report, individual snapshots of the footage are also annexed. On a mere perusal of the snapshots it can been seen that a person wearing horizontally striped T-Shirt is found talking to the person in the counter; attacking him; and leaving the shop. The T-Shirt worn by the assailant, which is visible in the snapshots 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 whil....
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....e Digital Video Recording (MO-2) itself to the Tamil Nadu Forensic Sciences Laboratory for the computer experts to view the recordings and give a report of the events in the nature of Ex. P-10. Similarly, the morphological study of the photographs of the accused that has been obtained by the Police from two sources, by Pushparani (PW-24), Scientific Officer, and her Report (Ex. P-12) stands accepted by us to infer that the assailant seen in the CCTV footage is the accused. It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The 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 th....
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....ho were then asked to write down, soon afterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragi-comedy were completely eliminated from the memory of a number of witnesses." Hence, the Professor concluded: "We never know whether we remember, perceive, or imagine"." It is axiomatic that CCTV footage does not suffer such ills and human frailties, and they are indubitably superior to human testimony of facts. 29. Confession of the accused, which 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 gadge....
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....lace on the road. Can the police seize the DVR and deprive him of it ? The owner may permit the police to transfer the data, but he may not be willing to give possession of his gadget, free of cost. We are aware that under the Tamil Nadu Financial Code there are provisions for defraying expenses incurred during investigation under the following heads of account: "Investigation Charges Head of Account: For Districts: "2055-00-Police-109 District Police-1 Non Plan AA - District Police, 05 Office Expenses, 06 Investigation Charges, (DP Code 2055 00-109AA 0565)" For Chennai City: "2055-00 - Police-108 State Head Quarters Police-1 Non Plan AA - Commissioner of Police, 05 Office Expenses 06 Investigation Charges, (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....
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....ighspeed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network." 2(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally 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 comput....
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....mputer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act." The above decision does not in any way enhance the case of the defence inasmuch as, in the last line, the Supreme Court has stated that, if an electronic record as 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 inf....
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....cases of issuance of certified copy of public document under section 76 of the Indian Evidence Act, 1872. It is not necessary in every case to examine the person who had given the 65B certificate as witness before the trial Court, unless the Court suspects the integrity of the electronic record that is produced as evidence. One should bear in mind that a digital image cannot be manipulated easily. Every digital image has a meta data stored in it. The meta data are structured as coded data, which gives every image its own character. It should be remembered that the certification under Section 65B is not for the truthfulness of the content of the computer generated record, but is essentially related to the working condition of the computer from where the stored record is produced in a tangible 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 lame....
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.... gave standard replies, 'Lie'. 39. Even to our naked eyes it was crystal clear that it was the accused, wearing the horizontally striped T-Shirt (MO-4) and jeans pant (MO-6) entering the shop of the deceased; talking to him; and after entry and exit of Budharam (PW-6), when the deceased goes into the Locker room, the accused enters the Locker room and indiscriminately cuts and stabs the deceased. Thereafter the accused comes out of the Locker room and gathers the jewels from the display panel and walks out of the shop. We are of the opinion that there is no further proof required in this case to hold the accused guilty of the offence. 40. Coming to the offence under Section 404 IPC, we are afraid that we cannot sustain the conviction. Section 404 IPC reads as follows: "404. Dishonest misappropriation of 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 wi....
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....nishable under Section 392, Indian Penal Code, and not under Section 404 of the Code." Hence, the conviction of the appellant/accused under section 404 IPC and the sentence imposed thereon cannot be sustained and the same are liable to be set aside. 41. Now we have to address the unenviable aspect of the case viz., the sentence. Mr. M. Jagadeesan, learned Counsel appearing for the appellant/accused fervently and passionately submitted that the accused is an engineering graduate and there are possibilities of reformation. He also submitted that this is not "Rarest of Rare case" for sentencing the accused to gallows. 42. Per contra, Mr. S. Shunmugavelayutham, learned Public Prosecutor submitted that the diabolic manner in which the accused had committed the offence requires no mercy. He submitted that the accused has come armed with 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 r....
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....as committed may shake our conscience. But there is no material produced by the prosecution to show that the criminal is a menace to the Society. The learned Public Prosecutor contended that the accused was caught subsequently by the Public when he attempted to do similar offence and that is sufficient to show that he is a menace to the Society. In B.A. Umesh v. High Court of Karnataka, almost a similar situation arose where the accused was found guilty of rape, murder and robbery. Two days after the incident in that case, the local public caught him while he was attempting to escape from the house where he made a similar attempt to rob and assault a lady. The accused in that case was sentenced to death by the Supreme Court. This case has been discussed in Sangeeth v. State of Haryana (supra) at para 40 and the Supreme Court has doubted the procedure 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 conclusio....