Mr. P.N.Prakash And Mr B.Pugalendhi, JJ. CRL.A[MD].No. 415 of 2016. D/d. 06.03.2019.Electronic evidence – In absence of certification under section 65B CCTV footage cannot be admitted in evidence – However, Section 65B does not bar dock evidence under section 9 conduct evidence under section 8 of the Act and evidence aliunde.
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Murugan v. State, (Madras)(DB) (Madurai Bench) : Law Finder Doc Id # 1394291
2019 CriLJ 2527
MADRAS HIGH COURT
(DB) (Madurai Bench)
Before:- Mr. P.N.Prakash And Mr B.Pugalendhi, JJ.
CRL.A[MD].No. 415 of 2016. D/d. 06.03.2019.
Murugan – Appellant
Versus
State, rep by The Inspector of Police, Koodankulam Police Station, Crime No.39/2015, Tirunelveli District – Respondent
For the Appellant :- Mr.A.Thiruvadikumar [Appointed as Amicus Curiae, vide order dated 20.02.2019].
For the Respondent :- Mr.K.K.Ramakrishnan Additional Public Prosecutor.
IMPORTANT
Electronic evidence – In absence of certification under section 65B CCTV footage cannot be admitted in evidence – However, Section 65B does not bar dock evidence under section 9 conduct evidence under section 8 of the Act and evidence aliunde.
Indian Penal Code, 1860 Section 302 Indian Evidence Act, 1872 Section 28 Murder – Conviction – Sustainability of – Held, intention of the appellant was not to commit the murder for gain – His intention was only to teach a lesson to Esakkiammal for abusing him and for character assassinating his wife, when he had married against all odds – A little greed would have crept in his mind on seeing the ornaments worn by Esakkiammal and believing that imitation chain was of gold, he would have taken it alone – Appellant has not even suggested to [PW-14] and I.O that the extra judicial confession was obtained under coercion – He has not even challenged the voluntariness of it – The facts stated by him find corroboration from independent sources – No reason to reject the extra judicial confession given by the appellant to [PW-14] – Thus, the Judgment of conviction recorded by the Trail Court warrants no interference – Conviction upheld.
[Paras 10 to 14]
Cases Referred :
Anthony D’souza v. State of Karnataka 2003 (1) SCC 259
Anvar P.V v. P.K.Basheer [2014 (10) SCC 473]
Mani Kumar Thapa v. State of Sikkim [2002 (7) SCC 157
Sahadevan v. State of Tamil Nadu [2012 (6) SCC 403]
JUDGMENT
Mr. P.N.Prakash, J. – The appellant is the sole accused in S.C.No.596 of 2015, on the file of the IV Additional District and Sessions Judge, Tirunelveli. The Trial Court framed as many as three charges, as detailed below.
Charge
Penal Provisions
1
447 IPC
2
302 IPC
3
397 IPC
2. By Judgment dated 22.09.2016, the Trial Court convicted the accused and sentenced him, as detailed below:-
Section of Law
Sentence of imprisonment
Fine amount
302 IPC
To undergo imprisonment for life.
Rs.1,000/- in default to undergo rigorous imprisonment for six months.
447 IPC
To undergo rigorous imprisonment for one month.
No fine
379 IPC
To undergo rigorous imprisonment for one month.
No fine
The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.
3. The facts of the case lie a narrow compass:-
The appellant, a shepherd and native of S.S.Puram in Tirunelveli District, was tending cattle in Kerala. He came to his native village on 12.02.2015, for harvesting the crops in his lands and stayed in his natal home with his brother and sister. At the request of his brother-in-law – Krishnan, he took around 300 goats to the lands belonging to his family for grazing. The goats strayed into the fields of the deceased – Esakkimmal and devoured the crops. On coming to know of this, the deceased saw the appellant on 25.02.2015, near the village temple and berated him for allowing his cattle to destroy her crops and made snide remark about the character of his wife.
3.1. It is alleged that on 26.02.2015, at 11.00 AM, when Esakkiammal was watering the crops in her lands, the appellant is said to have caused her death by belabouring her with a sickle. Thereafter, the appellant is said to have taken a chain belonging to her and had left the village on the same day for his work place in Kerala. Since Esakkiammal did not return home, Devika [PW-1], the daughter of the deceased and the other relatives, namely, Arumugam [PW-2] and Ramiah [PW-3] started searching for her and ultimately, on the same day, around 10.00 PM, they went to the fields and found the body of Esakkiammal. On the complaint [EX-P1] given by Devika [PW-1], Rajaram [PW-17] registered a case in Crime No.39 of 2015, for the offence under Section 302 I.P.C., against unknown accused, at 11.00 PM, on 26.02.2015 and prepared the printed First Information Report, [EX-P18], which reached the jurisdictional Magistrate at 06.45 AM, on 27.02.2015, as could be seen from the endorsement made therein.
3.2. The investigation of the case was taken over by Joseph Jatson [PW-18], [who, hereinafter, shall be referred to as “the I.O”]. The I.O came to the place of occurrence and in the presence of witnesses – Kumaresan [not examined] and Murugan [PW-4], prepapred the Observation Mahazer [EX-P2] and Rough Sketch [EXP19]. From the place of occurrence, he also seized bloodstained soil [MO-6] and soil without bloodstain [MO-7] under the cover of mahazar [EX-P3]. Jeyaraj [PW-10], the police photographer, took photographs of the body, which were marked as MO-9 series. From the place of occurrence, he recovered a spade [MO-15] and a sickle [MO-5] under the cover of mahazer [EX-P3] in the presence of witnesses – Murugan [PW-4] and Kumaresan [not examined]. The I.O conducted inquest over the body in the presence of panchayadars and the inquest report was marked as EX-P20. Thereafter, he forwarded the dead body for postmortem.
3.3. Dr.Rajesh, [PW-10], conducted autospy on the body of the deceased and in his evidence as well in the postmortem certificate, has given his opinion as to the cause of death, which is as under:-
“The deceased would appear to have died of shock and haemorrhage due to cut injury to the neck”.
3.4. The police were clueless for some time and the break through came when the appellant surrendered before Jawan [PW-14], the Village Administrative Officer, Koodangulam, on 04.03.2015, around 05.00 PM and gave an extra judicial confession [EX-P4]. After recording the confession, Jawan [PW-14] produced him before the I.O, who placed him under arrest and recovered 28 gram chain [MO-4] from his pocket under the cover of mahazer [EX-P6] in the presence of Jawan [PW-14] and Arul Lingam [not examined]. Thereafter, based on the disclosure statement made by the appellant, the I.O seized a sickle [MO-11], a Cycle [MO-12], a full hand shirt [MO-13] and a lungi [MO-14] under the cover of mahazer [EX-P8]. Based on the disclosure statement made by the appellant, the police went to Muthoot Fin Corporation, Nagercoil, on 05.03.2015 and examined the CCTV footages and recorded the statement of Prince [PW-8] and Mery Pravija [PW-9], the jewel appraiser with regard to the chain, that was recovered from the appellant. The police collected the CCTV footages from Muthoot Fin Corporation for investigation purpose. Thereafter, the I.O altered the case into one under Sections 447, 341, 397 and 302 IPC and prepared the alteration report [EX-P21].3.5. After completing the investigation, the I.O filed final report in PRC.No.36 of 2015 before the learned Judicial Magistrate, Valliyoor. On the appearance of the accused, the provisions of section 207 of the Code of Criminal Procedure, 1973 were complied with and the case was committed to the Court of Session in S.C.No.596 of 2015 and made over to the learned IV Additional District and Sessions Judge, Tirunelveli, for trial. The Trial Court framed charges against the accused, as detailed in Paragraph No.1, supra. When questioned, the accused pleaded “not guilty”. To prove the case, the prosecution examined 18 witnesses, marked 21 exhibits and 15 material objects. No witness was examined on the side of the accused nor any document marked. When the accused was questioned about the incriminating circumstances appearing against him, he denied the same. The accused gave certain explanations, about which, we will discuss a little later. The Trial Court, after considering the evidence on record and hearing either side, by Judgment dated 22.09.2016, convicted the accused, as detailed in Paragraph No.2 supra. The appellant is, therefore, before this Court with this Criminal Appeal.
4. Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent.
5. At the outset, we can safely conclude that the prosecution have proved beyond cavil that the death of Esakkiammal was homicidal and that it had occurred on 26.02.2015. The prosecution case rests on the extra judicial confession [EX-P4] that was given by the appellant to Jawan [PW-14] and the recovery of imitation chain [MO-4], worn by Esakkiammal.
6. Mr.A.Thiruvadikumar, learned counsel for the appellant, contended that the extra judicial confession [EX-P4] alleged to have been given by the appellant is a weak piece of evidence and much reliance cannot be placed on it. In support of his contention, he placed reliance on the Judgment of the Supreme Court in Sahadevan and others v. State of Tamil Nadu [2012 (6) SCC 403], which will be discussed in the later portion of the Judgment. After giving a brief biography of himself, the appellant has narrated the entire occurrence in his extra judicial confession [EX-P4], which runs to about seven pages and therefore, it would suffice, if the free English translation of the relevant portions alone are extracted hereunder:-
“On 15.02.2015, I went to the house of my younger sister – Melangottai @ Esakkiammal, W/o.Krishnan @ Kittu, situated opposite my house and as my sister’s husband – Krishnan @ Kittu went to remove the hair of goats in the house of one Kalai, who is the son of my maternal uncle at Sankaneri. I went to graze 300 goats of Krishnan on that day at the farm belonging to us situated at Sevalvilai near Koodankulam. At that time, I let the goats to graze in the northern side of the field, bean farm of Esakkiammal, W/o.Palvannan of S.S.Puram.
………………
On 25.02.2015, about 4.00 p.m., I was returning from the garden to the house. When I was coming near Esakkiamman temple on the western side of our village, Esakkiammal saw and scolded me in filthy language; she said, “You are not answering for making your goats graz in my garden?’. I told her immediately that I will pay whatever the amount she wants, for which, she said, “Have you earned money by pimping your wife in Kerala to others?” and immediately, I thought of killing her. But as it was a road, I controlled myself. I decided to kill Esakkiammal, who made degrading remarks about my wife and in the morning on 26.02.2015. I went to garden in my sister’s husband by Krishnan’s bicycle and saw as to whether the above said Esakkiammal was coming to the farm. She did not come. I was there till 11.00 a.m., and after irrigating the farm, I came to my house and took my lunch and took the cycle and went to the above said Sevalvilai farm. About 2.00 p.m., Esakkiammal was tending to the chilli plants in her farm. With the intention to kill her, I entered into her farm and went near her and on seeing the sickle in my hand, she tried to go to the jasmine farm of Ramiah. Immediately, I went near her quickly and told her to stop and then she turned back and saw me. Immediately I said, “you have talked about my wife in filthy language and hence you should not be alive, let you die and get lost with this” and I hacked her on her right neck with the sickle. She fell down. As she was groaning, I knew that she has not died and I thought that if she does not die, then, the matter will come out and hence, I hacked her again on the same place. She fell on the ground in a pool of blood. She was dead. I saw a gold chain around the neck. I took the chain.
In the preamble portion of the statement, he has said that his was a love marriage and after marriage, he started living in Kerela to eke out his livelihood.
From there, I took a bus at 3.45 PM., went to Aanjugram and Nagercoil and got down at Nagercoil Chettikulam Junction and went to Muthoot Fin corp Bank about 5.00 PM and gave the chain for pledging. The person there checked it and returned saying that it is an imitiation jewel. I got it back and put it in my underwear pocket and went to Vadasery and from there, I went to Kollam in a bus and got down there and took an Auto and went to my house. Then, I felt guilty about the incident and was in mental agony. I feared that I may be caught by the police and so, I was in severe mental agony. Then, I left the place and out of fear that if it is known to police, they will beat me, I appear before you and tell you everything”.
7. The learned counsel for the appellant showed the photographs of Esakkiammal and submitted that the jewels worn by her are intact and therefore, the prosecution case that the appellant had removed only one chain and that too, an imitation chain [MO-4] appears unbelievable. Though, at the first blush, this argument did sound attractive, but, the fallacy in it came to light on reading the evidence of Prince [PW-8] and Mery Pravija [PW-9], the officials of Muthoot Fin Corporation.8. Mery Pravija [PW-9], in her evidence, has stated that she is working as an Appraiser in Muthoot Fin Corporation, Nagercoil; on 26.02.2015, around 05.00 PM, a person came to the branch with a chain and asked for jewel loan; she made him sit and asked him to give his identity card; he shoed his identity card; she tested the chain and found that it was an imitation chain [MO-4]; when she told him, he stated that the chain [MO-4] was given by his mother-in-law and sought apology and left; on 05.03.2015, the police brought that person and the CCTV footages in the Bank were played, which showed that that it was the appellant, who had come on that day; she identified the imitation chain [MO-4], that was produced by the appellant on that day. In the cross-examination, it was suggested to Mery Pravija [PW-9] that the appellant did not come to Muthoot Fin Corporation on 26.02.2015, which suggestion she denied. However, when the appellant was examined under section 313 of the Code of Criminal Procedure, 1973 with regard to the evidence of Mery Pravija [PW-9], he has stated that he went to Muthoot Fin Corporation, but, wanted to take a loan by pledging his gold ring.
9. Prince [PW-8], the Manager of Muthoot Fin Corporation, Nagercoil, has stated that on 26.02.2015, around 05.00 PM, a person came to the branch and wanted a jewel loan; he referred him to the appraiser – Mery Pravija [PW-9]; thereafter, she [PW-9] told him that the chain brought by that person was an imitation jewel; and so, she returned it. Prince [PW-8] has further stated that all these events have been captured by the CCTV Cameras installed in the branch and he permitted the police to run through the same, when they came with the appellant on 05.03.2015. He also gave a copy of the CCTV footage in a CD form, which has been marked as MO-8, subject to objections raised by the defence with regard to Section 65B of the Indian Evidence Act, 1872, [for brevity, ‘the Act’].
10. The learned counsel for the appellant placed reliance on the Judgment of the Supreme Court in Anvar P.V v. P.K.Basheer and others [2014 (10) SCC 473] and submitted that without a certification under Section 65-B of the Act, CCTV footages cannot be admitted in evidence. It is true that in the absence of a certification under Section 65-B of the Act, CCTV footage cannot be admitted in evidence. However, Section 65-B of the Act does not bar dock evidence under Section 9 of the Act, conduct evidence under Section 8 of the Act and evidence aliunde. Viewing the CCTV footages and coming to a conclusion in the mind will not be hit by Section 162 Cr.PC. Both Prince [PW-8] and Mery Pravija [PW-9] have stated that the police brought the appellant to their office on 05.03.2015. They played the CCTV footage recorded on 26.02.2015. All of them viewed the CCTV footage and looked at the face of the appellant and the face of the person in the CCTV footage and came to the irresistible conclusion that the appellant was the person in the CCTV footage. Thereafter, Prince [PW-8] and Mery Pravija [PW-9] have deposed in the Court about these facts and identified the appellant and the person, who came on 26.02.2015 to pledge imitation chain [MO-4]. Perhaps, fearing for this incriminating material, the appellant changed track in the examination under Section 313 Cr.PC by stating that he came to Muthoot Fin Corporation on 26.02.2015, but, wanted to pledge only a gold ring and not a chain. Had he suggested to Prince [PW-8] and Mery Pravija [PW-9] that he wanted to take a loan by pledging his gold ring, then, the issue would have been different. However, the appellant suggested to Prince [PW-8] and Mery Pravija [PW-9] that he did not come to Muthoot Fin Corporation on 26.02.2015 at all. This, in our considered view, is a very powerful incriminating circumstance. The appellant did not take a stand that he has a twin brother – a look alike – and the person in the CCTV footage could have been him.
11. In Anthony D’souza and others v. State of Karnataka [2003 (1) SCC 259] and Mani Kumar Thapa v. State of Sikkim [2002 (7) SCC 157], the Supreme Court has held that a false explanation given by the accused when questioned under section 313 of the Code of Criminal Procedure, 1973 will provide the missing link in a case predicated on circumstantial evidence.
12. As regards the contention of the learned counsel for the appellant that the appellant would have taken the real ornaments instead of fake one, we are of the view that the intention of the appellant was not to commit the murder for gain. His intention was only to teach a lesson to Esakkiammal for abusing him and for character assassinating his wife, when he had married against all odds. A little greed would have crept in his mind on seeing the ornaments worn by Esakkiammal and believing that the imitation chain [MO-4] was of gold, he would have taken it alone. Otherwise, there is no reason for him to go to Muthoot Fin Corporation on the same evening, namely, on 26.02.2015, at 05.00 PM, to convert it into money. Unfortunately, the imitiation chain turned out to be his waterloo.
13. Coming to the Judgment relied upon by the learned counsel for the appellant in Sahadevan, [supra], it is true that an extra judicial confession is a weak piece of evidence and the Supreme Court has laid down certain precepts, which are as under:-
“(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution.
(ii). it should be made voluntarily and should be truthful.
(iii). it should inspire confidence.
(iv). An extra-judicial confession attains greater credibility and evidentiary value it it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v). For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi). Such statement essentially has to be proved like any other fact and in accordance with law”.
14. The appellant has not even suggested to Jawan [PW-14] and the I.O that the extra judicial confession was obtained under coercion. In other words, he has not even challenged the voluntariness of it. Coming to the truthfulness of it, the facts stated by him find corroboration from independent sources. For example, he has stated that after the incident, he borrowed a sum of Rs. 200/- from Velmurugan [PW-6] and went by Cycle with Kumar [PW-7], who dropped him in the bus stand to go to Kerala. Both Velmurugan [PW-6] and Kumar [PW-7] have given evidence on this aspect. It is common knowledge that Nagercoil is en route to Kerala from Koodangulam, where the appellant boarded the bus. He reached Nagercoil at 05.00 PM in the evening and went to Muthoot Fin Corporation to raise money by pledging the chain [MO-4]. Therefore, we have no reason to reject the extra judicial confession [EX-P4] given by the appellant to Jawan [PW-14]. Thus, the Judgment of conviction recorded by the Trial Court warrants no interference.15. In the result, the Judgment dated 22.09.2016 made in S.C.No.596 of 2015, on the file of the IV Additional District and Sessions Judge, Tirunelveli, is confirmed and the Criminal Appeal is dismissed.
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