Crime Scene Re-Enactment Won’t Violate Right Against Self Incrimination In All Situations

“The greed of gain has no time or limit to its

capaciousness. It’s one object is to produce and

consume. It has pity neither for beautiful nature nor

for living human beings. It is ruthlessly ready

without a moment’s hesitation to crush beauty and

life.” – Rabindranath Tagore

1. The need for this Court to begin with the aforenoted words

of Rabindranath Tagore emanates from the fact that the present

case is a classic illustration of how humans tend to surpass all

limits of sound human behavior and even go to the extent of

crushing human lives in the pursuance of their greed. A disputed

piece of land, contesting claims over the same, prolonged

litigation, unsuccessful attempts to favourably turn the pending

litigations, a reputed doctor of Chennai, a land-grabbing mafia,

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few advocates, few henchmen and a broad day-light murder in

Chennai. These are the highlights of what we are about to discuss

in the present case.

2. The case pertains to the murder of Dr. Subbiah, a reputed

doctor working at Billroth Hospital, Raja Annamalaipuram,

Chennai. On 14.09.2013, at about 05:00 PM, the deceased doctor

wrapped his work for the day and left the hospital. As he came at

1st Main Road outside the hospital, he was attacked by three men

– A8, A9 and PW121 – with a sickle and the deceased sustained

multiple injuries on his head, neck, shoulder, right forearm, etc.

He was immediately shifted to Billroth Hospital,

Annamalaipuram for treatment. However, as his condition

worsened, he was shifted to Billroth Hospital, Aminjikarai,

where he succumbed to injuries on 23.09.2013 at about 01:00

AM. The case, which was initially registered under Section 307

of Indian Penal Code, 18602, was converted into one under

Section 302 IPC after the demise of the deceased on 23.09.2013.

3. Investigation of the case revealed that there was a

prolonged dispute between the deceased and the family of A1

regarding title/ownership of a land parcel admeasuring 2 acres in

Anjugramam Village, Kanyakumari District. It is not necessary

1 For clarity of record, the accused persons have been referred with their original ranks

before the Trial Court.

2 Hereinafter referred as “IPC”

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for this Court to elaborate the details or background of the land

dispute, except to note that various complaints were lodged by

the deceased against A1 and his family members regarding

commission of criminal trespass. One such complaint was lodged

in 2013 before the Land Grabbing Cell by PW-9, who was

Manager of the deceased. A compromise meeting had taken

place between the parties after the said complaint; however, the

accused persons were not inclined for a compromise and

consequently, a criminal case no. 57/2013 was registered against

A1 and A2 on 04.04.2013. Thereafter, the accused persons

sought and got anticipatory bail. It was followed by an

application for cancellation of the anticipatory bail by the

deceased.

4. The issue escalated again on 27.06.2013, when A3, A4 and

A6 caused damage to the fencing of the property and this incident

led to the registration of another criminal case no. 476/2013

against the accused persons. It is the case of the prosecution that

the accused persons were quite agitated with the conduct of the

deceased in filing criminal complaints against them as well as in

filing the application seeking cancellation of anticipatory bail

granted to A1 and A2. This frustration gave rise to motive for the

crime, which ultimately culminated into the commission of

murder of the deceased. It is the case of the prosecution that the

accused persons felt that if the deceased is eliminated, they would

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be able to enjoy or dispose of the disputed property without any

hindrance as the deceased would be survived only by his wife

and two daughters. That’s how the foundation of the criminal

conspiracy to eliminate the deceased was laid down.

THE CONSPIRACY

5. The first conspiracy meeting took place in the first week

of July 2013, between A3, A5, A6, A7 and A10 (A10 was granted

pardon and turned into an Approver and was ultimately examined

as PW12). In the said meeting, a plan was made to engage the

services of A8, A9 and PW12. A1 and A2 were also called for

the meeting and accordingly, they joined the conspiracy and

offered to give 50% of the property value to A5 and others, if Dr.

Subbiah was done away with. The second conspiracy meeting is

said to have taken place on the disputed land in the last week of

July 2013, in which A1 to A3, A5 to A9 and PW12 were present.

In the said meeting, PW4 and PW5 (land brokers) were also

called to look for prospective buyers for the disputed property.

When the brokers enquired from A5 regarding the presence of a

board outside the property, stating that the land belonged to Dr.

Subbiah, A5 told them that Dr. Subbiah would be eliminated

soon. To this, all the accused persons laughed and nodded in

approval.

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6. After this meeting, A1 and A3 started transferring cash to

A5, and the address details, car details and photographs of

deceased, were given by A3 and A5 to A7, who-in turn supplied

the same to his henchmen – A8, A9 and PW12. On 11.08.2013,

almost a month before the fateful day, A8, A9 and PW12 came

to Chennai from Anjugramam Village and stayed in Bakkiyam

Lodge at Sungaram Chetty Street upto 14.08.2013. The purpose

of this visit was to conduct reccy, to watch the movements of the

deceased and to execute the plan. On 14.08.2013, precisely a

month before the date of crime, the three accused persons went

to Billroth Hospital along with A7, where they met PW8, a friend

of A7. The plan could not be executed on 14.08.2013.

7. During the first week of September, A8, A9 and PW12

went to Tirupur along with A6 and A7 to meet DW2, who is the

brother-in-law of A6. As per the case, A5 had sent Rs.6.5 Lacs

to DW2 in several instalments and DW2 withdrew the said

amount and kept it in cash for making payments for the crime.

DW2 gave Rs.6.5 Lacs to A6 who, in turn, distributed Rs. 1.5

Lacs each to A8, A9 and PW12 and kept the remaining Rs.2

Lakhs with himself.

8. Thereafter, on 12.09.2013, A8, A9 and PW12 met A7, who

gave them Rs. 10,000/- each for purchasing a second-hand Pulsar

bike from PW29 from Valliyur. The bike was supposed to be

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used for the commission of crime and was sent to Chennai by

parcel. A9 accompanied the bike. A8 and PW12 reached Chennai

in a Government bus and stayed in Aruna Lodge upto

14.09.2013. They checked out of the Lodge at 12 o’clock and left

the hotel at around 12:45 PM. Since, the bike had developed a

mechanical problem, the accused persons took it to PW26 and

got it repaired. Eventually, they reached the scene of occurrence

at 4:00 PM. After reaching, A8 and PW12 went to the hospital

and met the Secretary of the deceased PW34 and enquired from

her regarding the time when the deceased would come out of the

hospital. After confirming the presence of the deceased, they

came to the place where the car of the deceased was parked,

which was opposite to Billroth Hospital at about 5:00 PM, and at

about 5:07 PM, the deceased left the hospital and when he

reached the location of car and attempted to enter his car, after

adjusting his rear-view mirror, A8 and A9 attacked the deceased

indiscriminately. During this time, PW12 kept watch and the bike

ready for the accused persons to escape from the place. As soon

as the culprits left, the deceased was rushed to the hospital.

9. Afterwards, PW1, the brother-in-law of the deceased came

to know about the attack on the deceased and rushed to Billroth

Hospital where the deceased was getting treatment.

Subsequently, after enquiries, he went to E4-Abiramapuram

Police Station and lodged a complaint (Ex. P1). On the said

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complaint, PW57 registered an FIR as Cr. No. l352 of 2013 for

the offence under Section 307 IPC (Ex. P162). Thereafter, PW57

went to the scene of the occurrence and examined PW1 at the

police station. He revisited the scene of occurrence at about 9:00

PM and prepared the Observation Memo (Ex. P3) and Rough

Sketch (Ex. P163). Thereafter, he seized the bloodstained earth

(M.0.37) and unstained earth particles (M.0.38) in the presence

of the witnesses. Thereafter, he checked the CCTV camera

installed in an apartment by the name “Shreshta Subhashree” and

discovered that the incident was captured in the camera.

10. In the complaint, PW1 referred to the enmity between the

family of the accused viz., A1 to A4 and the deceased regarding

the disputed land. On 23.09.2013, PW55 (subsequent

Investigating Officer/IO) received the information that Dr.

Subbaiah had passed away. He went to the hospital and sent the

body for a postmortem to Royapettah Government Hospital. He

examined the other witnesses, conducted an inquest and prepared

the inquest report (Ex. P150).

11. Thereafter, A3 and A4 surrendered before the concerned

Metropolitan Magistrate, Saidapet. On 27.09.2013, PW55 filed a

petition to take the accused into police custody, and on

29.09.2013, the Special Team brought A1 and A2 for enquiry.

PW55 arrested both of them, recorded their statements and

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produced them before the Magistrate for judicial remand. He

examined PW13 on 09.10.2013, and wrote letters to the

Association of the apartment owners of Shreshta Subhashree

apartments and also to the RR Donnelley Company to obtain the

hard disc containing the recording from the CCTV cameras. On

the same day, the President of Shreshta Subhashree Apartment

Owners’ Association, one Leela Natarajan/PW25 handed over

the hard disc to PW57, which was seized by him vide seizure

memo Ex. P28. The hard disc was marked as M.0.9. On the same

day, the Security Manager of R.R. Donnelley, one Dayalan (not

examined) handed over the hard disc M.O.10, which was seized

vide Ex. P29. He examined both of them and sent the hard discs

under Form-95 to the Court on 10.10.2013. On 22.10.2013, he

made a requisition before the Court to send the hard discs for

examination. On the same day, an order was passed and the hard

discs (M.0.9 and M.O.10) were sent to the Forensic Science

Laboratory at Myalpore for examination. Thereafter, the

investigation was handed over to PW56. Later, PW56 received a

letter from the Forensic Science Laboratory stating that the hard

discs could not be examined in the absence of DVR. He sought

for the DVR, however, he was informed that the DVR was

scrapped.

12. Investigation continued and the IO collected the call detail

records of the accused A1 to A4. On 29.01.2014, he again

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examined PW1, PW9 and PW13. On the basis of their statements

and investigation conducted thus far, the IO ascertained that A7

to A10 were also involved in the offence and arrested them on

the same day from a bus stop near Jain College, Thuraipakkam,

Chennai at about 6:00 PM. He recorded the statements of all the

accused A7 to A10 and on the basis of the confession of A8, he

seized a black-coloured shoulder bag (M.0.3), a bloodstained

shirt (M.0.44), and a bloodstained knife (M.0.1) vide seizure

memo (Ex. P19). The seizure was effected from a dilapidated

building near the Tahsildar’s Office near Chamier’s Road,

Chennai. On 31.01.2014, he made requisition for the conduct of

Test Identification Parade for witnesses, Vinothkumar (PW2),

Muthuvel (PW3) and Gopinath (PW9).

13. After the completion of investigation, the IO filed a final

report before the concerned Magistrate on 06.05.2015 for the

offences punishable under Sections 120-B, 109, 341, 302 read

with 34 of the IPC against A1 to A9. After compliance of Section

207 Cr.P.C., the case was committed to the Court of Sessions and

was registered as S.C. No.348 of 2015. After the accused persons

pleaded not guilty, the trial was commenced and during the trial,

A10 was granted pardon and was later examined as PW12. To

prove the case, the prosecution examined 57 witnesses as PW1

to PW57, marked 173 exhibits as Ex. P1 to P173, and marked 42

Material Objects as M.0.1 to M.0.42.

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14. The respondents/accused persons examined 3 witnesses as

D.W.1 to D.W.3 and marked 7 exhibits as Ex. D1 to D7. Court

Exhibits viz., C1 to 05, were also marked.

15. After trial, the Trial Court found all the accused persons

guilty and sentenced them to imprisonment under different

heads. For their conviction under Section 302 IPC, A1, A3, A4,

A5, A7, A8 and A9 were sentenced to death and in accordance

with Section 366 Cr.P.C., the sentences of death were sent for

confirmation to the High Court. Separately, the respondents also

assailed their conviction and sentence before the High Court.

Both sets of proceedings were disposed of by the High Court of

Judicature at Madras vide common judgment dated 14.06.20243

passed in R.T. No. 2 of 2021 and Crl. Appeal Nos. 262, 454, 455,

456, 457, 458, 459, 460 and 462 of 2022. By the said common

judgment, the High Court reversed the conviction of the

respondents and acquitted them under all the charges. The same

is under challenge before this Court and is hereinafter referred as

the impugned judgment.

IMPUGNED JUDGMENT

16. While setting aside the conviction of the respondents and

acquitting them of all the charges, the High Court re-appreciated

3 Hereinafter referred as “the impugned judgment”

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the evidence on record and found various faults with the findings

of the Trial Court. Before proceeding to the case before us, we

deem it necessary to discuss the grounds which prevailed before

the High Court in a bit more detail.

17. On the evidence of approver/PW12, the High Court

observed that the approver’s evidence was full of contradictions

and omissions. PW12 stated in his examination in chief that he

was aware of the meetings at the disputed land wherein the

conspiracy was forged, however, in his cross-examination, he

was confronted with his statement under Section 161 Cr.P.C.,

and he stated that he could not remember. It observed that as

regards the conspiracy meeting between A3, A5, A7 and A8

wherein the potential value of disputed land as Rs. 40 crores was

discussed, photograph of deceased was shown to A8, and A7 had

promised to execute the job with the aid of A8, A9 and PW12,

the approver PW12 firstly, in his confession, stated that he was

informed of the same by A8. Later, he improved his version in

examination-in-chief and cross-examination and incriminated

other accused persons. The Court also observed that this

improvement in the version of PW12 is also corroborated by the

evidence of PW56, who had recorded the confession of PW12.

The Court further observed that PW12 had also admitted that his

statement regarding the presence of a client PW53 during the

meeting at the house of PW5 was also not made in the statement

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and was improved later. As regards the presence of A6 also, the

Court observed that the participation of A6 in the conspiracy

meeting was also an improvement as it was not stated by PW12

in his statement to the police.

18. In further appreciation of the evidence of PW12, the Court

observed that the incriminating fact of payment by DW2 to A6,

following by disbursals to the assailants, was not stated by PW12

in his confession due to fear and was also a material

improvement. The Court also pointed out other contradictions

from the testimony of PW12, in comparison with his police

confession, and observed that PW12 stated various vital facts for

the first time in his deposition. The Court also observed that in

his police confession, PW12 had denied any direct knowledge of

the conspiracy, however, he uttered otherwise in his deposition

in the Court. In addition to the improvements in the version of

PW12, the Court also disbelieved the reason assigned by PW12

for turning an approver i.e. remorse. The Court observed that

PW12 was questioning the prosecution’s case all along and had

also moved an application seeking protection from harassment

by the police during investigation. The Court further observed

that the circumstances wherein PW12 became an approver

required material corroboration of his evidence. The relevant part

reads thus:

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“20. …

(d). … As we have stated earlier, the delay in

filing the application and the time chosen by him

though may not be the grounds to eschew his

evidence, but are factors to be kept in mind while

appreciating his evidence. Therefore, this Court in

the peculiar facts of this case while appreciating

PWl2’s evidence has to look for corroboration on

all the material aspects and the corroboration has

to be through unimpeachable evidence.”

19. The Court then examined the evidence led by the

prosecution to prove the conspiracy. The Court examined the

evidence of PW53, the client who overheard the conversation

between the accused persons, and observed that he was merely a

chance witness whose presence was highly doubtful. It further

observed that he was introduced as a witness at a belated stage

and it was a desperate attempt by the prosecution to suit its case.

The Court also observed that the circumstances wherein PW53

was found and examined by the IO also belied common sense and

logic.

20. The High Court observed on similar lines regarding the

evidence of PW4 and PW5, and held that they were introduced as

witness to suit the prosecution version. The Court observed that

both the said witnesses were examined after considerable delay

and there was no explanation for the same. The testimony of

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PW32, the photographer who had taken printout of the

photograph of the deceased at the instance of A8, was also

discarded by the High Court by observing that he could not have

remembered all his customers after such delay and he failed to

produce any other record of the visit by the accused persons.

21. Further, the Court dealt with the statement of PW6 who

deposed regarding the handing over of visiting card of the

deceased to A8 and PW12 by A5 as well as disclosure of the

details of the deceased’s work place to the assailants. The Court

observed that there was nothing unusual in the fact that A5 was

carrying the visiting card of the deceased and the seizure of

visiting card of the deceased from A5 was also not of any

consequence. The Court discarded the statement of eye witness

PW3 and observed that his testimony was unnatural and was

recorded five months later. It also observed that the conspirators

would not have discussed the minute details of conspiracy in a

manner that it could be heard by a third person such as PW3.

22. As regards money trail, the High Court observed that the

money was indeed transferred as alleged by the prosecution, but

the purpose of such transfers was not clear in light of the

testimony of DW2, who ought to have been examined as a

witness by the prosecution to ascertain the purpose of transfer.

The Court noted that DW2 was examined on behalf of the defence

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and he deposed that such transfers had taken place previously also

and the money was meant for missionary work and to help

youngsters.

23. The Court also examined the testimony of PW37, an

independent witness who had witnessed the exchange of money

between the accused persons, and observed that PW37 was a

chance witness whose presence has not been explained by the

prosecution. It further observed that the IO could not explain as

to how he discovered PW37 and found it to be unnatural that

PW37 handed over the money to the accused persons in cash in

the presence of a stranger. Further, the Court found the evidence

of DW2 to be more reliable than that of PW37. The Court also

noted that DW2, Maheshwaran and Babu were examined by the

IO during investigation, however, they were not examined by the

prosecution during trial. The non-examination of the said

witnesses during trial, as per the impugned judgment, raised

doubts in the case of the prosecution.

24. As regards the call details records (CDRs) indicating that

the accused persons were in touch with each other, the Court

observed that the said call detail records were received by PW45

from the telecom companies. However, no witnesses were

examined from the telecom companies to prove the same and the

CDRs were placed on record along with the certificate under

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Section 65-B of Indian Evidence Act, 18724 of PW45. The Court

observed that the prosecution ignored the fundamental principle

of proving a document and merely because PW45 had collected

the CDRs during the course of investigation, he did not become

the competent person to prove the same.

25. Thereafter, the High Court dealt with the extra-judicial

confession made by A6 to PW7 and observed that PW7 was a

complete stranger to A6 and there was no corroboration of the

said confession. It further observed that an extra-judicial

confession is a weak piece of evidence and without corroboration

of the confession made to a stranger, it does not inspire

confidence of the Court.

26. As regards motive, the High Court observed that it is the

admitted position that there were disputes between the parties

involved in the case, however, mere pendency of dispute is of no

consequence if there is no sufficient evidence on record. The

Court further observed that since conspiracy was not proved,

mere motive is of no consequence.

27. The High Court further noted that there was a considerable

delay in the examination of witnesses and held that the

prosecution did not succeed in explaining the delay to the

4 Hereinafter referred as “Evidence Act”

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satisfaction of the Court. It further observed that the documents

were not dispatched to the Magistrate without delay and the same

was also without an explanation. The relevant paras of the

impugned judgment read thus:

“23. …

(vi) From the above judgments, it would be clear

that the delay in the examination of witnesses may

not be a reason to reject the testimony of the

witness, provided the investigating officer and the

witness offered plausible explanation for the

delay. In any case, where there is a delay in the

examination of witness, the Courts also have to be,

cautious in appreciating the evidence, even if

some explanation is offered.

(vii)- As to whether the delay in the examination

would affect the credibility of the witnesses would

depend on the facts and circumstances of each

case. Factually, in the instant case, we find that the

delay has not been explained properly and the

explanation sought to be given by either the

witnesses or the investigating officer as discussed

earlier, belies common sense.”

28. While discussing the evidence against the accused persons

separately, the High Court observed that the prosecution failed to

prove the criminal conspiracy against accused nos. 1 to 7. As

regards the assailants (accused nos. 8, 9 and PW12), the Court

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examined the electronic evidence on record and observed that Ex.

P155, a pen drive containing the backup copy of the CCTV

footage extracted from the hard disk, could not be relied upon by

the prosecution as it contained a truncated copy which cannot be

relied upon to identify the accused persons. Further, the Court

observed that Ex. P155 was never shown to the eye witnesses

PW2 and PW3 for the purposes of identification. The Court also

doubted the manner in which cloned copies of the CCTV footage

were made by PW54 as the hard disk was not functioning when

it was originally sent to the Forensic Science Laboratory, for want

of DVR. Further, PW54 could not make the cloned copies, when

a request in that regard was made by the defence, on the ground

of hard disk failure. The Court analyzed this issue in light of the

testimony of PW57, who had deposed that before collecting the

hard disk from the concerned Society, a copy of the CCTV was

made and handed over to Constable Parthiban in a pen drive. The

Court noted that the said Constable was never examined as a

witness by the prosecution and since, the original footage could

not be retrieved from the hard disk, it was probable that the gait

comparison of the accused persons was based on the copy of the

footage and not the original footage. The relevant part reads thus:

“(ix) It may be relevant to point out here that

PW57 had stated in the cross examination that

after the occurrence and before collecting the hard

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disc from Shreshta Subhashree apartments, he

copied the footage on a pen drive through a

Constable by name Parthiban, who was not

examined by the prosecution. This pen drive was

neither sent to the Court nor marked by the

prosecution. However, strangely, when the

forensic science lab could not retrieve the video

due to the absence of DVR, it is not known as to

how, PW54 alone could take a backup copy, that

too a truncated version and store it in Ex.P155.

Hie fact that cloned copies also could not be made,

raises doubt as to whether PW54 had taken the

backup copy from the hard disc, especially in the

light of PW57’s evidence that he was in possession

of a pen drive taken earlier, immediately after the

occurrence.”

29. The Court further observed that the IO PW56 never made

any request for obtaining the DVR from PW25, as is evident from

the testimony of the latter. On this basis, the Court discarded Ex.

P155 as a reliable piece of evidence. Importantly, the Court then

analyzed Ex. P157, the report filed by PW54, wherein she opined

that the gait pattern of the individuals seen in the two videos

(CCTV footage and demonstration video) were same. The Court

questioned the right of the investigating agency to compel the

accused persons to re-enact the occurrence and examined the

admissibility of such evidence. Considering the mandate of

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Article 20(3) of the Constitution of India, 19505, the Court held

that re-enactment of the occurrence by the accused persons

amounts to personal testimony during police custody and the

same is inadmissible in evidence. Further, the Court found that

the demonstration video was hit by Section 25 and 26 of Evidence

Act.

30. The High Court’s opinion as regards visual/CCTV

evidence is encapsulated in the following para:

“(iii) Considering the fact that the cloned copies

could not be produced, because of alleged

mechanical failure; the fact that the investigating

officer had copied the footage on a pen drive and.

had not produced it before the Court; the version

of PW54 that a truncated backup of the footage

was taken being doubtful; besides the act of the

investigating officer in referring it to a private lab

and the ‘not so-good’ reputation of the said private

lab; that the prosecution did not establish that the

DVR which was called for by the Government

Lab was scrapped’ and for the other reasons

mentioned above, we are of the view that no

reliance can be placed either on Ex.P155-pen

drive or Ex.PI57-report of PW54.”

31. As regards the eyes witnesses, the High Court observed

that the statements of PW2 and PW3 were dispatched to the

5 Hereinafter referred as “the Constitution”

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Magistrate after considerable delay and the same rendered the

witnesses as unreliable. The Court further observed that PW3 was

a tutored witness in the hands of the prosecution and his testimony

was artificial in nature. Similarly, the Court found the evidence

of PW2 also as unreliable as he was a chance witness, and

discarded their evidence even for the purpose of corroboration of

the version of PW12/Approver. The Court also discarded the Test

Identification Parade report of the Magistrate on the ground that

the Magistrate/PW51 admitted that all three accused persons were

different in appearances and therefore, the dummy inmates could

not have been similar to all three of them. This, as per the High

Court, violated the requirement that identification parade must be

carried out in the presence of similarly looking persons. The

Court observed that test identification parade of the three accused

persons ought to have been carried out separately. The Court also

observed that the TIP was vitiated because PW56 had shown

pictures and CCTV footage of the incident to the witnesses before

the parade.

32. Further, the High Court discarded the evidence of PW28,

the Manager of Aruna Lodge, by observing that the arrival

register of the lodge was never seized by the IO, the ledger

marked as M.O. 17 did not record any address or name of A8,

who purportedly signed the same, and the signatures were never

compared with the signatures of A8. The Court also found

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infirmity in the fact that no test identification parade was

conducted for PW28 to identify the accused. The Court also

disbelieved the identification of the accused by PW27 (room boy

of Arun Lodge) in open Court as the same was done after a lapse

of six years and no TIP was conducted earlier.

33. On these parameters, the High Court re-appreciated the

entire evidence on record and returned a finding of acquittal of all

the accused persons. Consequently, the sentences were also set

aside and the accused persons were released. The said judgment

is under challenge before us.

THE CHALLENGE

34. Taking exception to the impugned judgment, the appellant

State has approached this Court, broadly urging the following

grounds:

i. That the conviction by the Trial Court was based on

credible and reliable evidence including the

evidence of eye witnesses, approver, call details

records, money trail, electronic and scientific

evidence etc.;

ii. That the High Court did not consider the

circumstantial evidence of conspiracy and prior

connection between the accused persons. Further,

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the Court proceeded on a prejudicial notion that all

conspiracies are essentially hatched in secrecy and

no conspiracy could be heard by any third person;

iii. That the Court erred in rejecting the call detail

records, as the CDRs were duly obtained by the

witness who had produced them through email and

the same were produced before the Court along with

a certificate under Section 65-B of Indian Evidence

Act;

iv. That the Court erred in rejecting the evidence of the

eye witnesses, who had no prior enmity with the

accused persons and whose testimonies were duly

corroborated by the evidence of PW12 and

electronic evidence;

v. That the Court erred in rejecting the evidence of the

approver on the basis that it was not consistent with

earlier statement/confession given to the police, as

some omissions are bound to happen in a

statement/confession given to the police under fear,

coercion or influence;

vi. That the High Court erroneously exhibited an

additional document Ex. C6 (Letter written by the

Criminal Appeal Nos. 2493-2502 of 2025 Page 24 of 96

Trial Court on the administrative side) during the

appeal without following the procedure under

Section 294 Cr.P.C. and directly at the time of

judgment, without providing any opportunity to the

prosecution to question the same;

vii. That the High Court laid undue emphasis on the

alleged bias of the concerned Trial Judge who had

granted the pardon to PW12, despite the fact that no

judgment was rendered by the said Judge and the

potential conflict was also disclosed by the

concerned Judge herself in order to maintain the

sanctity of the proceedings;

viii. That the Court erred in holding that the reenactment

of the crime by the accused persons

amounted to confessional statements within the

meaning of Section 25 of Evidence Act and was hit

by Article 20(3) of the Constitution. It is submitted

that voluntary re-enactment of crime by the accused

persons, without undue influence or coercion, does

not amount to confession and it only indicates the

familiarity of the accused persons with the crime

scene;

Criminal Appeal Nos. 2493-2502 of 2025 Page 25 of 96

ix. That the High Court erred in summarily rejecting

the testimony of PW19 regarding the recovery of

incriminating material, such as weapon of offence,

blood-stained clothes etc., in furtherance of the

statement of the accused. It is urged that the said

recovery is duly admissible as per Section 27 of

Evidence Act and the same was made in the

presence of a neutral government witness;

x. That the Court erred in not analyzing the frivolous

defence taken by A8 that the deceased died by

accident. The failure of A8 to substantiate the

defence ought to have resulted in an adverse

inference against him;

xi. That the High Court erroneously rejected the

evidence related to CCTV footage merely on the

basis of doubtful credibility of the private lab, and

without examining the quality of evidence and

corroborative factors. It is submitted that mere

involvement of a private lab does not automatically

disqualify the evidence as procedural safeguards

and chain of custody were duly maintained;

xii. That the High Court laid undue emphasis on the

non-availability of DVR, instead of independently

Criminal Appeal Nos. 2493-2502 of 2025 Page 26 of 96

examining the probative value of the evidence on

record i.e. CCTV footage and report Ex. P157;

35. The written submissions filed on behalf of the State of

Tamil Nadu also contain similar submissions. On similar lines,

the complainant has also filed detailed written submissions. We

have carefully gone through the same, however, for brevity and

to avoid repetition, we are not reproducing the submissions.

36. Responding to this challenge and arguing in favour of the

impugned judgment, the accused persons have addressed

separate arguments and have filed separate written submissions.

It is deemed proper to incorporate the contentions raised on

behalf of the accused persons separately, so as to not curtail the

zone of consideration in any manner.

GROUNDS URGED BY ACCUSED NO. 1, 2 & 3

37. Accused no. 1, 2 and 3 have broadly urged the following

grounds:

i. The appellate court must not ordinarily reverse a

judgment of acquittal as long as the impugned

judgment reflects a legally plausible view and is not

unsustainable;

Criminal Appeal Nos. 2493-2502 of 2025 Page 27 of 96

ii. The evidence of PW12 is unreliable, hearsay and

full of material contradictions and omissions as

material aspects of his evidence are missing from

his testimony recorded under Section 161 Cr.P.C.;

iii. The Trial Court did not properly appreciate the

omissions and contradictions and brushed them

aside by observing that they were immaterial;

iv. The testimony of PW12 was not corroborated in

accordance with law and the Trial Court cursorily

concluded that it was duly corroborated, without

noting that the witnesses who purportedly

corroborated PW12 i.e. PW4, PW5 and PW53 were

themselves not reliable;

v. The High Court rightly concluded that PW53 was

merely a chance witness who was a total stranger to

the other accused persons, except A5. Further, the

Court rightly concluded that the presence of PW53

was not properly explained and there was an

inherent improbability in his version;

vi. The Trial Court did not examine the credibility of

PW4 and did not examine crucial aspects such as

belated disclosure, suspicion and contradiction

Criminal Appeal Nos. 2493-2502 of 2025 Page 28 of 96

regarding the discovery of PW4 as a witness by the

IO, improbability of the version of PW4 and

absence of justification of the presence of PW4 at

the spot;

vii. The evidence of PW5 is equally vulnerable for the

reasons applicable to PW4. Additionally, PW5

chose to appear after a considerable delay despite

being a witness of the conspiracy meeting and

despite being aware of the murder of the deceased.

Further, his statement was dispatched to the

Magistrate after inordinate delay without any

plausible explanation;

viii. The CDRs have not been proved in accordance with

the law as the same were not proved by the author

of the document i.e. nodal officer of the telecom

company. PW45 was neither the author nor witness

of such authorship of the CDRs and he was merely

a recipient who could not have proved the same;

ix. As per Section 65-B of Evidence Act, CDRs could

have been proved only by a person having lawful

control over the computer that produced the

electronic record and therefore, a certificate under

Section 65-B ought to have been filed by the

Criminal Appeal Nos. 2493-2502 of 2025 Page 29 of 96

concerned nodal officer of the telecom company.

Since, PW45 had no lawful control over the

computer which was used to produce the CDRs, he

could not have filed a certificate under Section 65-

B in support of the CDRs;

x. PW45 produced the CDRs in the Court in Excel

format, which could be easily edited or manipulated.

He ought to have filed the same in PDF format to

avoid any possibility of manipulation;

xi. The money trail between the accused persons was

not unusual as the accused persons were known to

each other and the explanations furnished by them

at the stage of examination under Section 313

Cr.P.C. were plausible and acceptable on the anvil

of preponderance of probabilities;

xii. The Investigating Officers failed to carry out

independent investigation in the matter as they

admitted that they did not investigate other persons,

who had claimed the disputed land and had enmity

with the deceased;

xiii. The entire investigation was directed at the instance

of PW1, and PW57 admitted that he obtained

Criminal Appeal Nos. 2493-2502 of 2025 Page 30 of 96

information of the case from PW1, who was

conducting his own investigation alongside;

xiv. The entire investigation was influenced by DCP

Thiru Balakrishnan who got married to the daughter

of the deceased. PW57 (IO) admitted that the

statements of 39 out of 89 witnesses were recorded

after DCP Balakrishnan took charge of the area;

xv. The statement of PW12 recorded during the course

of investigation was a statement under Section 161

Cr.P.C. and it was permissible to use the same as per

Section 162 Cr.P.C.;

xvi. The statement of PW12 recorded under Section 161

Cr.P.C. could be used for the purpose of

contradiction during evidence, and omissions and

contradictions from the same could be relied upon

to impeach the credibility of the witness;

GROUNDS URGED BY ACCUSED NO. 4

38. Accused No. 4 has broadly urged the following grounds;

i. The prosecution has failed to prove the conspiracy

beyond reasonable doubt and the witnesses of the

prosecution are unreliable and chance witnesses;

Criminal Appeal Nos. 2493-2502 of 2025 Page 31 of 96

ii. It is settled law that the evidence of an approver

requires material corroboration, however, the

evidence of PW12 has not been corroborated by

other evidence on record;

iii. The presence of A4 in Chennai has not been proved

on the basis of credible evidence as PW38 was not

the reporting officer of A4 who sanctioned his leave,

and the reporting officer has not been examined by

the prosecution. Furthermore, the manual

attendance register and leave application of A4 were

not produced by the prosecution;

iv. The evidence of PW13 was not even considered by

the Trial Court and her statement that she saw A4

around her house in the 2nd week of September,

2013 was not corroborated by any evidence.

Furthermore, she identified A4 only after seeing his

picture on television despite the fact that they were

relatives.

GROUNDS URGED BY ACCUSED NO. 5

39. On behalf of accused No. 5, broadly, the following reasons

were advanced for sustaining his acquittal and the impugned

judgment:

Criminal Appeal Nos. 2493-2502 of 2025 Page 32 of 96

i. The State has failed to show any perversity in the

impugned judgment and the judgment reflects a

possible view. Further, it is settled law that if the

judgment under appeal reflects a legally possible

view, it cannot be reversed unless anything

erroneous or perverse is found out;

ii. The prosecution failed to delineate the incriminating

circumstances and to form a complete chain of such

circumstances, which must have been identified and

ought to have been connected with the accused

persons;

iii. The prosecution has failed to dispel the taint of

unfair investigation which reflected a pattern of

planting witnesses, belated examination of

witnesses, belated forwarding of their statements

etc.;

iv. The entire case against A5 is circumstantial in

nature and is filled with weak links;

v. The prosecution has used one infirm piece of

evidence to support another by using PW53, PW4,

PW5 and PW37 to support PW12 and later, to rely

Criminal Appeal Nos. 2493-2502 of 2025 Page 33 of 96

on the version of PW12 to support the former

witnesses;

vi. The role attributable to A5 is distinct in nature as he

was not directly involved in any land dispute with

any of the parties and has been implicated merely on

the basis of association with the family of A1;

vii. A5’s role as a legal professional is admitted and

purely professional acts cannot be converted to

attribute any criminal motive or to infer a link

between A5 and the crime in question;

viii. The threat of “dire consequences” allegedly

extended by A5 is completely vague and is lacking

in material particulars such as the words used,

presence of other persons, to whom it was extended

etc.;

ix. The version of PW9 as regards the naming of A5 in

the complaint of trespass over the disputed land, is

hearsay as he learnt of the same from LW49, who

was not examined by the prosecution citing

availability of overwhelming evidence;

x. The versions of PW9 and PW13 as regards the life

threats extended by A5 are also based on hearsay as

Criminal Appeal Nos. 2493-2502 of 2025 Page 34 of 96

they did not directly hear any such threat, and thus,

their versions are unreliable;

xi. The version of PW53 to prove the conspiracy

meeting at the house of A5 is a complete fabrication

as no trained lawyer or hired killers would loudly

conspire a murder so as to enable the strangers to

hear. Further, the statement of PW53 was recorded

after 7 months and he was able to recall the precise

details of the meeting perfectly, thereby indicating

that he was introduced as an afterthought;

xii. The witnesses of the second conspiracy meeting i.e.

PW4 and PW5 are also chance witnesses whose

discovery was completely unnatural and therefore,

reliance cannot be placed upon their testimonies;

xiii. The version of PW3 is completely unnatural as the

assailants are not expected to be discussing the

details of the conspiracy, benefits of committing the

offence, involvement of other conspirators etc.,

immediately before the commission of the offence

and that too, in the presence of strangers;

xiv. PW3 could not explain his presence at the place of

occurrence, especially because he was visiting the

Criminal Appeal Nos. 2493-2502 of 2025 Page 35 of 96

bank on a Saturday evening. Further, the IO did not

enquire from HDFC Bank as to whether PW3

maintained a bank account at the bank and whether

he had actually met someone at the bank;

xv. The recovery of a visiting card M.O. 8 is of no

importance as a visiting card is not an incriminating

material;

xvi. The money trail relied upon by the prosecution is

also highly improbable as the accused persons

would not have indulged in any bank transfer for

such a purpose, and if the money was actually meant

for any illegal activity, it would have been handed

over in cash as the assailants lived 35 km away from

the village of A1 to A6;

xvii. The version of PW37 is unreliable and improbable

as A6 would not have distributed the cash to the

assailants in the presence of a complete stranger;

xviii. The testimony of DW2 is unshaken and presents a

reasonably possible view insofar as the money trail

is concerned. Furthermore, the prosecution neither

made DW2 as an accomplice in the case nor

Criminal Appeal Nos. 2493-2502 of 2025 Page 36 of 96

examined him as a witness which raised suspicion

on the prosecution;

xix. The bank transfers only prove the movement of

money and not the purpose of such movement;

xx. The testimony of an approver must satisfy the twintest

of reliability and sufficient corroboration as per

the dictum of this Court in Sarwan Singh v. State

of Punjab6;

xxi. The pardon granted to PW12 is vitiated by a

reasonable apprehension of bias on the part of the

concerned Sessions Judge and in view of such

apprehension, the testimony of PW12 must be

approached with greater circumspection;

xxii. The statement given by PW12 to the police duly

qualified as a statement under Section 161 Cr.P.C.

and the same could have been used to contradict

PW12 in accordance with Section 162 Cr.P.C.;

xxiii. The decision in Narayan Chetanram Chaudhary

and another v. State of Maharashtra7 is perincuriam

as it failed to consider the decision of 3-

6 AIR 1957 SC 637

7 (2000) 8 SCC 457

Criminal Appeal Nos. 2493-2502 of 2025 Page 37 of 96

Judge bench in Nandini Satpathy V. P.L. Dani8 and

Kartar Singh v. State of Punjab9 (5-Judge bench).

Further, the decision in Narayan Chetanram

Chaudhary has been disapproved in the recent

decision in P. Krishna Mohan Reddy v. State of

Andhra Pradesh10.

xxiv. There are material contradictions, omissions and

improvements in the version of PW12 on the aspects

of direct knowledge of conspiracy, date of

conspiracy meeting, presence of PW53/client,

second conspiracy meeting, cash payment of Rs. 1.5

lacs each to the assailants, visit to DW2’s house and

recovery of the visiting card of deceased from A5;

xxv. The prosecution has violated the prompt-dispatch

rule as the statements recorded under Section 161

Cr.P.C. were not transmitted to the Magistrate

forthwith; some were forwarded selectively and

others were sent en masse;

GROUNDS URGED BY ACCUSED NO. 6

40. Accused No. 6 urged the following grounds:

8 (1978) 2 SCC 424

9 (1994) 3 SCC 569

10 2025 SCC Online SC 1157

Criminal Appeal Nos. 2493-2502 of 2025 Page 38 of 96

i. A5 and DW2 had long running monetary

transactions even prior to the conspiracy in

question, and the money transferred by A5 to DW2

during the period of conspiracy was Rs. 4,50,000/-

only, which did not match with allegations levelled

by the prosecution;

ii. No recovery of the amount in question was made

from any person and there is no explanation as to

how the said amount was spent;

iii. A6 was not a part of the first conspiracy meeting or

the land dispute between the other accused persons

and the deceased. Further, there was no allegation

against A6 in the evidence of PW13 or PW9;

iv. The evidence of the approver is unreliable and there

are material omissions and contradictions in his

evidence, which makes it unsafe to place reliance

upon the same;

v. There is no infirmity in the findings of the High

Court insofar as A6 is concerned and his acquittal

cannot be reversed by this Court in the exercise of

powers under Article 136 of the Constitution;

Criminal Appeal Nos. 2493-2502 of 2025 Page 39 of 96

GROUNDS URGED BY ACCUSED NO. 7

41. Accused No. 7 has advanced the following grounds:

i. The entire case against A7 is based on unreliable

and belated witnesses and the evidence of PW2,

PW4, PW5, PW53 and PW12 has not been

corroborated by any other evidence;

ii. There is no credible evidence of conspiracy and

there are serious investigative lapses such as

unexplained delays in dispatching statements,

failure to conduct test identification parades, nonexamination

of material witnesses etc;

GROUNDS URGED BY ACCUSED NO. 8

42. The following grounds have been urged on behalf of

Accused No. 8:

i. The reversal of an acquittal must be done only in

rarest of the rare cases wherein the Appellate Court

finds illegality or perversity pertaining to the vital

facts of the case;

ii. The evidence of PW2 is completely unreliable as his

disclosure was belated and his statement was

Criminal Appeal Nos. 2493-2502 of 2025 Page 40 of 96

dispatched after considerable and unexplained

delay;

iii. The entire testimony of PW2 has been tailored to

match the CCTV footage of the incident, as it is

improbable that he could not remember the details

of the incident two days after the incident, but

remembered all the details after more than three

years from the incident;

iv. The material contradictions between the statements

of PW2 recorded under Section 161 Cr.P.C. and 164

Cr.P.C. cannot be reconciled and the contradictions

indicate that PW2 was not actually present at the

place of occurrence;

v. Common features such as belated disclosure,

belated dispatch of statements, open discussions

regarding conspiracy in front of strangers, sudden

appearance and disappearance, unnatural discovery

etc. are applicable to all the chance witnesses of the

prosecution including PW2, PW3, PW4, PW5, PW8

and PW53;

vi. The knowledge of PW12 is co-terminus with the

knowledge of the investigating officer and despite

Criminal Appeal Nos. 2493-2502 of 2025 Page 41 of 96

being an accomplice, he has not disclosed any

additional or exclusive information regarding the

commission of the offence which could have added

credibility to his version;

vii. The testimony of PW12 is wholly derived from the

knowledge of the prosecution and the improvements

in his versions suggests that he kept on improving

as the prosecution imparted him with more

knowledge with the passage of time;

viii. The recovery of sickle and shirt are artificial as the

recovered sickle was not sealed and blood report is

also inconclusive. Further, it is improbable that the

accused would throw the knife near a building close

to the police station;

ix. The evidence of PW32 is wholly unreliable and

unnatural as he had no reason to remember the

customers who had visited his shop on a single

occasion. Further, PW32 admitted that the police

had pointed A8 to him;

x. No face analysis of the persons seen in the CCTV

was carried out and in the absence of face analysis,

Criminal Appeal Nos. 2493-2502 of 2025 Page 42 of 96

gait analysis report becomes the ‘worst’ form of

available evidence;

xi. No reliance could be placed on the CCTV footage

as the hard disk was seized after a month, and when

the same was sent to FSL, it could not be read and

was returned for want of DVR. Later, the same hard

disk was sent to Truth Labs and the said private lab

was able to read it without DVR. Further, when the

accused persons asked for a cloned copy of the

footage and the hard disk was resent to Truth Labs,

the same could not be read again due to mechanical

failure;

xii. The presumption applicable to a government

laboratory is not applicable to a private laboratory;

xiii. Gait analysis is an imperfect and imprecise science

and has not been upheld by any decision of this

Court. Further, it is not unique to any person like

DNA and there is a possibility of mimicking or

copying in the gait analysis;

xiv. The comparison of CCTV footage was not made

with the natural gait of the accused persons, rather,

they were made to perform the same movements

Criminal Appeal Nos. 2493-2502 of 2025 Page 43 of 96

and to re-enact the occurrence. Thus, the gait of the

persons in the CCTV footage and the re-enactment

video was bound to be the same;

GROUNDS URGED BY ACCUSED NO. 9

43. On behalf of Accused No. 9, the following grounds have

been advanced:

i. The presence of A9 in the first conspiracy meeting

has not been proved;

ii. PW 32 did not identify A9 as the person who had

visited his shop for taking print of the photograph of

the deceased and the statement of PW12 to that

effect has not been corroborated;

iii. The presence and role of A9 has not been proved by

the prosecution and the eyes witnesses PW2 and

PW3 are tutored witnesses;

iv. The call detail records between the accused persons

have not been proved and the CCTV footage cannot

be relied upon in evidence;

v. The approver PW12 is an unreliable witness and his

evidence is full of material contradictions and

omissions. The said point has been argued by all the

Criminal Appeal Nos. 2493-2502 of 2025 Page 44 of 96

accused persons on similar grounds and thus, the

particulars of this ground are not being reproduced;

DISCUSSION & ANALYSIS

44. Having set out the case set up by the respective parties, we

may now proceed to consider the seminal question i.e. whether

the respondents/accused persons have committed the offences

mentioned above in relation to the death of Dr. Subbaiah. We

have heard Ld. Counsels appearing for the respective parties at

length and have carefully gone through the record.

45. The respondents have collectively advanced an argument,

which needs to be addressed at the outset, that this Court is not

expected to disturb the impugned judgment until and unless there

is a perversity or illegality or erroneous finding in the impugned

judgment. To buttress, it is submitted that even if there are two

possible views, the view taken by the earlier Court be not

disturbed. No doubt, the said submission reflects the settled

position of law. However, it equally applied to the High Court as

well, when it sat in appeal over the judgment of the Trial Court,

and therefore, it is for this Court to examine whether the High

Court has committed an error in disturbing the findings of the

Trial Court. Nevertheless, this Court is faced with a situation

where two competent Courts have arrived at opposite

conclusions on appreciation of the same set of evidence.

Criminal Appeal Nos. 2493-2502 of 2025 Page 45 of 96

Naturally, it falls upon this Court to re-appreciate the evidence

and to deliver a final finding.

46. The case of the prosecution, as detailed above, rests on oral

as well as documentary evidence. The prosecution has examined

57 witnesses, exhibited 173 documents and 42 material objects

to prove its case. As per the prosecution, A8, A9 and PW12 are

the assailants who committed the murder of the deceased and

collectively, all nine accused persons are the conspirators behind

the said murder. The evidence on record is both direct and

circumstantial, and we may begin with the evaluation of the

direct evidence.

47. PW2 is the first eye witness, who directly witnessed the

commission of offence. He deposed regarding his identity, his

purpose of visit at the place of occurrence, the presence of

deceased, attack on deceased by three assailants, body parts

which were attacked by the three assailants, weapon of assault,

identities of the assailants as A8, A9 and A10 (later PW12) and

the act of calling ambulance. He deposed that he waited for some

time after the deceased was taken to the hospital and thereafter,

he left. He identified the knife in the Court as M.O.1. He deposed

that he went to the police station after two days and in view of

the assault witnessed by him, he was of the view that the deceased

must have died on the spot and therefore, he had stated to the

Criminal Appeal Nos. 2493-2502 of 2025 Page 46 of 96

police that Dr. Subbaiah died on the spot. However, he was

informed by police that Dr. Subbaiah was undergoing treatment

at that time. He also deposed regarding the identification of the

accused persons in Judicial Custody in the presence of the

Magistrate as well as his statement under Section 164 Cr.P.C.

recorded by the Magistrate. PW2 was extensively crossexamined

on behalf of the accused persons, however, his

testimony has remained fairly consistent on material particulars.

No doubt, there are slight contradictions such as whether PW2

was sitting or standing when he witnessed the commission of

murder. However, once the testimony is evaluated on its overall

merit, it appears to be consistent. The contradictions appear in

aspects which are immaterial to the case. The accused persons

have suggested that PW2 was a stock witness, however, there is

nothing to substantiate the same and the accused persons have

merely suggested so without anything more. Furthermore, the

accused persons have not been able to show any association of

PW2 either with the deceased or assailants or the police. The

profession of PW2 is also largely admitted as there are questions

in the cross-examination regarding the advertisements made by

PW2 in the newspaper regarding AC repair work. On being

asked, PW2 also disclosed the name of owner and registered

number of the vehicle/TATA Ace in which he had arrived at the

place of occurrence.

Criminal Appeal Nos. 2493-2502 of 2025 Page 47 of 96

48. PW3 is the next eye witness, who happened to visit the

HDFC Bank near the place of occurrence and was waiting

outside the bank with one Mr. Gopinathan when the incident took

place. He overheard a conversation between the assailants

wherein they expressed their resolve to successfully murder Dr.

Subbaiah, vowed to not repeat the failure of the first attempt and

discussed their expectation of getting a sum of Rs. 50 Lacs from

Advocate Williams/A5 and Dr. James/A7, through Basil/A3 and

Boris/A4, on successful completion of the task. PW3 also

deposed regarding the manner and sequence of assault on the

deceased and the same completely corroborates the sequence

narrated by PW2. He identified the weapon M.O.1 as well as the

accused persons during the test identification parade conducted

by the Magistrate. He admitted Ex. P2 as his statement recorded

by the Magistrate.

49. Furthermore, he provided the account number of the

account maintained by him at the concerned branch and specified

the purpose of visit i.e. to know regarding KYC, which aligns

with his visit on a Saturday. He specifically clarified that he did

not come for any cash transaction. Unlike a tutored witness, PW3

specifically deposed that the assailants did not use the word

“murder”, thereby meaning that the language used by the

assailants was of an indirect nature, which is quite natural. A

tutored testimony would have attributed a direct statement to the

Criminal Appeal Nos. 2493-2502 of 2025 Page 48 of 96

assailants, disclosing the material particulars of the offence. The

discovery of PW3 has also been explained and we find nothing

unnatural if PW3, being a stranger, found it more convenient to

stay away from a murder investigation for a considerable time.

What is important is that there is no prior association or personal

interest or motive which could be imputed to PW3, who has fairly

passed the test of an independent witness. Furthermore, he

corroborated the testimony of PW2 and confirmed that during the

assault, he had heard the words “do not cut brother”. As per PW2,

these were the words uttered by PW2 during the assault. PW3

was also extensively cross-examined regarding the surroundings

of the place of occurrence and no discrepancy was highlighted

which could raise a doubt on his presence at the spot.

50. On a comprehensive analysis of the eye witness accounts

of PW2 and PW3, we are of the view that their testimonies are

wholly incriminating and there is nothing unnatural or doubtful

regarding their presence at the place of occurrence. Their

presence is duly explained and material particulars related to

their visit have been disclosed by both the witnesses in their

cross-examination. Furthermore, the manner of assault and

nature of injuries specified by the eye witnesses are consistent

with the medical examination reports, which is a material

corroboration.

Criminal Appeal Nos. 2493-2502 of 2025 Page 49 of 96

51. The cross-examination conducted on behalf of the accused

persons is all encompassing and even crossing the line of

relevance at various stages. What is consistent is an attempt to

suggest contradictions and omissions in the testimonies of PW2

and PW3. However, we may suffice to note that no material

contradiction has surfaced and the minor contradictions appear

quite natural. Furthermore, there is a gross procedural infirmity

in the manner of contradiction of the PWs as at various stages,

contradictions have been recorded without confronting the

witnesses with the contradictory portions from their previous

statements under Section 161 Cr.P.C. We have no hesitation in

observing that the same is irregular and not in conformity with

the procedure.

52. PW4 and PW5 are the next witnesses in sequence, who

have been relied upon by the prosecution as direct witnesses of

the criminal conspiracy. Both the said witnesses are real estate

agents and were approached by A3 and A5 to look for a party for

the purchase of disputed land in Kanyakumari. In that regard,

PW4 visited the house of A5 where other accused persons were

also present, including A1, A2, A3, A6, A7, A8, A9 and PW12.

When PW4 enquired regarding the signage “This property

belongs to Dr. Subaiah”, he was censored by A5, who pointed

towards the three assailants and stated that they will “take away

the weed”. He further saw that all other accused persons approved

Criminal Appeal Nos. 2493-2502 of 2025 Page 50 of 96

of the same. PW4 deposed that PW5 was also present at the house

of A5, however, he admitted in cross-examination that the said

fact was not stated by him in his statement to police. He further

deposed that he did not remember whether the other accused

persons present at the house of A5 had approved of the remark

made by A5.

53. PW4 explained the location of the house of A5 and its

distance from the disputed land. He also explained that he had

visited the house of A5 to get the patta and encumbrance

certificate for the disputed land. He further deposed that he knew

A5 since 2007 and no contrary suggestion was given by the

accused persons, thereby meaning that PW4 indeed knew A5 for

a considerable period of time and may have been approached by

the latter for the sale of the disputed land. He also deposed that

he had seen A6 prior to his visit.

54. He gave his statement to the police only on 10.03.2014,

which was after a considerable delay. However, we need to see

whether the delay is properly explained. He admittedly got to

know about the murder of Dr. Subbaiah in September, 2013

through news channels, however, he did not disclose it to anyone.

On 10.03.2014, he happened to visit Kanimadam to meet one

Subramani Nadar, his acquaintance from Anju Village, and

police was there to enquire about Yesurajan/A6 and

Criminal Appeal Nos. 2493-2502 of 2025 Page 51 of 96

Williams/A5. Admittedly, Kanimadam is also the native place of

A5. It was during this encounter that he disclosed his knowledge

to the police for the first time. Notably, no counter suggestion has

been given to question this visit by PW4.

55. The accused persons have given a series of suggestions to

impeach the credibility of PW4, such as the pendency of a

criminal case against him. However, no direct or indirect

advantage to PW4 could be shown to flow from the act of

deposing in the present matter. Therefore, no adverse inference

could be drawn on that basis alone. There is one ambiguity in the

testimony of PW4 i.e. whether he had disclosed the presence of

PW5/Bensom at the house of A5 in his initial statement to the

police. He was confronted and it was admitted that he had not

disclosed it. However, it is not an infirmity which strikes at the

root of the evidence of PW4 as there is ample corroboration of

this aspect from the testimony of PW5. Furthermore, it cannot be

termed as a material omission and an information of such

peripheral nature could have skipped the mind of the witness

while giving his statement to the police after a considerable

delay. At times, minor infirmities are indicators of a natural

testimony and perfection is an indicator of tutoring.

56. We may now come to PW5. He deposed that he knew A3,

A5, A7 and the family members of A1 through A7. He also knew

Criminal Appeal Nos. 2493-2502 of 2025 Page 52 of 96

about the dispute between the family members of A1 and

deceased. He was also approached to look for a prospective buyer

for the disputed land and was a part of the second conspiracy

meeting held in the last week of July, 2013 at the residence of

A5. He confirmed the presence of PW4 in the said meeting and

deposed that he was taken to the disputed land by A5 along with

A3 and A6. He further corroborated that in the said meeting, A1,

A2, A7, A8, A9 and A10 were also present. PW5 identified all

the accused persons present in the Court except A4, which is

consistent with his testimony that A4 was not present in the said

meeting. He further deposed that on being asked regarding the

disputed character of the land, A5 assured him that Subbaiah will

be no more. He also heard A3 speaking on a call to A4 and

assuring him that he need not fear as doctor will be no more in a

few days. PW5 later got to know about the murder of Dr.

Subbaiah, but he took no further interest in the matter until

12.12.2014, when he visited Kanimadam and discovered that A5

had been arrested in connection with the murder of Dr. Subbaiah.

57. PW5 was subjected to cross-examination on similar lines

as PW4 and we find no substance in the same to impeach the

evidence of PW5 for similar reasons, as noted above. The only

crucial circumstance that needs to be addressed is that there was

a considerable delay between the date of knowledge of offence

by PW5 and date of disclosure made by him to the police. He has

Criminal Appeal Nos. 2493-2502 of 2025 Page 53 of 96

accepted that he discovered the offence in September, 2013

through news channels, however, he never disclosed to anyone

until 12.12.2014 when he visited Kanimadam. This explanation

might have failed to pass the test of judicial satisfaction had PW5

been the only primary witness of the prosecution. However, the

testimony of PW5 is duly corroborated by the testimony of PW4

as well as by PW3 insofar as he disclosed the names of the

conspirators, as heard by him during the internal discussion of

the assailants on the date of murder. In view of this material

corroboration, we are not prepared to discard the testimony of

PW5 by placing undue reliance on delay. Moreover, apart from

general and vague suggestions during cross-examination, the

accused persons have not shown any circumstance to indicate

any motive or tutoring of PW5.

58. The next direct witness is PW12 – the approver. He gave

a detailed testimony regarding the timeline of conspiracy, nature

of conspiracy, participants in the conspiracy, flow of money and

the final act of commission of murder. PW12 not only disclosed

the details which were accessible to the investigating agency but

also provided exclusive details such as the place of stay of the

assailants during their visit to Chennai, both during the first

attempt and the second time when the act was completed. The

presence and involvement of PW12, both in the conspiracy

meetings and at the place of occurrence, has been independently

corroborated by the other direct witnesses such as PW2, PW3,

PW4 and PW5. The first conspiracy meeting was not only

witnessed by PW12, but also by PW53, who is again an

independent public witness. PW53 deposed regarding the first

meeting which took place in July, 2013, which was attended by

A5, A3, A7, A8 and A9. In the said meeting, various remarks

were made by the participants regarding the need to do away with

Dr. Subbaiah. Importantly, in the said meeting, A5 had asked A3

to get the photograph of the deceased and the meeting was also

joined by A1 and A2 at the instance of A3. He also deposed

regarding the involvement of A4, specifically his visit at the

house of the deceased which led to the decision of not killing the

deceased in his house. Despite specific evidence to the effect that

A4 had specifically come to Chennai from Bangalore and had

taken leaves from his company, no counter version was presented

by A4. Notably, the burden shifted on A4 once acceptable

evidence was led against him, and he ought to have discharged

it. He could have easily disproved the said evidence by

examining witnesses from the company, but he failed to do it.

The testimony of PW53 cannot be read in isolation and must be

read with the surrounding evidence on record. On a

comprehensive perusal of the same, it is clear that isolated and

independent prosecution witnesses have deposed on similar lines

and their testimonies form part of a consistent and uninterrupted

chain.

59. Pertinently, the manner in which the evidence of the

approver/PW12 has been appreciated by the High Court requires

specific deliberation. While evaluating his evidence, the High

Court firstly dealt with the allegation of bias on the part of the

Sessions Judge who granted pardon to the approver. In doing so,

the High Court suo moto took an additional document Ex. C6 on

record, which was a letter sent by the concerned Sessions Judge

to the High Court on the administrative side, seeking transfer of

the present case. The letter was addressed by the Sessions Judge

on her own, after she discovered a potential conflict of interest,

without being flagged by either side. In view of the said letter,

the matter was eventually transferred to a different Judge and

admittedly, trial was concluded by a different Judge. The

evidence of the approver/PW12 was also recorded before a

different Judge. In an unusual exercise of power at the appellate

stage, the High Court took the letter addressed on the

administrative side on record as a fresh document, and placed

reliance upon the same to arrive at a finding of reasonable

apprehension of bias, without providing an opportunity to the

prosecution to cross question the said document or to the

concerned Judge to make a representation against the

unwarranted evaluation of her conduct in the present case despite the fact that she did not pass the final judgment of conviction. No doubt, the power of the Appellate Court to record additional evidence is undisputed, however, the manner of exercise of such power must be aligned with the procedure in place. The said letter was taken on record at the instance of the accused persons, and

that too in the final judgment. Moreover, the Court did so without

even questioning as to why the accused persons never raised any

objection regarding the grant of pardon or bias at any point of

time during the trial.

60. Even if we brush aside the manner of taking the letter on

record and go into its contents, we are of the view that the letter

itself suggests no apprehension of bias. The High Court failed to

appreciate that the very fact that the concerned Judge voluntarily

disclosed the potential conflict at the first available opportunity,

without being asked by any party, and the same was accepted by

the High Court on the administrative side, reflected fairness on

the part of the concerned Judge. The matter was eventually

transferred to another Judge who conducted the trial. Notably, the

question of judicial bias is to be approached on the standard of

reasonable apprehension alone, and not on the proof of actual

bias. The High Court erred in imputing bias upon the concerned

Judge while failing to acknowledge that the disclosure was made

voluntarily by the concerned Judge, which was a positive act to

avoid any apprehension of bias. Even otherwise, apart from

granting pardon to PW12, the concerned Judge played no role in

the adjudication of the case. Even the evidence of PW12 was

recorded in the presence of the successor Judge. Nevertheless,

the High Court found that the biasness on the part of the Judge

may not have affected the outcome of the case, but it raised a

doubt on the credibility of PW12.

61. We fail to understand the reasoning adopted by the High

Court on this aspect. PW12 was granted pardon on the promise

of ‘true and full disclosure’ made by him and the Judge had no

role to play in the voluntariness, truthfulness and

comprehensiveness of the disclosure made by PW12. The grant

of pardon is a limited exercise and no doubt, the testimony of an

approver is always taken with a pinch of salt and is generally

accepted only on due corroboration. However, the High Court

erred in adding an extra layer of circumspection on the testimony

of the approver by raising doubts on the fairness of the Judge who

granted the pardon. Not only was the apprehension of bias ill

founded, but the ultimate decision of granting pardon was also

not unusual in any sense. The High Court appears to have fallen

for a narrative that ought not have featured in the appreciation of

evidence on record. Suffice to note that the testimony of PW12,

being a testimony of approver, must be approached with caution

and by following the rule of prudence which requires due

corroboration of such a testimony.

Criminal Appeal Nos. 2493-2502 of 2025 Page 58 of 96

62. In the present case, as noted above, the evidence of PW12

is not in isolation from the other evidence on record. The

disclosure made by PW12 is specific in nature and is wholly

consistent with the other direct and circumstantial evidence on

record. Furthermore, in the facts of the case, it is not the case that

the prosecution is standing on the evidence of the approver alone.

At best, the approver’s evidence has played the role of making

the chain of evidence more consistent and wholesome. The

prosecution has led ample independent evidence to prove the

charges in question.

63. The accused persons have taken certain common

exceptions to the testimonies of the direct witnesses i.e. manner

of discovery of the witnesses, lack of test identification parade,

unnatural testimonies, lack of corroboration, existence of

contradictions and omissions in their testimonies, etc. The High

Court has also disbelieved the testimonies of the material

witnesses on similar grounds. Having evaluated the evidence on

record, we are of the opinion that the High Court has fell in a

grave error in appreciating the evidence on record. The

testimonies of the direct witnesses of the prosecution are fairly

consistent with each other. No doubt, there are certain

contradictions and omissions in their testimonies, however, mere

presence of contradictions and omissions does not demolish the

credibility of public witnesses, as long as they appear to be

Criminal Appeal Nos. 2493-2502 of 2025 Page 59 of 96

natural and are duly explained. The High Court appears to have

proceeded on a presumption of falsehood and the findings in the

impugned judgment are not based on concrete doubts; rather, the

findings are based on suppositions and the Court’s own

subjective assessment of how a public witness is supposed to

depose before the Court.

64. When we say that every contradiction is not fatal, we

essentially mean that every contradiction carries different weight

and the weight is to be adjudged in light of the surrounding

evidence and the peculiar facts associated with a witness,

including the fact that a public witness is almost invariably out

of his comfort zone while deposing before a Court of law, that

too in a murder trial. In the present case, the accused persons have

stressed heavily on the contradictions and omissions appearing

in the testimony of PW12. Elaborate comparisons have been

drawn between the statement of PW12 under Section 161 Cr.P.C.

recorded during investigation (when he was an accused) and oral

deposition in the Court. No doubt, there are contradictions and

omissions between the two statements, however, the

contradictions and omissions do not surface without a

satisfactory explanation. At the time of recording the statement

under Section 161 Cr.P.C., PW12 was being questioned as an

accused/A10 and not as a witness. His natural disposition at that

time was to conceal as much as he could and to somehow

Criminal Appeal Nos. 2493-2502 of 2025 Page 60 of 96

exonerate himself. Moreover, the said statement was recorded by

the police and without administering any oath. However, after

grant of pardon, PW12 was examined as a witness on oath and it

was for the first time that PW12 made a true and full disclosure

of the incriminating facts, without the overarching fear of selfincrimination.

65. The contradictions between the two statements would have

made significant difference had the character of the person

making the statements remained the same throughout. However,

the statement was bound to change after the grant of pardon. In

fact, the whole object of grant of pardon is to elicit full disclosure

in the aid of prosecution. If a statement given by an approver

making true and full disclosure, after grant of pardon, is to be

rejected on the ground that it contradicted with the earlier

statement recorded by the police when the approver was an

accused, it would effectively frustrate the very object of pardon

in the course of a criminal trial. The phrase ‘true and full

disclosure’ contains within its sweep an inherent

acknowledgement that the accused had not disclosed truthfully

and fully prior thereto. Therefore, the High Court adopted an

infirm approach in the appreciation of evidence of the approver.

66. Having said so, we must briefly address an issue agitated

by both sides i.e. whether the statement of the accused recorded

Criminal Appeal Nos. 2493-2502 of 2025 Page 61 of 96

during investigation could be treated as a statement Section 161

Cr.P.C. and consequently, could be used for the purpose of

contradiction under Section 162 Cr.P.C. The short answer to this

question is yes. The long answer, without entering into any

elaborate discussion, is that the issue is no more res integra. It is

clear that a non-confessional statement of an accused recorded

by the investigating officer during investigation qualifies as a

statement under Section 161 Cr.P.C. and if the accused steps into

the witness box at a later stage, it could be put to the accused for

the purpose of contradiction. The accused, while being examined

under Section 161 Cr.P.C., is a person acquainted with the facts

and circumstances of the case. However, two things stand out.

Firstly, the weight to be attached to such contradictions needs to

be analyzed on a case to case basis, and secondly, a confessional

statement shall be hit by Section 25 of Evidence Act and cannot

be used for any purpose except for the purpose specified in

Section 27 of Evidence Act.

67. Coming back, we are of the considered opinion that the

approach adopted by the High Court in appreciating the

contradictions in the approver’s testimony, was erroneous. The

contradictions appearing in his testimony are reasonably selfexplanatory

and do not carry much weight, once seen in light of

the circumstances of the case, change of character of the witness

Criminal Appeal Nos. 2493-2502 of 2025 Page 62 of 96

from an accused to an approver and independent corroboration

by the surrounding evidence.

68. It is necessary, at this stage, to note that the present case is

not one wherein the conviction is solely based on the testimony

of the approver. The approver’s testimony has been substantially

corroborated by independent evidence of the public witnesses

and has been found to be consistent with the entire chain.

69. As regards the failure of the investigating agency to

conduct test identification parade of certain witnesses, we may

suffice to note that the conduct of a test identification is a

discretionary act of the investigating agency and it is only meant

to lend credence to the actual identification which takes place

before the Court during evidence. Moreover, some PWs such as

PW4 and PW5 admittedly knew the accused persons prior to the

offence and therefore, no purpose would have been served by

conducting test identification parades for such witnesses. The

real test of identification is whether the witnesses have duly

identified the accused persons in the Court. The evidence

recorded by the Trial Court reflects that at the time of

identification of the accused persons by the PWs, no objections

were raised and even during cross-examination, no credible

circumstance has been highlighted to raise a question on the

sanctity of identification made before the Court. In such

Criminal Appeal Nos. 2493-2502 of 2025 Page 63 of 96

circumstances, to raise a question on the identification done by

the witnesses on the sole ground of non-conduct of TIP, would

be nothing but a speculative exercise. It is not the domain of the

Court to raise procedural doubts in this manner, especially when

such doubts were not raised by the accused persons themselves

at the time of recording of evidence.

70. We are afraid, various other issues have also been dealt in

a similar pre-conceived manner in the impugned judgment. The

PWs were extensively cross-examined on behalf of the accused

and they not only remained fairly consistent but also remained

committed to their testimonies. In other words, the accused

persons could not move past the adverse suggestions given to the

witnesses of the prosecution and all such adverse suggestions

were unequivocally denied. Furthermore, the accused persons

did not lead any independent or counter evidence to impeach the

witnesses. However, despite such denials and absence of counter

evidence, the High Court went on to treat the ‘suggestions’ given

by the accused persons as ‘doubts’. We are not prepared to accept

it as the correct approach for appreciation of evidence and are

constrained to observe that the High Court has committed a grave

error in adopting the said approach.

71. Having examined the direct evidence led on behalf of the

prosecution, we may now come to indirect or circumstantial

Criminal Appeal Nos. 2493-2502 of 2025 Page 64 of 96

evidence on record, which overwhelmingly supplements the

direct evidence.

72. Prior to the commission of the fatal act, a previous attempt

was made by the assailants on 14.08.2013. The said fact was

disclosed by PW12 and to give effect to the plan, A8, A9 and

PW12 had arrived in Chennai on 11.08.2013 and had stayed in

Bakkiyam Lodge. The stay in Bakkiyam Lodge has been proved

by PW24, who produced documentary evidence including bill

book/M.O.11, arrival register/M.O.12 and departure

register/M.O.13 to show the arrival of the assailants. The seizure

of the objects was witnessed by independent witness PW23. A

prior connection and involvement of A3, A5 and A7 in the first

attempt is further corroborated by PW8 who witnessed A7 along

with A8, A9 and PW12/A10 in R.A. Puram on 14.08.2013.

Notably, earlier, PW8 was also asked by the accused persons to

look for a suitable buyer for the disputed land. PW8 is an

independent witness who knew A3 since 2007. His wife is a

District Munsif and he himself joined St. Peter College as an

Assistant Professor. Despite various suggestions, we find no

plausible circumstance to impute any motive to this witness or to

question his credibility. The social standing of the witness

reflects that there could be no possible reason for him to depose

falsely.

Criminal Appeal Nos. 2493-2502 of 2025 Page 65 of 96

73. As regards money trail, the transfer of money between

various key participants of the conspiracy is admitted, as noted

by the High Court as well. However, the purpose of such transfer

is questioned. Initially, the money travelled from A1 and A3 to

A5. Thereafter, A5 transferred it to DW2, who withdrew the

same and handed over the cash to A6. Further, A6 distributed the

money to the assailants A8, A9 and PW12 after retaining his cut.

Notably, the receipt of money from A6 is confirmed by PW12.

The transfers made by A5 to DW2 and subsequent withdrawals

within 1-2 days of each transfer are substantiated by the bank

statements on record. PW37 is another witness regarding the

money trail who had witnessed the handing over of money by

DW2 to A6 at the former’s house. The accused persons have

presented a convoluted version of the transfer of this amount.

While cross-examining PW37, a suggestion was given to PW37

to the effect that he did not know Veeramani/DW2 and never

visited her house. However, in the statement under Section 313

Cr.P.C., a justification was advanced that the amount transferred

to Veeramani/DW2 was meant for investment in C&G Textiles

Company. If such was the case, then the handing over of the said

amount by Veeramani/DW2 to A6 stands admitted, and it

strengthens the testimony of PW37 who had witnessed it.

Another question raised on behalf of the accused persons is that

if the amount was transferred to A6 and further to the assailants

Criminal Appeal Nos. 2493-2502 of 2025 Page 66 of 96

through DW2, then DW2 ought to have been made an accused or

a witness in the case. We find that the question is incapable of

advancing the case of the accused persons as its answer lies in

the testimony of PW37. The said witness has deposed that while

handing over the money to A6, DW2 had asked him as to why

A5 was paying so much money to A6. This statement indicates

that DW2 was not aware of the purpose of the transfer being

made through him and therefore, there was no error on the part

of the prosecution in not making him an accused in the present

case. Furthermore, it is the admitted position that DW2 is the

brother in law of A6 and therefore, the prosecution could have

legitimately opted to not examine a family member of the

accused persons as a witness for the prosecution. We find nothing

unusual in it.

74. On a careful examination of the money trail, it could be

observed that the money trail appears to be well aligned with the

timeline of conspiracy and despite two incriminating testimonies

regarding the purpose of the money trail, the accused persons

have only managed to present conflicting versions. The

circumstantial evidence constituted by the money trail is

consistent with the direct evidence on record. Importantly, we

may also note that despite convoluted statements regarding the

money being meant for investments, the accused persons have

not led any evidence to that effect. If the money was indeed

Criminal Appeal Nos. 2493-2502 of 2025 Page 67 of 96

transferred for making investments, assuming that the accused

persons could actually invest direct cash in the company, it would

not have been an onerous task for the accused persons to prove

the said investments in their defence, so as to dispel the theory of

the prosecution. Unfortunately, no such evidence was led on this

aspect.

75. The chain of circumstances is further fortified by the

evidence of travel made by the accused persons, purchase of

second hand motorcycle, place of stay in Chennai from

13.09.2013 to 14.09.2013, inquiries made from the secretary of

the deceased (PW34) and manager of Billroth Hospital (PW11),

purchase of knife from PW31 by A8, discovery of the knife on

the basis of admissible disclosure of fact made by the accused

persons under Section 27 of Evidence Act and identification of

knife by PW31 in the Court. Interestingly, the testimony of PW31

has been effectively admitted by A7 to A9, as evident from the

cross-examination conducted by them. In cross-examination, the

accused persons suggested to PW31 that the knife was taken by

the accused persons for cutting tender coconut and PW31

answered in affirmative. This suggestion effectively amounts to

an admission that the knife was indeed taken by the accused

persons from PW31 and therefore, the accused persons have

themselves added credibility to the evidence of PW31. The

purchase of knife M.O.1 by the accused persons from PW31,

Criminal Appeal Nos. 2493-2502 of 2025 Page 68 of 96

subsequent discovery of knife at the instance of the accused

persons and identification of the said knife by PW31 in the Court

are heavily incriminating circumstances, which not only indicate

towards the solitary conclusion of guilt but also lend credence to

the testimony of direct witnesses, especially the approver/PW12.

76. Notably, the post mortem report confirmed that the injuries

could have been inflicted with M.O.1, which is sufficient to

connect the weapon of offence with the injuries which caused the

death of the deceased. Unfortunately, in totality, the impugned

judgment has not appreciated the recoveries made from the

accused persons in correct perspective. The recovery of

objects/documents (few documents have been inadvertently

marked as objects in evidence) such as visiting card, knife, bag,

blood-stained shirt etc., exclusively at the instance of the accused

persons and on the basis of the disclosures made by them, ought

to have been considered while appreciating the overall effect of

the evidence. It would have been a different scenario if the

objects and their whereabouts were in common knowledge and

discoveries would not have been effected on the basis of

exclusive disclosures. However, the High Court appreciated the

material objects in isolation and erred in not attaching due weight

to their discoveries. For instance, mere discovery of a visiting

card, if seen in isolation, is certainly not of much consequence.

However, if the discovery forms part of a series of incriminating

Criminal Appeal Nos. 2493-2502 of 2025 Page 69 of 96

events and conspiracy meetings, it could not be brushed aside as

immaterial.

77. Pertinently, these crucial circumstantial aspects constitute

a series of prior and subsequent events/conduct which are

consistently aligned with the chain of circumstances.

Understandably, previous and subsequent events/conduct are

relevant facts as per the law of evidence and therefore, they are

material for forging the case of the prosecution. One of the

fundamental rules of appreciation of evidence is that evidence is

to be appreciated as a whole and in a comprehensive manner. If

pieces from a chain of evidence are picked in isolation, their

meaning and inferences flowing therefrom are bound to be

different. At times, even a seemingly weak link falling in the

chain of evidence acts a bridge in completing the chain.

78. Having observed so, we may now come to the electronic

and corresponding expert evidence on record. There is a

significant controversy with respect to the said material. The

electronic evidence has been relied upon to corroborate the oral

and documentary evidence discussed above. The prosecution has

relied upon call detail records of the accused persons to prove the

conspiracy and CCTV footage/Gait Analysis to prove the

identities of the assailants – A8 and A9.

79. As regards call detail records (CDRs), the primary

objection is that the CDRs Ex. P112 to Ex. P145 have been

exhibited by PW45, who was working as a Sub-Inspector in

Cyber Police Unit. He received the CDRs from the telecom

companies and they were exhibited to show that the assailants

and other accused persons were in contact with each other. PW45

exhibited the CDRs along with a certificate under Section 65-B

of Evidence Act. The High Court rejected the CDRs on the

ground that the exhibition of CDRs by PW45 would be of no

consequence as the concerned officers of the telecom companies

were not examined to prove the call details.

80. On an examination of the CDRs and the mode of proof

adopted by the prosecution to prove the same, we find ourselves

in agreement with the view taken by the High Court to reject this

piece of evidence. Admittedly, the CDRs were generated from

the data maintained by the telecom service providers and were

sent to PW45 by email. PW45 took printouts of the same and

produced in evidence by exhibiting his own certificate under

Section 65-B of Evidence Act. Notably, the prosecution did not

examine the concerned nodal officers of the telecom companies

as witnesses to prove the CDRs generated by the companies and

that too, without explanation. Further, PW45 did not even place

on record the relevant emails whereby the CDRs were sent by the

companies to him. We are of the view that the prosecution has

fallen short of proving the CDRs in this case. PW45, at best,

could have only proved the receipt of CDRs by him on his

computer system and could have filed a certificate to that effect.

However, the CDRs were not generated by PW45 and he was not

competent to prove the contents of the same. Although, PW45

could have legitimately taken print outs of the CDRs from his

system and could have filed a certificate to that effect, however,

the prosecution ought to have simultaneously examined the nodal

officers as well, so as to prove that the CDRs filed by PW45 were

indeed generated and sent by the telecom companies. As noted

above, the emails though which the CDRs were mailed to PW45

were also not proved by the prosecution. Moreover, the CDRs

were filed in an editable format.

81. Therefore, the CDRs ought to have been proved along with

a certificate under Section 65-B certificate of the competent

person/nodal officer who was in control of the system which

generated the CDRs. Furthermore, the failure to examine the

nodal officers raises credible questions regarding the chain of

custody of the electronic record. The said examination was

essential to prove that the chain of custody was unbroken and

remained coherent from the telecom companies to the

investigating agency and further, to the Court.

82. Having said so, we are of the view that the failure of the

prosecution to prove the CDRs shall not affect the outcome of the

matter. The CDRs have been relied upon for corroborative

purposes only, in order to prove the connection between the

accused persons. Since, there is ample direct evidence to prove

the conspiracy and inter-se connection between the accused

persons, mere failure to prove an additional piece of evidence to

prove the same fact shall not have any adverse impact on the

outcome. After all, what is important is the quality, and not the

quantity of evidence.

83. As far as the evidence related to CCTV footage and gait

analysis report is concerned, there are two aspects which require

discussion – first, whether re-enactment of a crime scene by the

accused amounts to personally incriminating testimony barred by Article 20(3) of the Constitution and second, whether the CCTV footage and gait analysis report are admissible in evidence and can be relied upon.

84. On the first aspect, the High Court has given a conclusive

finding that compelling an accused to re-enact or demonstrate a

scene of occurrence amounts to compelling him to reveal

personal knowledge and to be a witness against himself within

the meaning of Article 20(3). Further, re-enactment of a scene of

crime would amount to giving a confession to the police in police

custody, which is inadmissible in evidence. The relevant portion

of the impugned judgment is reproduced thus:

“But in our view, obtaining voice sample is

different from asking the accused to reenact the

occurrence; Asking the accused to reenact the

occurrence would amount to personal

testimony. By reenacting the occurrence, the

accused conveys information based on his

personal knowledge and thereby becomes a

witness against himself. It is not merely an

identification data. For instance, if the accused

is simply asked to walk, which would enable

comparison of his gait appearance, he does not

convey any information based on personal

knowledge and it would be in the realm of

‘identification data’. However, reenacting the

occurrence certainly leads to revelation of facts

within personal knowledge. Therefore, we are

of the view that asking the accused to reenact

the occurrence would amount to becoming a

witness against himself, thereby offending

Article 20(3) of the Constitution of India. That

apart, the reenacting of the occurrence would

amount to giving a confession to the police or a

confession while in police custody. Therefore,

it has no evidentiary value and it cannot be used

for comparison with the video containing the

recording of the actual occurrence, if any.”

85. The exposure of an accused and the permissible limits of

such exposure during investigation have been the subjects of

constant evolution in the criminal jurisprudence. On a

jurisprudential scale, we begin with Article 20(3) of the

Constitution, which declares that no accused could be compelled

to be a “witness against himself”. Effectively, it indicates that an

accused cannot be compelled to incriminate himself. The

statutory manifestation of this concept is found in Sections 25

and 26 of Evidence Act11, which render a confession made by an

accused in police custody as inadmissible. A confession made in

police custody is deemed to be involuntary or under compulsion

and therefore, it is per se inadmissible. From time to time, we

come across various investigative techniques which present

renewed challenges and raise questions pertaining to the

violation of these principles. Illustratively speaking, questions

such as – whether compelling an accused to provide finger prints

would amount to compelling him to be a witness against himself;

or whether compelling an accused to give his voice sample would

amount to him being a witness against himself; or whether

compelling an accused to provide his mobile password would

amount to compulsion to be a witness against himself etc., have

arisen in the past and have been judicially settled. Such issues

11 Now Sections 23(1) and 23(2) of Bharatiya Sakshya Adhiniyam, 2023(“BSA”) emerge primarily because the larger public interest in adopting technically advanced investigations often comes in a conflict with the constitutional and statutory rights of the accused which ensure fairness and lie at the heart of our criminal justice system.Therefore, such issues demand appropriate balance.

86. Invariably, the core test that has been applied in resolving

these issues is whether the act in question merely requires an

accused to act in a certain manner or to perform an act, without

giving any personal testimony, or in alternative, whether it

compels him to disclose incriminating information from his

personal knowledge. If it is the former, the act is constitutionally

valid as it merely amounts to assistance in the course of

investigation and the act, in itself, does not amount to any

personal testimony. However, if it is the latter, the act becomes

constitutionally impermissible as it effectively compels an

accused to be a “witness against himself”.

87. In the present case, the police conducted an exercise of re-enactment or demonstration of the crime scene by involving the

accused persons. A crime scene re-enactment is a technique

which is gaining prominence in the investigation of heinous

offences. On its own, a re-enactment exercise does not constitute

any direct form of evidence of the offence, as it is essentially in

the nature of recreated evidence. However, it serves the limited

purpose of explaining the physical attributes of the occurrence,

such as place of occurrence, lighting conditions at the relevant

point of time etc., as well as to visualize the manner of

commission of the offence. It may not directly assist the Court in

reaching any conclusion, but may help in the appreciation of the

surrounding evidence on record, especially the visual evidence

of the events.

88. The re-enactment or demonstration of an occurrence by an

accused is often based on eye-witness accounts of the offence or

on the basis of CCTV footage extracted from nearby cameras

installed in public spaces. Nevertheless, it cannot be held as a

general proposition that every re-enactment or demonstration of

a crime scene per se amounts to personal testimony of the

accused. If the re-enactment is merely based on a direction to

walk or to act a certain way or to imitate a visual sequence, it

does not necessarily involve any physical manifestation or

disclosure of the personal knowledge of the accused. In that

sense, it does not amount to any personal testimony. However, if

the accused is somehow led into demonstrating the incriminating

acts committed by him from his own knowledge, the same would

amount to testimonial compulsion and would be squarely hit by

Section 25 and 26 of Evidence Act. Therefore, it would be

dangerous to lay down a general rule against the admissibility of

evidence based on re-enactment or demonstration of the

occurrence, as it would effectively kill a potent and scientific

investigative technique. The right approach is to tread a

proportionate path and see whether the re-enactment is merely a

directed demonstration to analyse physical attributes of the

suspects or a manifestation of the personal knowledge of the

accused. Although, we must be mindful of the fact that

inherently, by its very nature, an exercise of re-enactment of

occurrence is carried out as per the directions given by the

investigating officer and the re-enacted version does not amount

to a personal version of the accused. Rather, it remains an

enactment or demonstration of the version of the investigating

officer. Per se, a re-enactment of an occurrence is merely

‘created’ document/evidence and on its own, it hardly proves

anything. On the basis of such re-enactment, expert analysis such

as gait analysis is carried out, which gives rise to a distinct piece

of evidence, with distinct implications. Such expert evidence is

not based on the personal testimony of the accused and is merely

an analysis of the physical attributes of the accused, which could

be used for the purpose of identification during trial. Thus, the

thin line between ‘re-enactment’ and ‘evidence based on re-enactment’ needs to be acknowledged.

89. Importantly, it needs to be noted that evidence based on a

re-enactment or demonstration is not a substantive piece of

evidence of the actual commission of the offence. It is merely

corroborative evidence which may be useful to corroborate the

identities and physical attributes of the suspects, sequence of the

alleged occurrence, physical attributes of the place of occurrence

etc. On its own, re-enacted evidence cannot be made the basis to

arrive at a finding of conviction.

90. In view of the above discussion, we are of the view that

the High Court has committed an error in holding that reenactment

by the accused persons amounted to their personal

testimonies within Article 20(3) of the Constitution. In fact, the

accused persons have themselves questioned the gait analysis

report on the ground that re-enactment carried out by them was

artificial and was made to align with the movements shown in

the CCTV footage and therefore, similarities were bound to

emerge. It shows that the re-enactment by the accused persons

was not based on their personal knowledge and it was artificially

staged to draw some inferences regarding physical attributes of

the accused persons. Such inferences regarding physical

attributes are invariably drawn using other attributes such as

voice sample, finger prints, thumb impressions, etc.

91. We may now come to the second aspect regarding

electronic evidence in the present case i.e. whether the CCTV

footage and gait analysis report are admissible in evidence and

can be relied upon. Gait analysis is a scientific technique which

Criminal Appeal Nos. 2493-2502 of 2025 Page 79 of 96

is used to analyze the walk of a person and at times, also to

examine the other physical attributes of human body such as

motion, appearance etc. For decades now, evidence of gait

analysis on the basis of acquaintance has been invariably used in

criminal trials. In such evidence, a witness well acquainted with

the accused steps in to identify the accused on the basis of his

knowledge of the gait of the accused. Of late, gait analysis is

being carried out by experts on the basis of visual/electronic

evidence, such as CCTV footage. In this examination, the bodily

movement of the suspect is captured in a re-enactment or

demonstration video and the same is compared with the CCTV

footage or other video of the actual occurrence. The experts

generally step in to confirm ‘similarities’ between the persons

seen in the two pieces of evidence, although it cannot be said

with certainty that the two persons are exactly the same. It is for

this reason that gait analysis reports serve as corroborative pieces

of evidence, to fill in the gaps in the mind of the Judge by

corroborating the remaining evidence of identity or eye witness

accounts, and to resolve the last-minute doubts in the mind of the

Judge before arriving at a final conclusion.

92. However, the gait analysis report must be based on a

comparison of two admissible and reliable pieces of evidence. In

other words, the re-enactment video and CCTV footage of actual

occurrence must be proved first in a reliable sense. A comparison

Criminal Appeal Nos. 2493-2502 of 2025 Page 80 of 96

of two unreliable pieces of evidence cannot produce a reliable

piece of evidence. We say so because in the present case, the gait

analysis has been carried out on the basis of the re-enactment

video and CCTV footage obtained from Shrestha Subhashree

Apartment. However, we find ourselves unable to place reliance

on the CCTV footage because of serious apprehensions

regarding mishandling and inconsistent chain of custody. The

CCTV footage was extracted from the camera installed at

Shrestha Subhashree Apartment and as per PW57, it was copied

in a pen drive by one police official, namely PC Parthiban, on the

date of occurrence itself i.e. 14.09.2013. He kept the pen drive

with himself and was never examined as a witness by the

prosecution. The investigating officer failed to act on the CCTV

footage for over a month, and on 09.10.2013, PW55 recovered

the hard disk (M.O.9) as per memo Ex. P28. The said hard disk

was forwarded to FSL and was returned as unexamined for want

of DVR. On 26.10.2023, PW56 (new I.O.) learnt that DVR was

already scrapped and a new DVR system had been installed

there. Thus, what the investigating agency was left with was a

hard disk purportedly containing the CCTV footage of the

camera installed at Shrestha Subhashree Apartment, without any

DVR to confirm that the hard disk was indeed extracted from the

video recorder of the same camera.

Criminal Appeal Nos. 2493-2502 of 2025 Page 81 of 96

93. The investigating agency tried to move on from this

roadblock and sent the hard disk/M.O.9 to a private agency,

namely Truth Labs. Importantly, this referral was not made for

analyzing the CCTV footage or for confirming the genuineness

of the footage. Rather, it was sent for conducting gait analysis of

the persons seen in the footage. PW54 extracted the footage from

the hard disk and took a copy in a USB drive. She produced the

said copy in the Court along with her report of gait analysis.

When the accused persons insisted for the production of cloned

copies from the hard disk, it was informed that the hard disk had

become corrupt. Although, copies made from the existing copy

in the USB drive were produced in the Court. A careful

examination of these circumstances would suggest that the

investigating officers have completely mishandled the electronic

evidence and have failed to maintain the chain of custody. The

camera was left unattended for over a month, hard disk was

extracted after an unexplained delay, DVR was destroyed due to

inaction on the part of the investigating agency and hard disk was

found to be corrupt when specific directions were given to

prepare clone copies from the hard disk. In such circumstances,

the overwhelming possibility that the gait analysis report has

been prepared on the basis of the copy of the CCTV footage and

not the original footage, cannot be denied. The possibility that

the copy obtained by PC Parthiban was used to conduct scientific

Criminal Appeal Nos. 2493-2502 of 2025 Page 82 of 96

examination, cannot be denied either, as the hard disk was

corrupted. A reasonable doubt, therefore, emerges in view of the

distorted chain of custody and destruction/corruption of the

original hard disk and DVR. In such circumstances, merely

because the copied footage was played in the Trial Court, it

cannot be held that the footage was proved in accordance with

the law. Therefore, we find it dangerous to place reliance on the

CCTV footage or the gait analysis report prepared on that basis.

The High Court has rightly rejected this piece of evidence.

94. However, as noted in case of CDRs, rejection of gait

analysis report shall not affect the outcome of the case. For, the

report has been relied upon for purely corroborative purposes to

prove the identities of A8 and A9, and in view of ample direct

and circumstantial evidence on record, both oral and

documentary, we feel no need for corroboration on the basis of

gait analysis. The identities of the accused persons have been

established to the satisfaction of the Court by credible eye

witness accounts, as discussed above.

95. We shall now move from the evidentiary analysis to the

motive for the commission of the offence. The prosecution has

led extensive oral and documentary evidence to prove that there

was a prolonged land dispute between the parties; that various

complaints regarding trespass were filed by the deceased or his

Criminal Appeal Nos. 2493-2502 of 2025 Page 83 of 96

family members against the accused persons; that an FIR was

also registered by the Land Grabbing Cell of the State Police, and

that the fencing was disturbed after the registration of FIR, for

which another FIR was lodged. The evidence of motive aligns

with the eye witness accounts of the conspiracy meetings

wherein similar discussions took place. There is ample evidence

on record to show the motive of the accused persons and it is trite

law that motive assumes significance in a case based on

substantive evidence. Conversely, a complete absence of motive

may have played as a factor in favour of the accused persons,

however, such is not the case here. The position of law in this

regard was succinctly discussed by this Court in a recent

pronouncement in Vaibhav v. State of Maharashtra12. The

relevant extract thereof reads as:

“23. We may now come to the next aspect of

the case i.e. absence of motive and consequence

thereof. It is trite law that in a case based on

circumstantial evidence, motive is relevant.

However, it is not conclusive of the matter.

There is no rule of law that the absence of

motive would ipso facto dismember the chain

of evidence and would lead to automatic

acquittal of the accused. It is so because the

weight of other evidence needs to be seen and

if the remaining evidence is sufficient to prove

12 2025 INSC 800

Criminal Appeal Nos. 2493-2502 of 2025 Page 84 of 96

guilt, motive may not hold relevance. But a

complete absence of motive is certainly a

circumstance which may weigh in favour of the

accused. During appreciation of evidence

wherein favourable and unfavourable

circumstances are sifted and weighed against

each other, this circumstance ought to be

incorporated as one leaning in favour of the

accused.”

96. Thus, the motive established by the prosecution further

fortifies the case of the prosecution and lends credence to the

finding of guilt of the accused persons on the basis of other

evidence on record.

97. In addition to the aforementioned infirmities in the

impugned judgment, we feel constrained to note that the High

Court has appreciated the entire evidence on an artificial

standard. We are afraid, the High Court has introduced numerous

fictional probabilities in the sequence of events, without being

supported by the record and cross-examination of the concerned

witnesses. Various aspects such as, the manner in which a public

person should behave; the manner in which the conspirators

should behave while discussing the conspiracy, the impossibility

of a conspiracy being discussed in front of third persons; the

potential of eye witnesses to actually decipher the conversations

between the accused persons; the exchange of money in the

Criminal Appeal Nos. 2493-2502 of 2025 Page 85 of 96

presence of stranger eyes; low economic profiles of certain

witnesses etc., have been assessed in a completely subjective

manner, detached from the objective explanations furnished by

the prosecution on all such aspects. No doubt, such aspects are

relevant in examining the evidence in a criminal case, however,

the Court cannot detach itself from the explanations on record

and cannot dismiss them in a subjective manner. On conspiracy,

for instance, the High Court has proceeded to lay down general

statements of law to the effect that a conspiracy is always hatched

in secrecy and cannot be heard by third persons. It went to the

extent of calling it an “insult to the criminal justice system” if it

is believed that the conspiracy was discussed in the presence of

eye witnesses. We are a little taken back with the sweeping nature

of remarks made in the impugned judgment. Effectively, to say

so would mean that there could possibly never be any direct

evidence of conspiracy. We often find ourselves reiterating that

conspiracies are generally hatched in secrecy, however, it does

not mean that direct evidence of conspiracy is an impossibility,

or that such evidence would get rejected on this notion alone.

98. The phrase ‘beyond reasonable doubt’, which marks the

standard of proof for the prosecution in a criminal case, is a

potent phrase. It does not mean any and every doubt. Rather, it

means a doubt which is so strong and reasonable that it

effectively creates space for an alternate theory in the mind of the

Criminal Appeal Nos. 2493-2502 of 2025 Page 86 of 96

Judge. Unsurprisingly, ordinary doubts are bound to emerge in a

case of this nature where the transaction and witnesses are

scattered across a wide spectrum. The job of a criminal court is

not to order lose acquittals by entertaining such vague and

ordinary doubts, convoluted theories and suppositions. In the

present case, the accused persons have conveniently refrained

from leading counter evidence on various aspects, such as money

trail, leaves taken by A4, his visit to Chennai etc. They also failed

to advance plausible explanations qua the incriminating evidence

against them. One of the accused persons attempted to introduce

a new fact and went to the extent of calling the death of Dr.

Subbaiah as an ‘accident’, and led no evidence to prove it.

Probably, counter evidence on such aspects could have created

reasonable doubts in the mind of the Court. When a party is in a

position to raise doubts and refrains from doing so, what does it

mean? The only reasonable inference is of the falsity of the

theories propagated by the accused persons. In such cases, the

Court is not expected to import its own doubts, without being

supported by the manner in which the case has been defended by

the accused persons. The dangers associated with the lose

application of the principle of ‘beyond reasonable doubt’ have

been discussed on various occasions by this Court. We would not

like to prolong our judgment by reiterating once again, and

Criminal Appeal Nos. 2493-2502 of 2025 Page 87 of 96

suffice to note that a lose acquittal of a guilty person is as

dangerous as the conviction of an innocent.

99. We may now, with a renewed hope, discuss and reiterate a

statement of law which has been reiterated innumerous times by

this Court in the past. The job of an Appellate Court is not to

automatically enter into reappreciation of evidence by force of

habit. It is to examine whether the Trial Court has committed any

perversity or illegality in the appreciation of evidence or has

rendered completely erroneous findings. Until and unless the

findings of the Trial Court are held to be erroneous or perverse

or illegal or impossible, the Appellate Court is not expected to

convert the appeal into a re-trial. Naturally, there is nothing

unusual if the Appellate Court feels that it might have taken a

different view if the trial was conducted by it. However, that is

not enough to reverse the findings of the Trial Court. As long as

the view taken by the Trial Court is a legally possible view, mere

availability of an alternate view is not enough to reverse such

view of the Trial Court. What the High Court has done in the

present case is to replace the legally possible view of the Trial

Court with one of its own. The Trial Court had conducted a

comprehensive appreciation of the evidence on record and had

arrived at the finding of guilt of the accused persons. The High

Court reappreciated the entire evidence, without actually

demonstrating any acceptable perversity or illegality in the view

Criminal Appeal Nos. 2493-2502 of 2025 Page 88 of 96

of the Trial Court. The respondents have beseeched this Court to

observe the limitations applicable to Appellate Courts, without

realizing that this Court is bound to analyze whether those limits

were observed by the High Court in the first place.

100. In view of the foregoing discussion, we are of the

considered opinion that the High Court has committed a grave

error in reversing the view of the Trial Court. Even without

regard to the breach of principles governing exercise of appellate

powers, the impugned judgment is unsustainable on account of

erroneous appreciation of evidence and for the reasons

mentioned above. We find that the findings of the Trial Court are

legally sustainable and stand restored. The judgment of the Trial

Court stands restored, and the conviction of the respondents is

upheld. Accordingly, A1/P. Ponnusamy, A2/Mary Pushpam and

A3/Basil P.M. are convicted for the commission of offences

punishable under Sections 302 read with 120-B and 120-B of

IPC; A4/Boris P.M. is convicted for the commission of offences

punishable under Sections 302 read with120-B and 120-B read

with 109 of IPC; A5/B. William, A6/Yesurajan and A7/Dr.

James Satish Kumar are convicted for the commission of

offences punishable under Sections 302 read with 120-B and

120-B of IPC; A8/Murugan and A9/Selva Prakash are convicted

for the commission of offences punishable under Sections 302,

Criminal Appeal Nos. 2493-2502 of 2025 Page 89 of 96

Section 302 read with 34/120-B, Section 341 and 120-B of IPC.

All the sentences shall run concurrently.

101. The State has already made a statement to the effect that

capital punishment is not pressed for in the present matter. Thus,

all the respondents/convicts are hereby sentenced to undergo

imprisonment for life along with fines imposed by the Trial

Court, for the offences mentioned above. The default sentences,

in case of default in payment of fine shall also remain the same.

102. We do not wish to conclude our judgment by merely

recording a conviction. Though the seriousness of the offence

cannot be understated, we believe that this Court has a slightly

larger role to play and thus, would like to make certain

observations. Parents love their children irrespective of their age

and continue to support them even when no one else does. In

their advanced years, they fail to question or resist their actions

out of affection and emotional dependence, believing it to be their

duty to protect and support them under all circumstances. It is in

this background that the role of A1 and A2 is required to be

appreciated.

103. The actions of A1 and A2, being the parents of A3 and A4,

appear to have stemmed from a deeply misplaced sense of

parental obligation and emotional attachment towards securing

the perceived welfare and future of their children as the parental

Criminal Appeal Nos. 2493-2502 of 2025 Page 90 of 96

instinct to protect and provide is one of the most powerful human

impulses which can, at times, cloud judgment and rational

thinking. In the present case, A1 and A2 played a very limited

role and acted largely in accordance with the directions of A3 and

A4. They joined the conspiracy at the instance of A3, and the

money from the account of A1 was utilized for the same. It must

also be borne in mind that A2 is a woman, and both A1 and A2

are in the advanced years of their lives. We would like to make

it clear that these observations are not intended to condone their

actions, but are made only for the limited purpose of appreciating

the human factors underlying their conduct.

104. At this juncture, we would like to refer to the observations

made by this Court in the context of reformation in Subha @

Shubhashankar vs. State of Karnataka and another 2025 SCC

Online SC 1426.

“13. The Constitution of India (hereinafter referred

to as the “Constitution”) which is the supreme law

of the land, encourages the reformation of

individuals, by granting them a new lease of life.

This is personified by Articles 72 and 161 of the

Constitution which empowers the constitutional

authorities to grant pardon to convicts. In light of

this, we would like to specifically elaborate on the

underlying principles pertaining to the powers

vested with the Governor under Article 161 of the

Constitution.

Criminal Appeal Nos. 2493-2502 of 2025 Page 91 of 96

Article 161 of the Constitution

“161. Power of Governor to grant pardons, etc.,

and to suspend, remit or commute sentences in

certain cases.—

The Governor of a State shall have the power

to grant pardons, reprieves, respites or remissions of

punishment or to suspend, remit or commute the

sentence of any person convicted of any offence

against any law relating to a matter to which the

executive power of the State extends.”

14. Article 161 of the Constitution has an inbuilt

laudable objective. This Article emphasizes

the role of the State to facilitate an offender to be

reintegrated into society, after realizing his mistake.

This power is sovereign, and is to be exercised on

the advice of the Council of Ministers. Thus, it

grants the Constitutional Court only a limited power

of judicial review.

15. Though the power conferred under

Article 161 of the Constitution might sound similar

to the statutory powers available under Sections 473

and 474 of the Bharatiya Nagarik Suraksha Sanhita,

2023 (hereinafter referred to as the “BNSS”),

corresponding to Sections 432 and 433 of the

Criminal Procedure Code, 1973 (hereinafter

referred to as the “Cr.P.C.’), its powers are much

wider. While statutory provisions govern classes of

convicts collectively, the prerogative of pardon is

generally exercised discretely in specific instances.

Therefore, the scope of this power is much broader

and is to be applied on a case-to-case basis. A

constitutional power is fundamentally different and

distinct from a statutory one. While statutory

Criminal Appeal Nos. 2493-2502 of 2025 Page 92 of 96

powers are derived from laws enacted by

legislatures and remain subject to amendment or

repeal, constitutional powers originate from the

Constitution itself. Therefore, the power to pardon,

reprieve, respite, remit etc. forms part of the

constitutional ethos, goal and culture. Unlike

statutory provisions, which are tailored to address

specific scenarios or population demographics,

constitutional powers embody the State’s

commitment to a broader ethical vision – one that

prioritizes humanity and equity, even in the

administration of punishment.

Maru Ram v. Union of India, (1981) 1 SCC 107

“72. We conclude by formulating our findings:

(1) We repulse all the thrusts on the vires of

Section 433-A. Maybe, penologically the prolonged

term prescribed by the section is supererogative. If

we had our druthers, we would have negatived the

need for a fourteen-year gestation for reformation.

But ours is to construe, not construct, to decode, not

to make a code.

(2) We affirm the current supremacy of

Section 433-A over the Remission Rules and shortsentencing

statutes made by the various States.

(3) We uphold all remissions and shortsentencing

passed under Articles 72 and 161 of the

Constitution but release will follow, in life sentence

cases, only on government making in order en

masse or individually, in that behalf.

(4) We hold that Section 432 and Section

433 are not a manifestation of Articles 72 and 161

Criminal Appeal Nos. 2493-2502 of 2025 Page 93 of 96

of the Constitution but a separate, though

similar power, and Section 433-A, by nullifying

wholly or partially these prior provisions does

not violate or detract from the full operation of

the constitutional power to pardon, commute

and the like.”

( emphasis supplied)

Shatrughan Chauhan v. Union of India, (2014) 3

SCC 1

“16. Articles 72/161 of the Constitution entail

remedy to all the convicts and are not limited to

only death sentence cases and must be

understood accordingly. It contains the power of

reprieve, remission, commutation and pardon

for all offences, though death sentence cases

invoke the strongest sentiment since it is the only

sentence that cannot be undone once it is

executed.

17. Shri Andhyarujina, learned Senior Counsel,

who assisted the Court as amicus commenced his

submissions by pointing out that the power reposed

in the President under Article 72 and the Governor

under Article 161 of the Constitution is not a matter

of grace or mercy, but is a constitutional duty of

great significance and the same has to be exercised

with great care and circumspection keeping in view

the larger public interest. He referred to the

judgment of the US Supreme Court in Biddle v.

Perovich [71 L.Ed. 1161 : 274 US 480 (1927)] as

also the judgments of this Court in Kehar Singh v.

Union of India, (1989) 1 SCC 204 : 1989 SCC (Cri)

86 and Epuru Sudhakar v. State of A.P., (2006) 8

SCC 161 : (2006) 3 SCC (Cri) 438.

Criminal Appeal Nos. 2493-2502 of 2025 Page 94 of 96

***

19. In concise, the power vested in the President

under Article 72 and the Governor under Article

161 of the Constitution is a constitutional duty.

As a result, it is neither a matter of grace nor a

matter of privilege but is an important

constitutional responsibility reposed by the

People in the highest authority. The power of

pardon is essentially an executive action, which

needs to be exercised in the aid of justice and not

in defiance of it. Further, it is well settled that the

power under Articles 72/161 of the Constitution

of India is to be exercised on the aid and advice

of the Council of Ministers.

***

47. It is clear that after the completion of the

judicial process, if the convict files a mercy

petition to the Governor/President, it is

incumbent on the authorities to dispose of the

same expeditiously. Though no time-limit can be

fixed for the Governor and the President, it is the

duty of the executive to expedite the matter at

every stage viz. calling for the records, orders

and documents filed in the court, preparation of

the note for approval of the Minister concerned,

and the ultimate decision of the constitutional

authorities. This Court, in Triveniben v. State of

Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248,

further held that in doing so, if it is established that

there was prolonged delay in the execution of death

sentence, it is an important and relevant

Criminal Appeal Nos. 2493-2502 of 2025 Page 95 of 96

consideration for determining whether the sentence

should be allowed to be executed or not.”

(emphasis supplied)

16. From the above, we would only clarify that,

notwithstanding the existence of a Circular or a

Rule introduced by way of a statutory power under

Section 473 of the BNSS, the constitutional powers

granted under Article 161 of the Constitution, can

also be exercised in a given case. Thus, even in

cases where statutory mechanisms exist, the

constitutional mandate under Article 161 of the

Constitution remains inviolable and exercisable, in

order to ensure that justice in individual cases is not

constrained by procedural norms.”

105. It is in the backdrop of the aforesaid constitutional

principles, coupled with the peculiar mitigating circumstances

noticed in the present case, that we deem it appropriate to

facilitate the right of A1 and A2 to seek pardon by permitting

them to file appropriate petitions before His Excellency, the

Hon’ble Governor of Tamil Nadu. We would only request the

constitutional authority to consider the same, which we hope and

trust shall be done by taking note of the relevant circumstances

mentioned above.

106. Accordingly, we grant eight weeks’ time from the date of

this judgment to A1 and A2 to file appropriate petitions seeking

invocation of the power of pardon under Article 161 of the

Constitution of India. Till such petitions are duly considered and

Criminal Appeal Nos. 2493-2502 of 2025 Page 96 of 96

decided, A1 and A2 shall not be arrested and the sentence

imposed upon them shall remain suspended.

107. Save and except A1 and A2, all the respondents are

directed to surrender before the Trial Court within two weeks for

serving the sentences. Trial Court shall be at liberty to initiate

coercive measures in case of non-compliance.

108. We record our appreciation for the able assistance

rendered by the counsel for both sides.

109. The captioned appeals stand allowed in the aforesaid

terms. Interim application(s), if any, shall also stand disposed.

……………………………………J.

[M. M. SUNDRESH]

……………………………………J.

[SATISH CHANDRA SHARMA]

New Delhi

May 19, 2026.