Subbiah v. The State Of Tamilnadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on: 24.06.2025

Pronounced on:21.07.2025

CORAM

THE HONOURABLE MR JUSTICE A.D.JAGADISH CHANDIRA AND THE HONOURABLE MS.JUSTICE R. POORNIMA Crl.M.P.(MD) Nos.6445, 6447, 6449 and 6499 of 2025 in Crl.A.(MD) Nos.563, 464, 473 and 512 of 2025 Subbiah

...Petitioner in Crl.M.P(MD) No.6445 of 2025

S.Ramakrishnan ... Petitioner in Crl.M.P(MD) No.6447 of 2025 Jeyasekaran

...Petitioner in Crl.M.P(MD) No.6449 of 2025

Veerabahu

...Petitioner in Crl.M.P(MD) No.6499 of 2025

Vs The Revenue Divisional Officer Thoothukudi District ... Respondent in all petitions Common Prayer: Petitions filed under Section 436(2) of BNSS to suspend the sentence passed in S.C.No.223 of 2006 dated 05.04.2025 on the file of the learned I Additional District and Sessions Court, Thoothukudi to enlarge the petitioners/A8, 1/22

A11, A2 and A6 on bail pending disposal of the above appeal. ( In Crl.M.P(MD) No.6445 of 2025) For Petitioner : Mr.M.Gurudass For Respondent : Mr.A.Thiruvadi Kumar Additional Public Prosecutor ( In Crl.M.P(MD) No.6447 of 2025) For Petitioner : Mr.A.Ramesh, Senior Counsel for Mr.P.Samuel Gunasingh For Respondent : Mr.A.Thiruvadi Kumar Additional Public Prosecutor ( In Crl.M.P(MD) No.6449 of 2025) For Petitioner : Mr.Karthick, Senior Counsel for Mr.Niresh Kumar For Respondent : Mr.A.Thiruvadi Kumar Additional Public Prosecutor ( In Crl.M.P(MD) No.6499 of 2025) For Petitioner : Mr.N.Mohideen Basha For Respondent : Mr.A.Thiruvadi Kumar Additional Public Prosecutor COMMON ORDER 2/22

These Criminal Miscellaneous Petitions have been filed by the appellants/A2, A6, A8 and A11 to suspend the sentence imposed on them by the learned I Additional District and Sessions Judge, Thoothukudi in S.C.No. 223 of 2006 dated 05.04.2024.

2. The petitioners stand convicted and sentenced as under: Section of Law Sentence of imprisonment Fine amount 302 of IPC Life imprisonment Rs.10,000/- i/d to undergo three months rigorous imprisonment 3.The case of the prosecution is that on 18.09.1999 when the Sub Inspector of Police Thiru.D.Jeyasekaran was on duty in Thalamuthunagar Police Station, he received an intimation regarding death of one Vincent from Thoothukudi South Police Station. On receipt of the same, he went to Thoothukudi Government Hospital wherein one Rajendran, S/o.Chellaiah, St.Mary's Colony, Thoothukudi lodged a complaint at 20.00 hrs before him stating that on 18.09.1999 at about 4.00 p.m, a Sub Inspector of Police along with Police Constables came to West Alangarathattu searching for Vincent. At that time, the said Rajendran and one Kasipandian asked the police team the reason for searching the Vincent, for which they replied that one Mariadoss, S/o.Pitchai, Rajapalayam, Thoothukudi and one Muthu, S/o.Mani, West 3/22

Alangarathattu had obtained country bombs from the said Vincent and hence, they were searching for Vincent. Therefore, the said Rajendran and Kasipandian gave assurance to the police that they would produce the said Vincent if necessary and accordingly, on 18.09.1999 at about 4.30 p.m, Rajendran and Kasipandian produced Vincent before Thalamuthunagar Police Station, wherein the Sub Inspector Thiru.Somasundaram enquired Vincent. During enquiry Vincent had denied supplying bomb to the said Mariadoss and Muthu and thereafter Rajendran and Kasipandiyan by giving assurance to the police personnel that they would produce the said Vincent if necessary, had brought Vincent to West Alangarathattu. While they were talking with each other, at about 5.30 p.m., Vincent complained of chest pain.

Hence both Rajendran and Kasipandian had taken the said Vincent to the Doctor Selvaraj Hospital, Muthammal Colony, wherein treatment was given to Vincent. Since the health condition of the said Vincent deteriorated, at about 6.15 p.m the Doctor had advised them to admit him to the Government Hospital, Thoothukudi. Thereafter, at about 6.30 p.m, they admitted the Vincent in Thoothukudi Government Hospital, where the Doctor examined the said Vincent and declared that he was dead. Upon the occurrence, the Sub Inspector of Police, Jeyasekaran received the complaint at 20.00 hrs, on 18.09.1999 and based on which, a case has been registered in Crime No.178 of 1999 under Section 174 of Cr.P.C.

so, wife of Vincent, P.W.2 had sent a telegram to Revenue Divisional Officer/ P.W.1. On receipt of telegram, Revenue Divisional Officer rushed to mortuary, Government Hospital, Thoothukudi and examined the body of the Vincent and noted external injuries. Thereafter he recorded statements of witnesses and on 19.09.1999 he sent a preliminary enquiry report to the District Collector, Thoothkudi narrating the incident. On the same day, the District Collector, Thoothukudi directed P.W. 1 to conduct a full fledged enquiry and sent a report. On receipt of the report of P.W.1., the District Collector in consultation with the Superintendent of Police recommended Government to initiate Criminal prosecution and Departmental action against the accused. Thereafter Government had passed order dated 20.09.

2000 based on which the Revenue Divisional Officer/P.W.1 had filed private complaint under Section 200 of Cr.P.C., on 22.01.2001 before the learned Judicial Magistrate No.II, Thoothkudi. The learned Magistrate took up the said complaint on file as Cr.M.P.No.931 of 2001 and recorded sworn statement of witnesses and took cognizance and issued summons to the accused. Meanwhile, Krishnammal/P.W.2 wife of the deceased filed Crl.O.P(MD) No.1486 of 2004 before this Court seeking to dispose the private complaint which was filed on 22.01.2001. This Court had directed the learned Magistrate to dispose of the said private compliant in Cr.M.P.No.931 of 2001 within a month. Later the magistrate took up the case in PRC No.

the case was exclusively triable by the Sessions Court had committed the case to the Principal District and Sessions Court, Thoothukudi and the case was taken on file in S.C.No.223 of 2006 and it was made over to the I Additional District and Sessions Court, Thoothukudi. Meanwhile on 21.06.2007 the wife of the deceased namely P.W.2/Krishnammal filed a petition seeking to implead A11 and the same was dismissed by the Session Court on 30.07.2007. Against the order of dismissal P.W.2/Krishnammal filed Crl.R.C.653 of 2007 before this Court and the same was allowed on 18.03.2008 by setting aside the order of rejection to implead A11. Against the order passed by this Court in Crl.R.C.No.653 of 2007, A11 has filed SLP before the Hon'ble Apex Court and the same was dismissed on 21.02.2014 confirming the order of this Court. On 07.08.

2019 the 11th accused appeared before the trial Court and later he filed an application in Cr.M.P.No.4645 of 2019 under Section 227 of Cr.P.C., to discharge him and the same was dismissed by the trial Court on 19.12.2019. Against the order of dismissal of discharge A11 filed Crl.R.C.(MD) No.13 of 2020 before this Court and the same was dismissed as withdrawn on 09.03.2022. To prove the case of complainant P.W.1 to 13 were examined and Ex.Ps.1 to 38 were marked and Ex.D.1 was marked by the accused A8 to A11 while cross examining P.W.18 and Court document Ex.C.1 has been marked.

undergo life imprisonment. Challenging the conviction and sentence the petitioners have filed the above appeals and the petitions seeking suspension of sentence pending appeal.

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4. Mr.A.Ramesh, the learned Senior counsel appearing for the petitioner/A11 made the following submissions: a) The trial Court failed to take into consideration the contradictions, exaggerations and embellishments in the testimony of witnesses. The petitioner is a sincere Police Officer who had accumulated more than 134 good service entries and awarded meritorious service during the relevant point of time and he has nothing to do with the alleged offence.

b) The petitioner has been wrongly implicated as an accused without there being any materials to substantiate the case for framing charge against him. The petitioner was not in-charge or attached to Thalamuthunagar Police Station during the relevant point of time i.e., 17.09.1999 to 19.09.1999, whereas the charge has been framed as if he was employed in the concerned police station during the relevant point of time. P.W.1 after holding enquiry under PSO 145 has come to the conclusion that the petitioner was not the Officer being in charge or in any way attached to the said police station. The prosecution is based on the enquiry report/Ex.P.17 and name of the petitioner is not found in the enquiry report and he was also not implicated as an accused in the compliant filed by P.W.1/RDO. In the absence of any independent police investigation as mandated under Section 176 of 8/22

Cr.P.C., the prosecution based on the report of the RDO and the private complaint is ex-facie illegal and thereby the trial is vitiated. When the name of the petitioner/A11 is not found in Ex.P.17/enquiry report, the evidentiary value of the said document cannot be said to be lost by the corroborative version of P.W.2. c) The petitioner's name does not find place in the earliest document, report of the Revenue Divisional Officer and in the private complaint. He has been implicated belatedly after several years and thereby it had caused grave prejudice to him in defending his case properly. The failure to conduct independent investigation by any police agency and non seizure of material documents, non preparation of rough sketch, non taking of photos of the scene of occurrence, absence of expert opinion and non conduct of test identification parade are crucial factors which have been ignored by the trial Court, thereby the trial Court erred in convicting the petitioner.

d)The petitioner has been advised to undergo Percutaneous Transluminal Coronary Angioplasty to LAD and the suspension of sentence has to be considered based on the Medical Grounds.

e)In support of his contention that the entire trial is vitiated, the learned Senior Counsel appearing for the petitioner relied on the following decisions:

1) Manohari vs. DSP, 2018 SCC Online MAD 14216. 9/22

2) R.Kasthuri vs. State, 2014 SCC Online MAD 12579

3) C.ILavarasu vs. the RDO, 2019 SCC Online MAD 119

4) K.Krishnan vs. State of Kerala, 2023 (5) KHC 58,

5) Krishnamoorthy vs. State, 2020 (2) MLJ (Crl) 219

6) Henri Tiphagne vs. State of Tamilnadu, 2018 (2) MWN (Crl) 313 f)In support of the proposition that non recovery of the weapon vitiates the prosecution case, the learned Senior Counsel appearing for the petitioner relied on the judgment in the case of Ram Singh v. State of U.P., in (2024) 2 SCR 668. 5.Mr.V. Karthik, learned Senior counsel appearing for the petitioner/A2 would submit that the trial Court erred in believing the evidence of P.W.2, who is the wife of the deceased. The evidence of PW2 lacks credence, which has been made after due deliberation with the legal experts. The trial Court failed to take into consideration the self-contradictory version of PW2 and her evidence is unnatural and cannot be believed. The trial court failed to take into consideration the contradictions in the evidence of P.W.3. The trial Court erred in believing the evidence of P.W.2 to P.W.5 with reference to the date and time of the injuries on the deceased when medical evidence is contrary to the same. When there is admission by the witnesses that they 10/22

had not seen the accused persons, the non-conducting of test identification parade assumes significance and the trial Court ought not to have convicted the accused based upon such evidence. P.W.11 had categorically admitted that an Advocate attached to the Communist Party of India was behind the entire scenario and that he was the one who had prepared the statement of witnesses during enquiry by P.W.1 and the very reason for projecting the story of the custodial death is only for the purpose of receiving compensation and stage managed prosecution had been conducted against the petitioner. He would reiterate that the entire trial is vitiated on account of the procedural violations and non-conduct of independent police investigation, which is mandated under Section 176 of Cr.P.C. 6.Mr.N.

Mohideen Basha, learned counsel appearing for the petitioner/A6 would submit that though the petitioner was working as police constable attached to Thalamuthunagar police station, he was on bandobust duty at the Thalamuthunagar Temple Festival, which was celebrated for 10 days and that he was available in the police station for a short duration on the alleged date of the occurrence. None of the witnesses have made any specific reference about the petitioner and they have not mentioned the name of the petitioner in their testimony. The evidence of P.W.

the petitioner anywhere. P.W.1 during his cross examination had admitted that no proper enquiry was conducted with regard to the presence of police personnel on the alleged date of the occurrence i.e., on 17.09.1999 and 18.09.1999 and without there being any legal evidence, the trial Court erred in convicting the petitioner on presumptions and surmises.

7.Mr.M.Gurudass, learned counsel appearing for the petitioner/A8 would submit that the prosecution had failed to discharge its fundamental burden of establishing the guilt of the petitioner beyond any reasonable doubt. Further P.W.1 who had filed the private complaint, conspicuously did not depose anything with regard to the involvement or participation of the petitioner in the alleged occurrence and no reference to the presence of accused in the place of occurrence has been made by P.W.6; P.W.2 neither implicated the petitioner in her testimony with regard to the involvement, nor identified the petitioner while deposing in the court. The evidence of P.W.3, P.W.4 and P.W.5 is vague with regard to the involvement of the petitioner. The trial Court failed to take into consideration that P.W.6 to P.W.8 had turned hostile and they did not support the case of the prosecution. Further, the trial Court failed to take into consideration the evidence of P.W.12 Doctor, who conducted autopsy and had opined that the death could be attributable due to excessive 12/22

consumption of alcohol rather than to any alleged acts of violence. The petitioner though was on duty, excepting the proof that he visited the police station, there is no other material available to implicate him in the offence. 8.The respondent filed a detailed counter in all the cases. 9.Mr.A.Thiruvadi kumar, learned Additional Public Prosecutor appearing for the respondent would submit that it is a case of custodial death of one Vincent, who was taken for enquiry. Totally, eleven accused faced the charge for the offence under Section 302 of IPC and the trial Court had acquitted the A7/Sivasubramanian and A9/Rathinasamy, but however, convicted the petitioners for offence under Section 302 of IPC. The occurrence said to have taken place between 17.09.1999 at 9.00 pm., and 18.09.1999 at 6.00 p.m.

The offence said to have been committed prior to Amendment Act, which came into force in the year 2006 and the procedure adopted by the Revenue Divisonal Officer was in accordance with Section 176 of Cr.P.C which came into force by way of Criminal Law II Amendment Act, 1983. There is no infirmity or illegality in the trial conducted before the trial Court which is in accordance with the procedures in force during the relevant period.

since they refer to the provisions after the Amendment Act 25 of 2005, which came into force during the year 2006.

10.He would further submit that the prosecution case clinches upon the evidence of eye witnesses PW.2, PW.3, PW.4 and PW.5 and also the circumstantial evidence, which had been projected as against the accused. He would point out the following incriminating circumstances against the accused. (i)The deceased Vincent is arrayed as an accused, in Crime No.177 of 1999 on the file of Thalamuthunagar Police Station for the offence U/s.5 of Explosive Substance Act and the occurrence is said to have taken place on 18.09.1999 at 03.00PM, reported on the very same day at 03.30 PM. (ii)The co-accused in the said FIR viz., Mariadoss and Muthu had been arrested and remanded to judicial custody, vide Remand Report(Ex.P20) and they had injuries which is substantiated by their Accident Registers/ Exs.P13 and Ex.P14.

(iii)The document prepared by the Police officials/Accused viz., Ex.P10, the FIR in Crime No.178/1999 on the file of Thalamuthunagar Police Station is a crucial document. It informs that the deceased was brought to the Police Station for enquiry by one Rajendran at 04.30 PM on 18.09.1999 and as per the contents, the Police Officials after enquiry had let off Vincent 14/22

(iv)It is not in dispute that the Vincent was brought to the hospital of Dr.Selvaraj/PW.10 at 05.50 PM on 18.09.1999 and the Doctor on examining him, had recommended to be taken to the Government Hospital (Ex.P3). Further, PW.13/Dr.Kumaran at Thoothukudi Government Medical College Hospital at 06.30 PM, on 18.09.1999, had found that Vincent was brought dead and he noted injuries on the deceased, got suspicious and had directed the body to be kept safe in the mortuary (Ex.P8). (v) Now the crucial factor remains that even as per the Postmortem Report, around 38 injuries were found in the body of the deceased. If at all, the deceased had come to the Police Station at 04.30 PM on 18.09.1999; The failure on the part of the police to note the injuries sustained by the deceased looks strange.

Further, when the other two named accused in the FIR in Crime No.177 of 1999 have been produced for remand on 19.09.1999, the deceased Vincent who is arrayed as A3 was let off by the Police Officials look artificial. The time gap between which the police officials had seen the deceased and he was declared dead is very short and this incriminating circumstance stares against the accused. (vi)The evidence of PW.2, wife of the deceased is duly corroborated by the testimony of PW.3, PW.4 and PW.5.

accused cannot be considered to be fatal, considering the delay in commencing the trial. The Trial in the present case commenced after 25 years and the accused are solely responsible for the delay. The contradictions and improvements cannot be examined in an application for suspension of sentence, more particularly when the Accused had been sentenced for Life Imprisonment. He would further submit that as regards the petitioner/ A11, the evidence of the eye witnesses is consistent. Though, A11 was not attached to Thalamuthu Nagar Police Station, the fact remains that A11 was working as Sub Inspector of Police in Thoothukudi District at the relevant point of time and he was serving at Special Branch, Thoothukudi District is admitted in Section 313 and 233 (2) Cr.P.C statement.

Admittedly he was deputed to deal with cases relating to Explosive substances. The eye witnesses are consistent and clear regarding the participation and presence of A11 in Thalamuthunagar Police Station on the date of occurrence and his role is also spoken to. Further, the Telegram sent by PW.2/Ex.P16 informs specifically the name of A11/Ramakrishnan and A2/ Jeyasekaran.

(vii)As regards the other two Accused viz., A6/ Veerabaghu and A8/Subbaiah, the Pocket Note Books of the said Police Officers, which 16/22

were marked as Exs.P30 and Ex.P32 plays a vital factor as the said entries had been made by the said Accused Police Officers who had signed them. The said entries point out the fact that the said Police Officers have visited the Police Station on the date of occurrence and, as such, in the absence of any explanation offered by them U/s.313 Cr.P.C.they cannot escape from the liability.

11.He would further submit that admitedly, the deceased had come to the police station at 4.30 pm; He had been let off after enquiry. Later, the deceased was taken to the hospital and from there, he was immediately taken to the Thoothukudi Government Medical College Hospital and P.W.13 had found that the deceased was brought dead and he had noted the injuries on the deceased. The occurrence had happened inside the police station. Burden is on the accused to disprove the charge. Further there is every possibility of concealing the evidence and in such circumstances the non recovery of the rice pounder will not affect the case of prosecution.

12.The learned Additional Public Prosecutor would ultimately contend that it is a case of custodial death in which the deceased is said to have sustained 38 injuries. Timing of the deceased taken into the police station and being sent out is spoken by 17/22

the witnesses and taken to the hospital plays crucial factors. The trial Court after full fledged trial after taking into consideration the oral and documentary evidence of the witnesses have found the accused guilty of the offences. Though the occurrence took place in 1999, and the trial commenced in 2024 after a lapse of nearly 25 years the prosecution cannot be held responsible for the delay. In such circumstances at the stage hearing the petition under Section 389 of Cr.P.C., it would not be a correct approach to re-appreciate the evidence and try to pick up a few lacunae or loopholes here and there to decide the petition. To substantiate his contention he relied on the judgment of the Hon'ble Apex Court in the case of Omprakash Sahini v. Jai Shankar Chaudhary and another reported in 2023 (6) SCC 123, 13.Heard the learned counsel appearing on either side and perused the materials available on record.

14. At the outset, the offence is said to have been committed in the year 1999 and as such the decisions relied on by the learned Senior Counsel regarding procedural infirmity cannot be taken into consideration

15. It is not in dispute that the Vincent was brought to the hospital of Dr.Selvaraj / PW.10 at 05.50 PM on 18.09.1999 and the Doctor on examining him had recommended to be taken to Government Hospital (Ex.P3). Further, PW.13 / Dr.Kumaran at Thoothukudi Government Medical College Hospital at 06.30 PM, on 18/22

18.09.1999, had found that Vincent was brought dead and on noting the injuries on the deceased, got suspicious and had directed the body to be kept in the mortuary. The time gap between the time the victim was taken to the police station and taken to the hospital is crucial.

16. The evidence of PW.2, wife of the deceased is duly corroborated by the testimony of PW.3, PW.4 and PW.5. The improvement pinpointed by the accused cannot be considered to be fatal, considering the delay in commencing the trial. The trial in the present case commenced after 25 years and the accused are responsible for the delay. The contradictions, improvements cannot be examined in an application for suspension of sentence, more particularly when the accused had been convicted for Life Imprisonment.

17.As regards A11, the evidence of the eye witnesses is consistent. The fact that A11 was a Sub Inspector of Police in Thoothukudi District at the relevant point of time and he was serving at Special Branch, Thoothukudi District is admitted in Section 313 and 233 (2) Cr.P.C statement. The eye witnesses are consistent and clear as regards the participation and presence of A11 in Thalamuthunagar Police Station on the day of occurrence and also his role is spoken to. Further, the Telegram sent by PW.2 / Ex.P16 informs specifically the name of A11 / Ramakrishnan and A2 / Jeyasekaran.

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18. As regards the other two Accused viz., A6 / Veerabaghu and A8 / Subbaiah, the Pocket Note Book of the said Police Officers which were marked as Ex.P30 (Page No. 371) and Ex.P32 (Page No. 387) plays a vital factor as the said entries had been made by the said accused Police Officers who had signed them. The said entries pointed out the fact that the said Police Officers have visited the Police Station on the day of occurrence and as such they have not offered any explanation U/s.313 Cr.P.C., regarding their presence at the police station during the relevant time and the incidents connected there to.

19. We are aware that we are dealing with applications for suspending the sentence. However, since detailed arguments were made by the learned Senior Counsel and other counsels we are constrained to pass a detailed order.

20. In Omprakash Sahini as stated supra, the Hon'ble Apex Court after referring to various earlier judgments relating to applications under Sections 389 of Cr.P.C., as held as follows:

"Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be 20/22

in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach".

21. As stated above the petitioners have been found guilty and sentenced to life imprisonment very recently on 05.04.2025. The delay in the trial proceedings cannot be attributed to the prosecution and it does not weigh in favour of the petitioner. The trial Court after meticulous analysis of the available material and after full fledged trial had found the petitioners guilty of the offences. In view of the serious nature of offences and the absence of procedural infirmity we find that there is no ground to 21/22

suspend the sentence.

22. In the result, these Criminal Miscellaneous Petitions stand dismissed. However, we make it clear that our observations, made in the earlier part of the order, purely relates to the question of deciding the application for suspension of sentence and bail sd/- 21/07/2025 / TRUE COPY / /2025 Sub-Assistant Registrar (C.S. I / II / III / IV) Madurai Bench of Madras High Court, Madurai - 625 023.

aav TO 1 THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, THOOTHUKUDI. 2 THE REVENUE DIVISIONAL OFFICER, THOOTHUKUDI. 3 THE SUPERINTENDENT, CENTRAL PRISON, PALAYAMKOTTAI. +1 CC to M/s.L.SHAJICHELLAN, Advocate ( SR-7923[I] dated 23/07/2025 ) +1 CC to M/s.P.SAMUEL GUNASINGH, Advocate ( SR-7953[I] dated 23/07/2025 )

ORDER

IN Crl.M.P.(MD) Nos.6445, 6447, 6449 and 6499 of 2025 in Crl.A.(MD) Nos.563, 464, 473 and 512 of 2025 Date :21/07/2025 NBF/SAR- /24/07/2025/ 22P/6C Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023 22/22