Allowed

P.Subramani v. State by

Madras HC22 Jun 2018CRL A/197/2011

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant. It set aside the conviction under Section 304 IPC, finding that contradictions regarding the accused's arrest and the credibility of an extrajudicial confession created sufficient doubt to negate the prosecution's circumstantial evidence chain.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond cancelled; fine refunded.

P.Subramani Vs State by — Murder and Culpable Homicide | Madras HC (2018)

¶1

Bail Slip

¶2

The Appellant/Accused Viz., P.Subramani, S/o. Periyaanna, was directed to be released on bail dated 11.07.2011 and made in Crl.MP.No.1 of 2011 in Crl.A.No.197 of 2011.

¶3

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶4

DATED: 22.06.2018

¶5

CORAM:

¶6

THE HON'BLE MR.JUSTICE R.PONGIAPPAN

¶7

Crl.A.No.197 of 2011
P.Subramani ... Appellant/Accused
Vs.
State by:
The Inspector of Police,
Kichipalayam Police Station,
Salem District.
(Crime No.1465 of 2009) ... Respondent/Complainant

¶8

PRAYER:- Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, against the judgment and order passed by the Additional Sessions Judge, Fast Track Court No.2, Salem in S.C.No.322/2009 dated 19.11.2010.

¶9

For Appellant : Mrs.Jayasri Baskar (Legal Aid Counsel) For Respondent: Ms.T.P.Savitha

¶10

Government Advocate (Crl.Side)

¶11

J U D G M E N T

¶12

This Criminal Appeal has been filed against the judgment passed by the Additional Sessions Judge, Fast Track Court No.2, Salem in S.C.No.322/2009 dated 19.11.2010.

¶13

In the above said case, the appellant herein is thesole accused. At the end of the trial, the learned Additional Sessions Judge came to the conclusion that the appellant herein was found guilty for the offence under Section 304 (i) of I.P.C and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.100/-, in default he should undergo rigorous imprisonment for three months.

¶14

The case of the prosecution is as follows:P.W.1 is the daughter of the deceased and P.W.2 is her https://hcservices.ecourts.gov.in/hcservices/ relation. One day prior to the date of occurrence i.e., on

¶15

29.11.2009, at about 6 p.m, the deceased left the house after giving information to P.W.1 that he was going to Tiruchengode and would come back at about 5 a.m on the next morning. P.W.7 who know the appellant and the deceased, on 29.11.2009, when he was walking in Kallangkuthu, he saw the appellant and the deceased came from the opposite direction. After seeing the P.W.7, the appellant and the deceased told to him that they were going to consume brandy. Before that, the deceased purchased chappal from Mathina Footwear Shop. At the time of purchasing the chappal, the appellant was accompanied with the deceased.

¶16

Further, one day before the occurrence, P.W.9 Natarajan also saw the appellant Subramani and the deceased at about 3.30 p.m. Then, at that time, P.W.9 was working as Supplier in TASMAC Brandy Shop. Both the deceased and the appellant consumed two quarter bottles of Rum.

¶17

It appears from the evidence of P.W.1 that even after made a Telephonic call, the deceased had not returned to home till 8 a.m on the next morning. Thereby, she searched the deceased along with P.W.2. Then, they found that the deceased was lying in the ditch near Sakilabanu Petty Shop at bye-pass Road, Erumapalayam. The dead body was found with injuries on the forehead, neck and shoulder. Hence, P.W.1 lodged a complaint before Sub-Inspector of Police, Kichipalayam PoliceStation under Ex.P1. After receiving the complaint on 30.11.2009, P.W.15, the then Inspector of Police, Kichipalayam Police Station, registered a case in Crime No.1465/2009 under Section 302 I.P.C. The First Information Report was marked as Ex.P12. After registration of the case, P.W.15, went to thescene of occurrence and prepared an observation mahazar and rough sketch in the presence of Village Administrative Officer, P.W.11 and the same has been marked as Ex.P5 andEx.P13 respectively.

¶18

After preparation of those exhibits, P.W.15 conducted the enquiry over the dead body of Pattan chettiar and prepared inquest report under Ex.P14. Further, he made arrangements fortaking photographs. The series of photographs was marked as P11. After the preparation of the inquest report, he sent requisition to the Doctor for conducting Post mortem over the dead body of the deceased. Before that, he recovered blood stained wooden plank, blood stained stone and other material objects, which were marked as M.O.1 to M.O.18 under the coverof mahazar, from the place of occurrence. Ex.P6 is the mahazar. Those material objects were recovered by P.W.15 in the presence of P.W.11.

¶19

After receiving the requisition given by the Investigation Officer, P.W.5 Dr.Meera, conducted the post mortem and found the following injuries:https://hcservices.ecourts.gov.in/hcservices/

¶20

“Rigor mortis present all over the bodies. Injuries : 1.Face asymmetrical irregular laceration seen over right side of fore head 8 x 2 cms x bone deep.

¶21

2.Irregular laceration occipital region of scalp 4 x 1 cm x bone deep. 3. Depressed fracture nasal bone, superior & inferior orbital bones, right maxilla, right zygoma and mandible. Right eye ball shifted posteriorly.

¶22

Fissured fracture right frontal bone extending to occipital bone 16 cms long comminuted fracture of left temporal bone over an area of 5 x 3 cms Extradural, subdural and subarachroid haemorrhage seen over both cerebral hemispheres. Comminuted fracture of base of skill.

¶23

Dark red contusion seen over left shoulder 6 x 4x 0.5 cms right cheek 3 x 2 x 0.5 cms, chin 2 x 1 x 0.5 cms.

¶24

Fracture both upper and lower right lateral incisors and central incisors and right premolar tooth. Bleeding seen from the fractured tooth socket. 7.Subscalpal contusion seen over bifrontotemporal region of scalp 16 x 5 x0.5 cms; occipital region of scalp 12 x 6 x 0.5 cms. All the above injuries are antemortem in naute. The edges of lacerated injuries are irregular with abrased margins. Other findings : 1. O/D Head: Vide injury column 2.O/D Neck: Dark red contusion front of neck 4 x 2 x 0.5 cms. All nect structures intact. Hyoid bone intact. 3.O/D Thorax: Ribs – intact. Heart – Normal in size; Chambers contained minimal fluid blood, coronaries, valves and great vessel – patent Lungs – both on c/s pale.

¶25

4.O/D Abdomen – Stomach – empty fruity odour present mucosa pale. Liver spleen and both kidneys c/s pale bladder empty Genitalia – No injuries made out. Pelvis and spinal column – Intact.”

¶26

The process of post mortem was completed at 5.10 p.m on 30.11.2009. Finally, she gave an opinion that the deceased was died of shock and haemorrhage due to head injuries sustained by him.

¶27

Meanwhile, on 02.12.2009, when P.W.11 was in his office, the appellant came there and gave a statement in which he admitted the guilt. The said statement given by the appellant was recorded by P.W.11 under Ex.P7. Subsequent to recording the statement, he prepared a special report and https://hcservices.ecourts.gov.in/hcservices/ produced the appellant before the Inspector of Police along

¶28

with the said report. In the Police Station, at about 8 a.m on 02.12.2009, the appellant gave a confessional statement before P.W.15. In the confessional statement, he admitted the guilt and willing to identify the irregular stone which was used for the commission of offence. After recording the said confessional statement, P.W.15, P.W.11 and witness Balasubramaniam went along with the appellant near to Sami Traders Petrol Bunk and recovered the blood stained stone under Ex.P9 mahazar.

¶29

Further, the accused took the said party to his house bearing Door No.127 situated at Arignar Anna Street and handed over the blood stained white shirt and white dhoti. The same was recovered by P.W.15 under Ex.P10 mahazar. The recovered material objects were marked as M.Os.16 to 18 in the Trial Court. In continuance of investigation, P.W.15 sent the material objects for chemical examination. After receiving the analysis report, he completed the investigation and laid a charge sheet on 03.12.2009, within three days from the date of occurrence.

¶30

After receiving the charge sheet, the learned Judicial Magistrate No.2, Salem, taken the case on file in P.R.No.87/2009. After the appearance of appellant, he furnished the copies of the documents which were relied by the prosecution. Thereafter, he had committed the case to the Court of Session, Salem. After receiving the case records, the learned Session Judge, Salem Division, assigned the case No. as S.C.No.322/2009 and made over the same to the Additional Session Judge, FTC No.2, Salem. After the appearance of appellant, the learned Additional Session Judge heard the appellant for the charges levelled against him, for which, the appellant pleaded not guilty. Thereby, the charge has been framed against the appellant for the offence under Section 302 of I.P.C.

¶31

In the Trial Court, 17 witnesses were examined on the side of the prosecution besides 21 documents were marked as P1 to P21. On the side of the defence, the appellant himself examined as D.W.1 and he produced three exhibits as D1 to D3. On the side of the prosecution, apart from marking exhibits, 18 material objects were marked as M.Os.1 to 18. After concluding the trial, the learned Additional Sessions Judge came to the conclusion that the appellant is found guilty for the offence under Section 304(i) of I.P.C and convicted as stated above. Now, challenging the conviction and sentence, this appeal has been preferred before this Court.

¶32

Today, when the appeal is taken up for consideration,heard the arguments advanced by Mrs.Jayasri Baskar, learned counsel for the appellant and Mrs.T.P.Savitha, learned Government Advocate appearing for the respondent.

¶33

https://hcservices.ecourts.gov.in/hcservices/

¶34

The learned counsel appearing for the appellant wouldsubmit that in the Trial Court without considering the circumstances and other aspects, believing extra judicial confession statement said to have been given before the P.W.11, the appellant was convicted. The said finding is nothing but erroneous one. Accordingly, she prayed to allow the appeal and set aside the judgment rendered by the Additional Sessions Judge, FTC No.2, Salem.

¶35

Now on considering the submission made by theappellant's counsel, in the Trial Court, prosecution has attempted to prove his case through circumstantial evidence. In this regard, P.W.1 lodged a complaint before the Police Officers after knowing the death of the pattan chettiar.

¶36

Since the prosecution attempted to prove the case by means of circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilty is drawn to be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a judgment of Padala Veera Reddy Vs. State of Andhra Pradesh and others, reported in AIR 1990 SC 79, wherein, paragraph No.10 is extracted below:-

¶37

“10.......in the present case here is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. this Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests :

¶38

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

¶39

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

¶40

(3) the circumstances, 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

¶41

(4) 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 and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of https://hcservices.ecourts.gov.in/hcservices/ Maharashtra ).”

¶42

Now applying the principles laid in the above judgment, in this case, the witnesses examined on the side of the prosecution as P.W.6 to P.W.8 clearly gave evidence as the deceased and the appellant are accompanied each other before the day of occurrence.

¶43

In the said circumstances, in the Trial Court, the Village Administrative Officer of Erumapalayam Village, was examined as P.W.11, in fact who is the crucial witness in this case, he attested in the observation mahazar prepared by P.W.15. Moreover, the appellant had surrendered before him and gave extra judicial confession and thereafter, he only produced the appellant before the police officer for initiating action against the appellant. Now, if the extra judicial confession recorded by P.W.11 is cogent and reasonable, but, yet may probabalise the case of the prosecution as genuine.

¶44

In this occasion, the learned counsel for the appellant would submit that as per the evidence of P.W.1 and P.W.6, the police officer secured the accused on the date of registering the case, but, as per the case of prosecution, after the date of occurrence i.e. 29.11.2009, only on 02.12.2009, the appellant herein surrendered before P.W.11 and thereafter, investigation was progressed. Further, he contented that if really the accused was surrendered before P.W.11, the question of seeing the accused in the police station by P.W.1 does not arise. Thereby, the said contradiction alone is sufficient to hold the history put forth by the prosecution as a false one. Accordingly, the learned counsel prayed for allowing the appeal.

¶45

Now, on considering the said contention with the records available in this case, it is true as per the evidence of P.W.11, on 02.12.2009 at about 7 a.m, the appellant was surrendered before him and gave a statement in which he admitted the guilt. Only thereafter, P.W.15, the investigating Officer, arrested the appellant and continued his investigation. In this occasion, it is to be noted that in the cross examination of P.W.1, she stated that on 30.11.2009 (date of registering the case) the Sub-Inspector of Police brought the appellant to the police station. P.W.1 categorically admits that on 30.11.2009 and on 01.12.2009, when she was going to the police station, the appellant also present there. Since P.W.1 being the daughter of the deceased,there is no chance for telling the lie before this Court.

¶46

In the said circumstances, if really the accused was secured on 30.11.2009, there is no chance for surrender before P.W.11 on 02.12.2009. Since the question of surrender is doubtful, recording of the extra judicial confession, https://hcservices.ecourts.gov.in/hcservices/ arresting the accused, recovering the material objects are all

¶47

doubtful. Accordingly, the evidence given by P.W.11 and other witnesses are creating doubt, as whether the appellant was arrested as stated in the prosecution or not.

¶48

In a judgment of State of Haryana Vs. Jagbir Singh and Others, reported in 1977 SCC (Crl.) 638 in paragraph No.6, our Hon'ble Apex Court held as follows:-

¶49

“6. The High Court found a very serious infirmity in the entire prosecution case from an admission which had been made earlier by Sukhbir Singh (P.W. 18), the father of the deceased. From that statement the High Court found that Sukhbir Singh had admitted that the accused were arrested by the police in this case on 16th March, 1975, the very day the dead body of his son was found at the Ramlila ground. If the arrest of the accused on 16th March is true, as stated by Sukhbir Singh, not only the extra-judicial confession of the accused, before Deputy Prasad on 18-3-1975 but also the recoveries of the blood-stained clothes and kirpans made by the police on 18-3-1975 following the alleged statements of the accused lose all credibility. This is the principal ground on which the High Court came to the conclusion that there was "padding" In the prosecution case and that certain evidence was fabricated in order to implicate the accused.”

¶50

So, applying the observation of our Hon'ble Apex Court, in this case also as already discussed, the probability of recording extra judicial confession given by the appellant before P.W.11 has becomes doubtful. Further more, P.W.11 is a stranger to the appellant. In the said circumstances, the prosecution has not proved under what circumstances, the appellant believe and trust that P.W.11 is a competent person to save his life.

¶51

Therefore, according to the contradiction and other circumstances arising in the evidence of P.W.1 and P.W.11, creates a doubt whether the accused was involved in the alleged crime or not. Further, the said contradiction lost the credibility of evidence given by the prosecution witnesses. So, the evidence put forth by the prosecution is not convincing, and on going through the judgment rendered by the learned Additional Sessions Judge, without discussing those aspects, the learned Judge convicted the accused, needs Interference.

¶52

Accordingly, in the light of the above discussion, the criminal appeal is allowed. The conviction and sentence imposed on the appellant by the learned Additional Sessions Judge, Fast Track Court No.2, Salem in S.C.No.322/2009 dated https://hcservices.ecourts.gov.in/hcservices/ 19.11.2010, is set aside and the appellant/accused is

¶53

acquitted of the charges. The bail bond, if any, executed by the appellant/accused shall stand cancelled. The fine amount, if any, paid by appellant/accused shall be refunded to him.

¶54

While parting with the case, I appreciate the services rendered by Mrs.Jayasri Baskar, learned counsel who appeared on behalf of the appellant, as Legal Aid Counsel. The Legal Services Authority is directed to pay her remuneration.

¶55

Sd/-

¶56

Assistant Registrar(CS-VII)

¶57

//True Copy//
Sub Assistant Registrar
gsk
To
1. The Inspector of Police,
Kichipalayam Police Station, Salem District.
2. The Public Prosecutor,
Madras High Court,Chennai.
3. The Judicil Magistrate, Salem.
4. -do- thro the Chief Judicial Magistrate, Salem.
5. The Additional Sessions Judge,
Fast Track Court, No.2, Salem.
6. The Superitendent, Central Prison, Salem.
7. The Member Secretary,
Legal Service Authority High Court, Madras.
Copy to : The Section Officer,
Criminal Section,
High Court, Madras.
+ 1 ccto Mrs. Jayasri Baskar, Legal Aid Counsel, SR.39827
Crl.A.No.197 of 2011
PA(CO)
EU(27/08/2018)

¶58

https://hcservices.ecourts.gov.in/hcservices/

P.Subramani v. State by

Case brief

What is this about?

What did the court decide?

P.Subramani v. State by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dinesh @ Dinesh Kumar Vs the Inspector of Police

Prabhu Vs the Inspctor of Police

P.K.Nijesh Vs Sub Inspector of Police

Madan Alias Madankumar Vs State Rep by

S.Gopalakrishnan Vs State of Tamilnadu

Loganathan Vs State Rep by