5 What started off as a simple case of “boy missing” evolved into a case of “kidnapping for ransom, murder and concealment of evidence” and that is why, charges for the offences under Sections 364-A, 302 and 201 IPC were framed by the Trial Court. This case is predicated on circumstantial evidence and therefore, we are required to bear in mind the line of enquiry on this aspect as enunciated in the Constitution Bench judgment of the Supreme Court in Govinda Reddy vs. State of Mysore – AIR 1960 SC 29 “……..”
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LINE OF DEFENCE
12 The learned defence counsel further contended that even according to the case of the prosecution, Premkumar and the accused were friends and they were almost of the same age group; Premkumar was not a small boy; the photographs [MO-16 series] clearly show that he was tall and athletic in appearance; the postmortem report [EX-P3] also states “body of a well nourished male lying on his back”. Therefore, Mr. Hameed Ismail posed, “Will the accused kidnap their own friend for ransom and even before making a demand for ransom, murder him, bury him, burn his clothes and thereafter, late in the evening of 05.05.2013, call his father at 7.15 p.m. and demand Rs.1.50 crores as ransom without anything more?”
13 There appears to be much force in the submission of the learned counsel. We carefully analysed the evidence on record and found that in the complaint [EX -P.1] given by Gajendra Raja [PW-1], there is absolutely no reference about the ransom of Rs. 1.50 crores. Had there been a demand of ransom, Gajendra Raja [PW-1], would have informed this immediately to his brother – Suriyanarayanan [PW-2] to alert the local police. Gajendra Raja [PW-1], in his examination-in-chief, has not stated that he informed his brother – Suriyanarayanan [PW-2] about this, whereas, Suriyanarayanan [PW-2] has stated that Gajendra Raja [PW-1] called him around 08.00 p.m., on 05.05.2013 and told him that there was demand of ransom. Had that been so, he need not have waited till the next day for Gajendra Raja [PW-1] to come and give the complaint at 11.00 a.m., and instead, he himself could have informed the police about the kidnapping of Premkumar and demand of ransom, so that effective steps could have been taken to identify the culprits. According to Gajendra Raja [PW-1], when he returned the call, the person, who attended the call, merely demanded Rs.1.50 crores for releasing Premkumar and he [PW-1] disconnected the phone call in tension. However, in the complaint [EX-P1] that was lodged on 06.05.2013, as stated above, there is no mention of he getting a missed call, he returning the call and the demand of ransom by the person at the other end.
TAMPERING IN THE CDR
16. Mr. K.K. Ramakrishnan, learned Additional Public Prosecutor, contended that the police have obtained the CDRs of the mobile phone of Premkumar, Gajendra Raja [PW-1] and Sakthikumar [A-2], vide EX-P33 to EX-P47, which show that a call has been made from the mobile phone of Gajendra Raja [PW-1] to Premkumar’s mobile at 19.52 hours on 05.05.2013, vide [EX-P35]. A reading of EXP35 shows that Gajendra Raja [PW-1] has spoken to his sonPremkumar in his mobile number, 94864 88386, for 76 seconds on 05.05.2013 at 19.52 hrs., which is 1 minute and 16 seconds. Even according to Gajendra Raja [PW-1], the person to whom he spoke, merely demanded Rs.1.50 crores as ransom, but, did not identify himself as Sakthikumar [A-2]. We carefully perused the CDRs [EX-P33 to EX-P47] and found that they have not been proved in a manner known to law and there appears to be signs of tampering, about which, we have alluded to in para 20, infra.
PROCEDURE TO OBTAIN CDR
17. In our State, a procedure has been put in place for obtaining the CDRs by the police for the purpose of investigation, according to which, the Investigating Officer should make a request to the Cyber Cell Unit, attached to the Office of the Superintendent of Police by furnishing the mobile number for which the CDRs are sought. On the approval of the Superintendent of Police, the Cyber Cell Unit would make a request to the Nodal Officer of the Service Provider. The Nodal Officer would send the CDRs in MS-Excel format to the Superintendent of Police, whose office, in turn, would forward it to the Investigating Officer. As and when the CDRs are required for the purpose of producing them in a Court of law, the Nodal Officer would normally give the CDRs containing the call details in PDF format with his certification, because, MS-Excel format can be tampered with. The Nodal Officer will be examined as a witness, through whom, the CDRs will be marked.
MARKING OF PHOTOCOPIES & POWER OF I.O COLLECT CDR – EXPLAINED
18 In this case, we are not adverting to the absence of certification under Section 65-B of the Indian Evidence Act, 1872, in Exs.P.33 to P.47 because, that, by itself, is a separate subject. In this case, the photocopies of the CDRs [EX-P33 to EX-P47] have been marked through Thangagurunathan, Sub-Inspector of Police, [PW-27], Cyber Cell Unit, attached to the Office of the Superintendent of Police. Photocopies are secondary evidence of the contents of the original. For a party to lead secondary evidence, the absence of the original must be accounted for and the conditions set out in Section 65 of the Evidence Act must also be satisfied. In the case at hand, we find that Section 65, ibid, has been observed only in its breach. Consequently, in the light of the judgment of the Supreme Court in J.Yasodha vs. K.Shobha Rani [(2007) 5 SCC 730] , these documents could never have been received in evidence. In his evidence, Thangagurunathan, SubInspector of Police, [PW-27], has stated that at the request of the Inspector of Police, Rajapalayam Police Station, he conducted investigation and ascertained from the Service Providers about the names of the subscribers of the mobile phones in question and also obtained the call details records. Thangagurunathan [PW-27] had assisted the Investigating Officer to collect the evidence, which he is legally bound to, because, as a police officer, he has all the powers under Chapter XII Cr.P.C. and in exercise of these powers, he is perfectly justified in collecting the evidence from the Service Provider and submitting the same to the Investigating Officer. In other words, as Sub Inspector of Police attached to the Cyber Cell, Thangagurunathan [PW-27] has the power under Sections 160, 161 and 162 Cr.P.C. to call for information from anyone, including Mobile Service Providers. That apart, under Section 69 of the Information Technology Act, a duty is cast upon the Mobile Service Providers to give the required information to the police. If an ordinary person were to ask for the CDRs containing call details of another, the Service Provider is not bound to furnish the same. But, when the police requisition this information, they are bound to furnish the same. Since every police officer has a statutory power to investigate a crime, the information of call details in CDR form has to be furnished by the Service Provider on demand. So far so good. But, the materials so collected should have to be translated into legal evidence in a Court of law, because, the result of investigation of a Police Officer is not legal evidence, [See Vijender vs. State – (1997) 6 SCC 171].
AUTOPSY REPORT HAS TO PROVE BY THE SURGEON OR ASSISTED HIM AND NOT BY I.O
19 To expatiate this further, in a murder case, the Investigating Officer would request the police Surgeon to conduct postmortem and collect the postmortem report. The postmortem report will have to be proved by examining the autopsy Surgeon or someone who had assisted him during autopsy. However, the Investigating Officer cannot mark the postmortem report and prove it in his evidence. Such a privilege is available only in respect of certain documents referred to in Sections 292, 293 and 294 Cr.P.C. The CDRs do not fall within this category.
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SECTION 391 Cr.P.C
22. We did not want the accused to take advantage of the remissness on the part of the Investigating Officer in properly collecting the CDRs and for the failure of the prosecution in translating it into legal evidence, we were ready to afford an opportunity to the prosecution to adduce additional evidence on this aspect under Section 391 Cr.P.C. Therefore, we asked Gandhi [PW-33], Inspector of Police, who was present in the Court as to in which format, the CDRs were received from the Service Providers, for which, he replied that the Cyber Unit had supplied them the CDRs in MS-Excel format. We further asked him that when he had attested the CDRs (Exs.P.33 to P.47] as true copies, he must be having their originals in the case diary. We also told him that if he has the PDF format of the CDRs with him in the case diary, we can summon the Nodal Officer for proving the same. Gandhi [PW-33] replied that the CDRs are not available in the case diary, since the occurrence had taken place in the year 2013. Therefore, we are rendered helpless and hence, constrained to hold that the photocopies of the MS-Excel format of the CDRs (Exs.P.33 to P.47), have not been proved in a manner known to law.
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HOW TO PROVE THE OWNERSHIP OF VEHICLE – EXPLAINED
31. The learned Additional Public Prosecutor contended that there is not much difference between the Registration Nos.TN 67 J 7130 and TN 67 J 7913 and Premkumar’s father Gajendra Raja [PW-1] has stated that the motorbike bearing Regn. No. TN 67 J 7913 belongs to his son. We are unable to countenance this vain argument of the learned Additional Public Prosecutor, because, nobody would have wanted Sivaranjith [A-1] to state in the extra-judicial confession about Premkumar’s correct motorbike number. Had Sivaranjith [A-1] merely stated that Premkumar came by a motorbike, that would have been sufficient. Whereas, in the extra-judicial confession [EX-P11], it is recorded that Premkumar came by Hero Honda Splendor Plus bearing Regn. No.TN 67 J 7130. In the same confession statement, it is also recorded that after the murder, they abandoned the Hero Hondo Splendor Plus motorbike near Chevakkadu in Thendral Nagar. It is further stated in the extra-judicial confession [EX-P11] that, again, they came to Chevakkadu in Thendral Nagar on 05.05.2013 in search of Premkumar’s motorbike, but, did not find it. Then, how is it that suddenly when the accused were taken into police custody on 03.06.2013, they confessed that the vehicle was kept behind Rajapalayam Taluk Office? The seized vehicle bears the Regn. No. TN 67 J 7913 and that has been marked as M.O.5. The best way to prove the ownership of the motorbike is to mark its R.C. book, which has not been done in this case.
HIGH COURT SUO-MOTU MARKED TWO OTHER CASES OF ACCUSED INVOLVED
32. While we were perusing the records, we noticed that the accused herein were shown as accused in two other cases. This aroused our inquisitiveness. On further scrutiny of the records, we found that a case in Rajapalayam North P.S. Cr.No.343 of 2013 under Section 397 IPC and a case in Keelarajakularaman P.S. Cr. No.153 of 2013 under Section 392 IPC were registered against the accused. Both these police stations are within Rajapalayam Municipality. Therefore, we summoned M. Thinakaran, Inspector of Police, Rajapalayam North P.S. who was the Investigating Officer in Cr.No. 343 of 2013 and examined him under Section 391 Cr.P.C. as C.W.1. The certified copy of the complaint and the FIR in Rajapalayam North P.S. Cr.No.343 of 2013 was marked as Ex.C.1 and the certified copy of the charge sheet was marked as Ex.C.2 series.
DOUBTING THE EXTRA-JUDICIAL CONFESSION
35 We are aware that we cannot make any comment or give a finding with regard to the said two cases. Thus, from Exs.C.1 to C.3 and the evidence of Thinakaran (C.W.1), it is seen that the accused were allegedly involved in two robberies on 16.05.2013, viz., one at 12.30 p.m. and the other at 8.30 p.m. However, in the extra-judicial confession [EX-P11] which was allegedly recorded on 17.05.2013, there is absolutely no reference to these two robberies. The learned Additional Public Prosecutor contended that perhaps, the accused wanted to confess only the heinous crime of murder and did not want to confess the simple crimes of robbery. Even if we were to accept this submission of the learned Additional Public Prosecutor, we find that in the police confession that was recorded by Gandhi [PW-33] on 17.05.2013, there is a reference to these two robberies. It may be pertinent to state here that for the robberies which have taken place on 16.05.2013, the FIRs have been registered only on 17.05.2013 by those two police stations. Be it noted that a confession is acted upon by the Courts because it presupposes that the offender wants to unburden himself of his feeling of guilt out of penitence. To say that, they were selectively remorseful by confessing only to the murder which they had allegedly committed on 04.05.2013 and not to the robberies which were allegedly committed by them on 16.05.2013 [a day before giving the confession] defies credulity.
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PROCEDURE TO TAKE & COMPARE CHANCE FINGER PRINTS
38. It is pertinent to state here that after the arrest of the accused, the alleged recoveries of beer and brandy bottles were made by the police and on the same day, Muruganandham [PW-13], Inspector of Police, Finger Print Bureau, lifted finger prints from the bottles and the Investigating Officer took finger prints of the accused. Normally, chance finger prints of unknown accused will be lifted from the place of occurrence and after the accused is arrested, his finger prints will be taken by the Investigating Officer and sent to the Finger Print Bureau, where, comparison will be done and report given.
SECTION 310 Cr.P.C – JUDGES VISITED SOC
44. In order to satisfy ourselves about the topography of Councillor Nagaraj’s house, exercising powers under Section 310 Cr.P.C., we made a spot inspection along with the police, learned Additional Public Prosecutors and the learned defence counsel to Councillor Nagaraj’s house on 02.04.2019 (Tuesday). We had with us photographs in M.O. 13 series with us. We found terrace houses on either side of Councillor Nagaraj’s house. The parapet wall of the terrace of Councillor Nagaraj’s house was only about 2 ½ feet. Anyone sitting and consuming liquor in his house terrace could be easily seen by the neighbours. As already stated, the house has solid iron gates and it is not in a dilapidated condition which could be easily used for shady purposes.
EXPLANATION IN CROSS-EXAMINATION REJECTED
50. The learned Additional Public Prosecutor contended that even if this Court jettisons the extra-judicial confession [EX-P11], the conviction can be based on the police confession leading to recovery of the dead body. To rebut this contention, Mr. Hameed Ismail took us through the admissible portion of the police confession [EX-P22] of Sivaranjith [A-1] and submitted that according to the police, Sivaranjith [A-1] was arrested on 17.05.2013 and his confession was recorded on the same day, whereas, Ex.P.22 shows that the Inspector of Police and Arivazhagan [PW-22] have signed the confession only on 18.05.2013. In this regard, the defence have put a question to Arivazhagan [PW-22] in the cross-examination and he has admitted that he has signed it on 18.05.2013. The Investigating Officer has tried to explain it by saying that it was by mistake. But, how could two persons commit the same mistake is the question, for which, there is no answer. That apart, in the cross-examination of Arivazhagan [PW-22], he has been confronted with his Section 161(3) Cr.P.C. statement, wherein, it is stated that he handed over the accused to the police at 16.30 hrs. on 14.05.2013. For this, Arivazhagan [PW-22] has stated that an error would have crept in while writing. The same question has been put to Gandhi [PW-33] who has accepted that Arivazhagan [PW-22] told him that the accused were produced before the police on 14.05.2013, but, tried to explain it by saying that it was due to a mistake in pronunciation of the date. The Section 161(3) Cr.P.C. statement is in Tamil. The pronunciation of 14 is totally different from the pronunciation of 17 in Tamil and so, we are unable to appreciate this explanation of Gandhi (P.W.33), Investigating Officer.
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SLEEPING TABLET IN VISCERA
56. The learned Additional Public Prosecutor submitted that in the extra-judicial confession [EX-P11], it is stated that the accused and Premkumar had liquor and sleeping pills were mixed in Premkumar’s drink; this stands corroborated by the presence of Diazepam in the Toxicology Report [EX-43]. Based on this, the learned Additional Public Prosecutor submitted that this Court should infer that the prosecution has proved the case to the hilt.
TABLET STRIP NOT RECOVERED
57. It is true that Toxicology Report [EX-P43] shows the presence of Diazepam, a psychotropic substance, in the visceral organs of Premkumar. In the confession, it is merely stated sleeping pills were mixed with liquor and given to Premkumar. But, no diazepam tablet or at least an empty strip of the said tablet was ever recovered, though it is the case of the prosecution that they recovered empty liquor bottles from Councillor Nagaraj’s house. Perhaps, the accused and Premkumar were drug addicts and Diazepam was their staple drug. Had it been the case of the prosecution that the trio went on an overdose of diazepam, resulting in Premkumar dying, to cover up which, Premkumar’s body was buried, then, the detection of Diazepam in the visceral organs of Premkumar may assume significance and the prosecution story could be believed. But, that is not the prosecution story. The prosecution story is puzzlingly convoluted. The prosecution cannot now substitute a new story for sustaining the conviction. We must remind ourselves that this is a case hedged on circumstantial evidence. It is the duty of the prosecution to establish the chain of circumstances leading to an irresistible inference of the guilt of the accused. We find that the prosecution’s story is riddled with inconsistencies and exaggerations. Hence, it would be wholly unsafe to sustain the conviction on the basis of the evidence presented to us in this case.
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HIGH COURT CONCERNED LOOSE STANDARDS IN EXTRA-JUDICIAL CONFESSION
59. When time and again, the Supreme Court has held that an extra-judicial confession is a weak piece of evidence even against the maker, the stretching of it to fasten criminal liability on the co accused who allegedly remained silent when his compatriot was confessing, is indeed a grey area. But, in Akhlaq (Akhlaq vs. State of Uttar Pradesh – (2009) 17 SCC 221), the extrajudicial confession was made by Babu to his friend Mahesh Chandra [PW-6] in the presence of Akhlaq. Mahesh Chandra [PW-6] testified about it in the Trial Court. Here, the extra-judicial confession by Sivaranjith [A-1] is before Arivazhagan [PW-22], Village Administrative Officer, who has recorded it. Definitely, Mahesh Chandra [PW-6] in Akhlaq (supra) and Arivazhagan (P.W.22) in this case, cannot be placed on the same pedestal. Section 164 Cr.P.C. lays down strict procedural rules which a Judicial Magistrate is required to follow before recording a judicial confession. Section 164 Cr.P.C. does not contemplate chorus confessions by more than one accused. The Judicial Magistrate will have to record the confessions of more than one accused in a given case separately after explaining to each one of them, the consequences of giving the confession. When rules for recording a judicial confession are so strict, can we afford to have loosened standards for the Village Administrative Officers for recording joint extra-judicial confessions?
Acquitted accused.
PARTY: Sivaranjith vs. State rep by the Inspector of Police, Rajapalayam South Police Station, Crime No.306 of 2013 – CRL. APL [MD] Nos. 264, 352 of 2016 – 30.04.2019 – CORAM: THE HON’BLE MR. JUSTICE P.N. PRAKASH AND THE HON’BLE MR. JUSTICE B. PUGALENDHI.
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/700187
