How to get away with murder

CHENNAI: It would not be a hyperbole to state that a police charge sheet can be a playbook for ‘getting away with murder’. The conviction rate of just about 50 per cent including in grievous crimes like murder because of ‘perfunctory or designedly defective investigations’ (in the words of the Supreme Court) by the police means many murderers are roaming free in the society or innocent persons get arrested and are made to undergo trial. In either case, the grief of the victims’ families remains unaddressed.

Criminal lawyers point out the practice of ‘standard charge sheets’ in the police system, wherein either deliberately or by mechanical work, charge sheets are abounded with loopholes, resulting in embarrassment for police. But, what is an embarrassment for police is lethal for society.

Take, for instance, the case of a TCS employee who stabbed his female colleague to death in Perungudi in April 2014, for allegedly turning down his proposal. The accused in this case, K Venkatachalapathy was arrested for murder in 2008, in which he stabbed an 18-year-old college student to death, by barging into her house in Erode, according to news reports at that time. He was acquitted in the case and six years later, he committed another murder.

In the criminal justice system, the police are the kingpins, the Madras High Court had observed, noting that not even the court would interfere with the investigation and that victims of crime are dependent on the investigation agency for justice. “A fair justice can be done, only on the materials placed before the court by the investigating agency,” the court had remarked in a judgment in 2020, where it came down hard on lazily done police investigations.

In the past two months, the Mahila court in Chennai had given the final verdict in seven murder cases, four of which have ended in acquittal. The conviction in all three cases involved the husbands of the deceased. It is unlikely that the city police would take up these cases for investigation again. But the victims — a four-year-old orphan, who was murdered two months into her adoption, and a young widow who left behind her two children — are robbed of justice. DT Next presents what transpired in the trial, which led to the acquittals.

Who killed Baby Clara?

She was named Mridhula Maria Clara by her adopted parents. Within two months of her adoption from an orphanage in Madurai, Clara was taken to a hospital on July 7, 2016, by her father, where she was declared dead. The post-mortem confirmed it was a murder. The child was beaten, suffocated and compressed on the neck, due to which she lost her life, according to the autopsy.

On June 8, 2017, eleven months after the murder, Chintadripet police arrested the adoptive father, X Gerard, an advocate. The police contended that he was upset as the child had delayed speech problems for which he got her treated at a hospital in Nungambakkam. As there was no improvement in her speech, he felt cheated for adopting a ‘defective’ child and murdered her, the police contended.

Gerard argued that he was away from home and received a call saying that his child was found unconscious near the bathroom, after which he rushed home and took her to the hospital.

When the trial ended a month ago, Sessions judge TH Mohammed Farooq acquitted Gerard, as the prosecution neither submitted any proof of the child having speech problems nor did produce the call detail records (CDR) of the man they accused, which would have proved his presence at the house.

“On careful examination of the evidence on record, it would be established that the investigation had been done irresponsibly and carelessly,” the sessions judge stated and went on to chide the investigating officers for not collecting any evidence from the house, despite the post-mortem confirming the child was murdered. “No fingerprint expert or forensic expert was used to collect any evidence. If a proper investigation was done at the inception itself, using forensic scientific methods and fingerprint experts, vital material would have been available to fix the right person. At least it would have helped to exclude the presence of other intruders,” the judge noted.

Inspector Sivamani who took over investigations on August 4, 2016, did not do anything for the next nine months until he was transferred. He deposed before the court that he tried to examine Gerard and his wife, a professor of law, several times, but they were not available.

Terming the Inspector’s investigation as irresponsible and unscrupulous, the judge wondered whether it would be difficult to ascertain the whereabouts of a practising advocate and a law college professor. “The casual manner of investigation raises doubt. It would further lead to the inference that no incriminating material was collected,” the court noted.

Inspector Sahadevan who took over after Sivamani arrested Gerard the same day he began further investigations in the case (July 8, 2017), did not submit to the court on what basis he arrested the accused nor did submit any incriminating evidence to prove his contention. The address in the charge sheet, mentioning the place of recovery of the pillow allegedly used to smother the child was different from the residential address and elicited a stinging response from the court. The prosecution did not provide any evidence to prove the motive. “Doctors from the hospital have not deposed about any such treatment given to the child. No witness is available to prove that the child suffered from speech defects,” the court noted.

Gerard argued in the court that he had made allegations of corruption before the anti-corruption police against the top officials of Tamil Nadu law university because of which a false case was foisted against him. DVAC FIR states that Gerard made his complaint on January 1, 2017. Seven months later, he was arrested for the murder. DVAC eventually booked former vice-chancellor, Vanangamudi and five others based on the complaint. But, who killed Clara?

Young widow,kids denied justice

In July 2014, a young widow was murdered in her residence in Velachery, leaving her two children, aged 9 and 4 orphaned. Last month, a city Mahila court acquitted the man arrested for her murder, depriving the children, still minors, of justice.

On July 13, 2014, Velachery police arrested 22-year-old J Penoj and his wife, a minor, for the murder of 27-year-old Saraswathy at her residence in Tamil Nadu Housing Board (TNHB) colony in Velachery, ten days ago. They were accused of scheming the murder to get away with Saraswathy’s gold jewellery. Saraswathy’s husband died five years before her murder.

According to the prosecution, Saraswathy who worked in a beauty parlour attended a party at a hotel on Race Course Road in Guindy, where her ‘would-be murderers’ saw her wearing more gold ornaments. Penoj’s wife, a tattoo artist, got friendly with Saraswathy and on July 2, 2014, the couple got invited to Saraswathy’s house and strangulated her to death. Saraswathy’s children were with her in the care of her sister, Chitra, as she had to go to work in the evenings.

The next morning, when Chitra came home to collect uniforms for the children, she saw Saraswathi lying on the floor unconscious and moved her to the hospital, where she was declared dead. While the family suspected it to be suicide, an autopsy proved it to be a case of murder after which Velachery police altered the sections and began investigations.

The prosecution case was purely on circumstantial evidence, but the police did not make any effort to prove them, the court noted. Firstly, the police did not produce any witnesses from the hotel where the accused allegedly noticed the deceased wearing enormous gold jewellery to prove that the accused had prior knowledge of the jewellery in her possession.

Further, police contended that the deceased’s sister, Chitra had seen the accused couple when she went to pick up the children on the day of the murder and also relied on the call detail records of the deceased and the juvenile to prove that several calls were made from the juvenile’s phone, the location of which was near the deceased’s home, establishing the last seen theory.

The court, however, considered the defence counsel’s arguments and noted that Chitra did not make any such statement in her initial complaint in the FIR about witnessing the accused near her sister’s residence, which makes her evidence highly doubtful. The prosecution did not produce the call detail records of the accused Penoj and did not provide any explanation why it is not produced either. “A police constable who obtained the CDRs stated that he obtained the CDR for the mobile number of Penoj too. That being so, the suppression of the CDR of the accused raises suspicion about the prosecution case,” sessions judge TH Mohammed Farooq noted.

The court also pointed out that though the TNHB colony, in Velachery, is a not-so-isolated area, no witness from the locality was examined. There was no reliable witness either for the recovery of gold ornaments, supposedly stolen from Saraswathy. “The prosecution has failed to establish all circumstances relied upon them to prove the guilt of the accused,” the court noted and acquitted Penoj.

The sessions judge, however, held that the state has a responsibility to protect its citizens and while it has failed to prove the guilt of the accused beyond a reasonable doubt, it has the duty to rehabilitate the kids of the deceased. The court directed the District Legal Services Authority, Chennai to conduct an enquiry and award adequate compensation to the minor children, out of the fund created under the victim compensation scheme.

Tackling hostile witnesses

To tackle the issue of hostile witnesses, the court had suggested and sought a report from the government as to the action plan to implement the provision for using audio-video electronic means during the investigation and its fate is still unknown.

It appears, even now, the statements under Section 161(3) Cr.P.C. are recorded in the police station, through a constable, in the old method, that too, without even examining the witnesses. There are incidents where witnesses have come before this court and filed affidavits that they have not given any such statements and we are also witnessing such affidavits often.

— Justice B Pugalendhi, Madras High Court (order on ‘Perfunctory investigations’ by police dated September 8, 2020)

‘Utter confusion in prosecution case’

“Unfortunately, there seems to be utter confusion in the prosecution case,” the City Mahila court order dated June 9, 2022 states while acquitting the two accused in the brutal murder of a 48-year-old woman, P Dhanalakshmi, a resident of Makkees garden, near Thousand Lights.

Her decomposed body was found on November 3, 2016, near the house of one of the accused. Her hands and legs were tied with plastic tape and her mouth was gagged. The prosecution case was that the deceased objected to one of the tenants in her house bringing strangers home and warned her that she would evict her, after which the woman, along with her male friend murdered her.

From manipulation of records and case properties to not providing any independent witness in the case, Thousand Lights police did not help themselves before the court.

The investigating agency has tried to fabricate a case that the accused purchased a mobile phone from the money obtained by selling the gold stolen from the victim, the court noted from the contradicting seizure documents produced by the police. “Further, all witnesses for the confession and recoveries being close relatives of the deceased raises serious doubts,” the court noted and wondered why the police could not secure any independent witnesses and the IO did not even submit that he summoned witnesses and they refused.

The latches and flaws found in the investigation would reveal that the accused could have been taken into custody much earlier and the documents were fabricated later according to the convenience of the investigating officer, the court held and stated that the prosecution has miserably failed to establish and prove the arrest, confession and recovery of material objects beyond reasonable doubt and acquitted the accused.