Madras High Court
Subha @ Subhakar vs State Rep By on 18 June, 2025
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.A. Nos.906/2019, 881/2019 & 279/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 24.04.2025
PRONOUNCED ON 18.06.2025
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
Criminal Appeal Nos.906 of 2019, 881 of 2019 & 279 of 2020
Subha @ Subhakar .. Appellant in Crl.A. No.906/2019 – A1
Premkumar
Mathivannan .. Appellants in Crl.A. No.881/2019 – A2
and A3
Anthony Simson .. Appellant in Crl.A. No.279/2020 – A4
Vs.
State rep by
Inspector of Police
Pollachi West Police Station
Coimbatore District
Crime No.168/2014 .. Respondent in all Criminal Appeals
Prayer : Criminal Appeals filed under Section 374(2) of the Criminal
Procedure Code against the judgment of conviction and sentence passed by the
V Additional District Judge, Coimbatore dated 28.11.2019 made in S.C.
No.120 of 2015 and set aside the same.
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For Appellant : Mr.R.John Sathyan, Senior Counsel
For Mr.B.Sundarapandian
For Respondent : Mr.S.Raja Kumar
Additional Public Prosecutor
COMMON JUDGMENT
N.SENTHILKUMAR, J.
Challenging the judgment of conviction and sentence passed by the
learned V Additional District and Sessions Judge, Coimbatore dated
28.11.2019 made in S.C. No.120 of 2015, the accused A1 to A4/appellants
herein, have preferred these criminal appeals.
2. The learned V Additional District and Sessions Judge, Coimbatore in
S.C. No.120 of 2015, has convicted the appellants and sentenced them as
follows:-
Accused/Appellant Offence Sentence
A1/ Section 364 IPC 7 years rigorous impris-
onment and a fine of
Appellant in Crl.A. Rs.5,000/-, in default to
No.906 of 2019 undergo simple impris-
onment for two months
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One year rigorous im-
prisonment and a fine of
Section 342 IPC Rs.1,000/-, in default to
undergo simple impris-
onment for one month;
Life imprisonment and a
fine of Rs.5,000/-, in de-
Section 302 IPC fault to undergo simple
imprisonment for two
months
One year rigorous im-
prisonment each and a
fine of Rs.1,000/- each,
Section 342 IPC
in default to undergo
A2 to A4/ simple imprisonment for
one month each;
Appellants in Crl.A. Life imprisonment to
Nos.881/2019 & each one of the accused
279/2020 and a fine of Rs.5,000/-
Section 302 r/w 34 IPC each, in default to each
accused has to undergo
simple imprisonment for
two months
The trial court ordered to run the sentences concurrently.
3. The case of the prosecution is that on 29.06.2014 at about 3.45 p.m,
near Bhathirakaliamman Kovil Street at Pollachi, closer to Vasantha Mahal,
when one Guruvan @ Guru (PW11), Jaleel (PW8) and the deceased were
talking along with Ragupathy (PW12), the accused A1 to A4, picked up a
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quarrel with the said Raghupathy, examined as PW12, which was witnessed by
PW11 and PW8. The deceased along with PW11 and PW8, pacified the
accused and PW12. A1 threatened the witnesses, immediately A2 to A4 picked
up a quarrel with the witnesses and thereafter fled the scene of occurrence.
Angered over the quarrel picked up by the deceased PW8 and A2-Prem Kumar
took the deceased in a motorcycle bearing Registration No.TN-37 AP-0711 to
the room of A5 situated at Pollachi West Police Station Campus and committed
murder of the deceased by inflicting injuries all over the body of the deceased.
A1 had previous enmity with the deceased and thereby wanted to eliminate the
deceased. In furtherance of that enmity, with a common intention to eliminate
the deceased, all the accused joined together and committed the murder of the
deceased.
4. To prove the prosecution case, the prosecution had examined 22
witnesses as PW1 to PW22, marked 43 documents as Exs.P1 to P43 and
produced 14 materials objects as MO.1 to MO.14. Upon perusing the evidence
on record and the submissions made by the parties, the trial court convicted and
sentenced A1 to A4 as mentioned supra and had acquitted A5 to A10 of all the
charges.
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5. PW1 is the Village Administrative Officer to whom A1 had given
extra judicial confession. PW2 is the estranged wife of the deceased, had
narrated the facts and had not stated anything about the involvement of the
accused persons. PW3 is the elder brother of the deceased and had narrated the
occurrence. PW4 is the nephew of the deceased, who had identified the body of
the deceased. PW7 and PW8 were examined to establish that the deceased was
seen alive with the accused. However, PW7 and PW8 had turned hostile during
trial. PW12 was present at the time of A1 picking up quarrel with the deceased
and PW12 and PW8 had spoken about the motive of the accused.
6. Mr.S.John Sathyan, the learned senior counsel appearing for the
appellants/A1 to A4 primarily contended that the case of the prosecution is that
after committing the murder of the deceased on 29.06.2014, A1 had met PW1,
the Village Administrative Officer at Pollachi and had given confession
statement. The learned senior counsel contended that the confession statement
was written by PW1 and at the bottom of the statement, the first accused was
made to affix his signature. The sum and substance of the argument of the
learned senior counsel for the appellants is that the extra judicial confession of
A1 cannot be taken into consideration, as the VAO belonged to a different
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village and an unknown person to the accused, therefore, there was no
explanation by the prosecution as to why the first accused had chosen to prefer
an extra judicial confession to PW1.
7. The learned senior counsel further contended that PW1 was a planted
witness to prove the case of the prosecution and there was no rhyme for the first
accused to give a statement to PW1. The learned senior counsel further
submitted that during cross examination, PW1 has stated that immediately after
the occurrence, A1 had handed over MO1 – Knife to PW1, which was wrapped
by him in a newspaper and handed over to the police.
8. Per contra, in the evidence of PW17, the Inspector of Police, during
her cross examination had admitted that MO1 was wrapped in a plastic cover.
The contradictory statements of PW1 and PW17 about MO1-knife wrapped in
newspaper as per PW1 and it was wrapped in plastic cover, as per PW17,
certainly creates a doubt with regard to recovery of MO1. In the absence of any
clarification with regard to such crucial evidence, the prosecution had failed to
establish the recovery of MO1.
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9. According to the prosecution, the accused and the prosecution
witnesses were known to each other prior to the occurrence. PW11 and PW8
were talking along with the deceased when A1 picked up a quarrel with them.
However, none of the witnesses had seen the occurrence and the prosecution
proceeded as a case of circumstantial evidence.
10. The learned senior counsel appearing for the appellants would point
out that the factum of FIR reaching the court with a delay of one day from the
time of registration of FIR, assumes importance. There was no explanation for
the delay of the complaint/FIR reaching the court, which was marked as
Ex.P20. It is to be noted that the FIR was registered on 29.06.2014 in Crime
No.168 of 2014. The complaint is nothing but a statement given by the Village
Administrative Officer at about 7.30 p.m, which is as per the prosecution, the
statement given by A1 to PW1.
11. The learned senior counsel pointed out that the occurrence had taken
place at the house of A5 and the body was recovered from the said house.
However, the trial court had acquitted A5 to A10 for lack of evidence.
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12. Per contra, the learned Additional Public Prosecutor vehemently
contended that the evidence of PW1, who is the Village Administrative Officer
attached to Pollachi village is a substantial piece of evidence. A1 had given him
a statement narrating the sequence of events for committing the murder of the
accused and had handed over MO1, knife with blood stains which was wrapped
in a newspaper.
13. PW1 had recorded the statement, which according to the prosecution,
has to be considered and treated as a confession statement of A1. He further
contended that though the accused belongs to Pollachi, there is no restriction
for A1 to surrender before PW1 and give a statement. It is the choice of A1 to
surrender and give a statement to PW1, the law does not prohibit the accused
from doing so. It is not a mandate for the accused to approach only the
concerned Village Administrative Officer in whose jurisdiction the accused
resides. The prosecution had established the case with regard to MO1 which
contained B+ve blood group which is same as that of the deceased and to
establish the same, the biological report (Ex.P16), serology report (Ex.P17) and
blood grouping report (Ex.P18) were marked. The said reports would clearly
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show that the blood belonged to the deceased and the blood stain available in
MO1, knife is as that the deceased.
14. PW7 and PW8 were examined by the prosecution to establish that the
deceased was seen along with the accused prior to the occurrence. However,
PW7 and PW8 had turned hostile and there is no evidence to establish the
theory of deceased last seen alive with the accused prior to the occurrence. The
only available evidence is the recovery of MO2 to MO13, blood stained clothes
of the deceased as well as the first accused. The seizure mahazar Ex.P26 speaks
about the blood stained clothes collected in the scene of occurrence. Ex.P28,
Ex.P30, Ex.P32 and Ex.P34 are admissible portion of confession statement
given by A1 to A4. Ex P38 is the admissible portion of confession statement
given by A10. Exs.P10 to P15 are signature of PW13 in the confession
statement given by A5 to A10.
15. The evidence of PW20, the doctor, who had conducted post-mortem
of the deceased, would clearly establish the injuries sustained by the deceased.
There were 14 stab injuries found all over the body of the deceased. In the post-
mortem report, which was marked as Ex.P40, the doctor had opined that the
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death had occurred due to shock and haemorrhage and multiple stab injuries
and the death would have occurred 12 to 24 hours prior to autopsy. Viscera
Report, which was marked as Ex.P41, would reveal that the deceased had
consumed alcohol.
16. Admittedly, the case of the prosecution is based on circumstantial
evidence and the court has to examine whether the chain of events commencing
from the deceased last seen alive together with the accused at the nascent stage
of crime till the recovery of the material objects, which were used for the com-
mission of offence, form a chain pointing out the guilt of the accused. When
PW7 and PW8 were examined by the prosecution to establish the last seen alive
theory, they had turned hostile and where there are no other witnesses to depose
regarding the last seen alive theory, the case of the prosecution cannot be
considered.
17. The only available evidence is the admissible portion of the
confession statement given by A1 to A4, which were marked as Exs.P28 to
P34. It is not in dispute that the law does not prohibit the extra judicial
confession statement given to VAO. Whether the VAO to whom the statement
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of extra judicial confession given by the accused belongs to the village where
the accused actually resides or the witnesses reside is totally immaterial. It is to
be noted whether extra judicial confession given by the accused to PW1 stands
the test of scrutiny of bona fide and the preponderance of probabilities is in
favour of the accused or in favour of the prosecution. When the prosecution had
failed to give any explanation as to why A1 had given an extra judicial
confession which was treated as Ex.P2 as the confession statement or a
statement of confession, which has to be considered as a confession statement
not to the police and to the officer does not hit by Section 25 and 26 of the
Indian Evidence Act.
18. The extra judicial confession given by A1 to PW1 will not make the
prosecution case a genuine one even when the signature of the accused found in
the bottom of his statement and it is for the prosecution to establish the
circumstances which point out the guilt against the accused. The guilt against
the accused should be established by producing witnesses and the documentary
evidences collected during investigation and all put together should point out
the guilt as against the accused persons.
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19. The court has to bear in mind in the case of circumstantial evidence,
from the occurrence where the accused was last seen alive, till the recovery of
material objects which was used by the accused as against the deceased to
commit the crime and the other chain of circumstances should be pointed out
without the break in the chain. It is evident that the prosecution had miserably
failed to prove that the accused was seen together along with the deceased prior
to the occurrence and the recovery based on the confession statement or a
statement alleged to have been voluntarily given by A1 and the recovery of
MO1 will by itself will not establish the case of the prosecution.
20. The discrepancy with regard to the material used for wrapping the
MO1, knife, which has been used for the crime throws a doubt with regard to
the genuineness of recovery of MO1 alleged to have been used by A1. The
corroboration of blood stain in MOs.1 to MO13 as that of the deceased and the
accused by itself is not sufficient to come to the conclusion that the accused
persons have committed the offence.
21. Another significance attached to this case is that the place of
occurrence is the house of A5, the body was found in a pool of blood in the
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house of A5, however, the trial court has acquitted A5 to A10 for want of
evidence and in the absence of any ocular evidence to establish the case, the
medical evidence coupled with the blood stained material objects is one of the
incriminating circumstances against the accused. However the only concrete
material available to the prosecution is that the extra judicial confession given
to PW1 and the complaint of PW1 which was marked as Ex.P2 and the
signature affixed by the accused in the said statement. Though it cannot be
disputed that the signature of the accused is one of the incriminating
circumstances against A1, that by itself will not prove that the accused has
committed the crime in the absence of any effective corroboration for the
reason that the extra judicial confession is a weak piece of evidence. Unless and
until there is some corroboration for extra judicial confession, conviction
cannot be sustained. There are certain circumstances against A1 however, there
is no chain of events pointing out the guilt against the accused to establish that
A1 to A4 had committed the crime.
22. In this regard, it is useful to rely on the judgment of the Hon'ble
Supreme Court in State of Madhya Pradesh vs. Balveer Singh in Criminal
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Appeal No.1669 of 2012 dated 24.02.2025, wherein, the Hon'ble Supreme
Court has held as under:
"61. Although there can be no straight jacket formula for
appreciation of circumstantial evidence, yet to convict an
accused on the basis of circumstantial evidence, the Court
must follow certain tests which are broadly as follows: -
(i) Circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established;
(ii) Those circumstances must be of a definite tendency
unerringly pointing towards guilt of the accused and must
be conclusive in nature;
(iii) The circumstances, if taken cumulatively, should
form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and
(iv) The circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused but
should be inconsistent with his innocence. In other words,
the circumstances should exclude every possible hypothesis
except the one to be proved. [See: Sharad Birdhichand
Sarda v. State of Maharashtra reported in (1984) 4 SCC
116]
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63. It is settled principle of law that an accused can be
punished if he is found guilty even in cases of circumstantial
evidence provided, the prosecution is able to prove beyond
reasonable doubt the complete chain of events and
circumstances which definitely points towards the
involvement or guilt of the accused. The accused will not be
entitled to acquittal merely because there is no eye witness
in the case. It is also equally true that an accused can be
convicted on the basis of circumstantial evidence subject to
satisfaction of the expected principles in that regard.
64. Thus, in view of the above, the court must consider a
case of circumstantial evidence in light of the aforesaid
settled legal propositions. In a case of circumstantial
evidence, the judgment remains essentially inferential. The
inference is drawn from the established facts as the
circumstances lead to particular inferences. The Court has
to draw an inference with respect to whether the chain of
circumstances is complete, and when the circumstances
therein are collectively considered, the same must lead only
to the irresistible conclusion that the accused alone is the
perpetrator of the crime in question. All the circumstances
so established must be of a conclusive nature, and consistent
only with the hypothesis of the guilt of the accused.
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23. In view of the settled law and the facts and circumstances stated
above, we are inclined to allow these appeals. Accordingly, all the three
criminal appeals are allowed and the judgment of conviction and sentence
imposed by the learned V Additional District and Sessions Judge, Coimbatore
dated 28.11.2019 made in S.C. No.120 of 2025, is hereby set aside. The
appellants can be set at liberty forthwith, if their presence is not required in
connection with any other case. Fine amount, if any, paid by them shall be
returned to them forthwith.
[M.S.R., J.] [N.S., J.]
18.06.2025
Asr
Index : Yes
Neutral citation : Yes
To
1.The V Additional District and Sessions Judge, Coimbatore
2. Inspector of Police
Pollachi West Police Station
Coimbatore District
3.The Superintendent of Prisons,
Central Prison, Coimbatore
4.The Public Prosecutor, High Court, Madras
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M.S.RAMESH, J.
and
N.SENTHILKUMAR, J.
Asr
Crl. A. Nos.906 & 881 of 2019
Dated : 18.06.2025
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