Full Judgment Text
Reportable
2025 INSC 774
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1686-1688 OF 2023
Agniraj & Ors. etc. … Appellants
versus
State through Deputy Superintendent
of Police CB-CID … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL BACKGROUND
st
1. These appeals have been filed against the judgment dated 21
March 2019, of the High Court of Madras at Madurai. The impugned
judgment upheld the conviction of the Accused Nos. 1 to 11 for the
offences punishable under Sections 302 and 307 read with Section
149 of the Indian Penal Code, 1860 (for short, ‘the IPC’), and Section
3(1) of the Tamil Nadu Prevention of Damage to Public Property Act.
The Accused Nos. 1 and 9 to 11 have also been convicted under
Section 147 of the IPC, while Accused Nos. 2 to 8 have been convicted
under Section 148 of the IPC. The appellants were sentenced to suffer
life imprisonment.
2. A First Information Report (for short, ‘the FIR’) was registered on
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.23
17:42:42 IST
Reason:
14th November 2012 under Sections 147, 148, 307, 302, and 120B of
Criminal Appeal Nos. 1686-88 of 2023 Page 1 of 27
the IPC and Section 3 of the Tamil Nadu Prevention of Damage to
Public Property Act against thirty accused persons on a complaint
made by PW-1.
3. The prosecution's case is that the family members of Accused
No. 1 had occupied the post of President of the Panchayat Board for
approximately four decades. In the 2011 elections, the wife of PW-1
won the elections. The brother of PW-1 (Deceased No. 1) worked
extremely hard during the elections. Both sides allegedly engaged in
numerous skirmishes in the months following the elections. On the
night of 14th November 2012, Deceased No. 1 (Kathiresan/brother of
PW-1), along with his son Prasanna (Deceased No. 2) and daughter
Nikila (PW-9), were travelling in a car driven by his driver (Deceased
No. 3). At around 9:30 p.m., a truck came towards them from the
opposite side. In an attempt to avoid a collision, Deceased No. 3
swerved the Scorpio car to the left, and the truck grazed the car.
Deceased No. 3 stopped the car after being hit. At that time, Accused
No. 1 and some others arrived by three motorbikes, while others
jumped from the truck and approached the car. The group was armed
with weapons and attacked the car and its inmates, and attempted to
set them on fire. PW-1 managed to escape and hid in a nearby bush.
The group attacked the three deceased to death and inflicted serious
knife injuries to PW-9. When the group tried setting the car on fire,
they spotted some men in police uniforms and fled the scene.
4. After this, PW-1 narrated the incident to PW-52 (Sub-Inspector)
and PW-56 (Deputy Superintendent of Police). A written complaint
filed by PW-1 led to the registration of the FIR mentioned above.
During the investigation, thirty-six persons were arraigned as accused.
Out of them, fifteen persons were dropped by the prosecution, and a
Criminal Appeal Nos. 1686-88 of 2023 Page 2 of 27
chargesheet was filed against twenty-one persons. PW-1 gave his no
objection to dropping the names of these fifteen persons. The
prosecution also relied upon fingerprints lifted from the Scorpio car,
which matched the fingerprints of Accused Nos. 2 and 3. PW-35, who
prepared the fingerprint report, was examined as a witness. PW-46,
who was a photographer and who took photographs of the
fingerprints, was also examined. The prosecution has also stated that
aruvals were recovered at the instance of Accused Nos. 2, 3, 4, 6 and
8. At the instance of Accused No. 5, a knife has been recovered. A
wooden log was recovered at the instance of Accused No. 11. The
prosecution has also placed reliance on paint flakes found in the
Scorpio car that matched with that of the truck.
5. The Trial Court examined fifty-eight witnesses, out of which the
material eye witnesses are PW-1(Krishnan) who is the informant, PW-2
(Loorthu Prabhu) who witnessed the incident with one Abdul
Rahman, and PW-9 (Nikila) who is the minor daughter of PW-1 and
sustained injuries.
6. Based on the evidence on record, the Trial Court vide judgment
dated 29th September 2015 convicted Accused Nos. 1 to 11 and
sentenced them to life imprisonment. The Trial Court acquitted
Accused Nos. 12 to 21 of all the charges. Against this judgment of the
Trial Court, Accused Nos. 1 to 11 filed an appeal against their
conviction before the High Court. The State and PW-1 also challenged
the acquittal of Accused Nos. 12 to 21. These appeals came to be
decided by the High Court vide the impugned judgment which
confirmed the findings of the Trial Court and dismissed all appeals.
Criminal Appeal Nos. 1686-88 of 2023 Page 3 of 27
SUBMISSIONS
7. The learned senior counsel appearing for the appellants submits
that the case of the prosecution is based on three eye witnesses,
namely PW-1, PW-2, and PW-9, all of which have material
contradictions and cannot be relied upon. He took us through the
depositions of PW-1 and contended that this was wholly unreliable as
it has material embellishments and exaggerations. While PW-1 claims
to have told PW-52 (Sub-Inspector) and PW-56 (Deputy
Superintendent of Police) about the incident at the scene of the
incident itself, no statement has been recorded by them. Instead, he,
along with an advocate and members of his political party, went with a
written complaint to the police station almost two hours after the
incident. The learned senior counsel contends that PW-1 has
exaggerated the incident and initially named thirty-six persons as
accused. Therefore, he said that he has no objection if the names of
fifteen accused persons are removed.
8. Regarding PW-2, the learned senior counsel for the appellants
submits that PW-2 is a chance witness who allegedly saw the incident
with one Abdul Rahman. This PW-2 emerged from thin air after 43
days from the date of the incident and Abdul Rahman has not even
been examined. Accordingly, an adverse inference has to be drawn
based on this. No test identification parade has been conducted either.
9. Regarding PW-9 who was 7 years and 11 months at the time of
the incident and was examined at the age of about 9 years, the
appellant contends that no preliminary questions were asked. In the
Criminal Appeal Nos. 1686-88 of 2023 Page 4 of 27
absence of voir dire examination, the appellant argues that no reliance
can be placed on her statement.
10. In relation to other corroborating evidence, the learned senior
counsel for the appellants has submitted that the fingerprint evidence
is unreliable as PW-46 who was the photographer had denied taking
the photos of the fingerprints and these photographs have not been
exhibited either. No Mazhar was prepared of the fingerprints appearing
in the car or while taking the fingerprints of the accused either. The
learned senior counsel for the appellants also submits that there are
contradictions in the recovery of weapons. No proper procedure was
followed while collecting the paint flakes on the car either as mazhar
was not prepared and no record was produced to show where the paint
flakes were picked up from and to whom it was handed over.
11. The learned Additional Advocate General appearing for the State
made a preliminary objection regarding the jurisdiction of this Court
to consider the evidence that was on record before the Trial Court and
the High Court. He made a distinction between the jurisdiction of this
Court under Article 136 of the Constitution of India and Article 134
which is the criminal appellate jurisdiction. The learned senior
counsel vehemently submitted that this Court while exercising
jurisdiction under Article 136 has to only consider whether the
findings recorded by the High Court or Trial Court suffers from any
manifest illegality or perversity and cannot reappreciate evidence. In
cases where there are concurrent findings of conviction such as the
present, the learned senior counsel submitted that this Court cannot
interfere with such findings by reappreciating evidence.
12. The learned senior counsel supported the findings of both the
Trial Court and the High Court and submitted that the appellants
Criminal Appeal Nos. 1686-88 of 2023 Page 5 of 27
have not been able to controvert any of these findings. He stated that
there is nothing to show that PW-1 was planted or was not present at
the scene of the incident. The presence of PW-1 is also established by
the statement of PW-9 and other witnesses. He submitted that there is
no embellishment or material contradictions in the testimony of PW-1.
The allegation of tutoring and making false allegations was rejected by
the Trial Court and the High Court. He has also explained the delay of
approximately 2 hours in registering the FIR by explaining the chain of
events after the incident.
13. On the argument that there was a delay in recording the
statement of PW-2, the learned senior counsel for the State contends
that PW-2 could not approach the police as he had witnessed a
gruesome attack by and against people he knew making his fear
justifiable. The conduct of a person who has witnessed such a
murderous assault can differ from person to person. As the statement
of PW-2 has been consistent, it cannot be disregarded only because of
the delay and because he knew PW-1 and his family. Further, it is not
necessary that adverse inference has to be drawn for not examining
Abdul Rahman as the totality of circumstances has to be seen.
The learned senior counsel submitted that the Trial Court and
14.
High Court found the testimony of PW-9 as reliable. The High Court
had made an observation that preliminary questions were put to PW-
9. Even if they were not put, it cannot be the sole reason for rejecting
the witness testimony of PW-9. He has also relied on corroborating
evidence such as the fingerprints of accused Nos. 2 and 3 being found
in the car, blood recovery from bikes of the accused, and the paint
flakes of the truck matching with the car. Accordingly, the learned
senior counsel submitted that there is no scope to interfere with the
Criminal Appeal Nos. 1686-88 of 2023 Page 6 of 27
concurrent findings of both the Trial Court and the High Court in the
limited jurisdiction that this Court has when hearing cases under
Article 136 of the Constitution of India.
CONSIDERATION
Consideration of material prosecution witnesses
15. The material prosecution witnesses are PW-1 (Krishnan) who is
the first informant and alleged eye-witness, PW-2 (Loorthu Prabhu)
and PW-9 (Nikila), a minor witness. Firstly, we deal with the evidence
of PW-1 (Krishnan). He stated that one of his brothers was working as
the Secretary of the District Student Group in the AIADMK party. PW-
1 (Krishnan) further deposed that the said brother was the deceased,
Kathiresan. His wife is Prema. Kathiresan and Prema had two
children, Prasanna and Nikila (PW-9). He stated that for 40 years, the
father of the accused No.1 (since deceased), was the Panchayat
President of Periyakannoor. After the demise of his father, accused
No.1 and thereafter, his wife became the President. PW-1’s wife
(Sathya) and accused No.1’s wife contested the election against each
other in the year 2011. PW-1’s wife was elected as the Panchayat
President. Kathiresan worked hard in the election of Sathya.
According to PW-1 (Krishnan), the accused No. 1 belonged to the
Communist Party. He has given a history of the dispute between his
family and the family of the accused.
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16. He deposed about the incident that occurred on 14 November
2012 by stating that at about 6:30 pm, his brother Kathiresan, his son
Prasanna and daughter Nikila (PW-9) came by a Scorpio car which
was driven by his driver, Boominathan, to his village. He stated that
when he along with Kathiresan started for Sivagangai in the night at 9
Criminal Appeal Nos. 1686-88 of 2023 Page 7 of 27
pm, Kathiresan was sitting on the seat to the left of the driver, PW-1
was on the rear seat behind his brother and Nikila (PW-9) and
Prasanna were sitting on his right-hand side. He stated that at about
9:30 pm, an oncoming truck came towards the Scorpio car. To avoid a
collision, the driver turned the car to the left side but the truck grazed
the car. At that time, Kathiresan asked the driver to switch on the
lights inside the car. He saw accused No. 7 (Vijaykumar) getting out of
the truck with a 10-litre white can. At that time, 6 to 7 people got out
of the truck with weapons like aruval, knife and wooden log. Four
motorcycles came there. From the said motorcycles, accused No. 1
(Arjunan), accused No. 2 (Agniraj), accused No. 3 (Sathyaraj), accused
No. 4 (Paulpandi), accused No. 6 (Yoganathan), accused No. 9
(Kanthamalai), accused No. 10 (Ganesan), accused No. 13
(Muthukumar) and accused No. 17 (Bose), came there. Accused No.1
(Arjunan) shouted to cut the persons sitting inside the car and burn
them by pouring kerosene. At that time, accused Nos. 5 (Siva Kumar),
8 (Suresh @ Lenin Kumar),11 (Jayakumar), 14 (Kanagarajan) and 16
(Rajamani) also came with accused No.7 (Vijaykumar). Accused No.8
(Suresh @ Lenin Kumar) broke the car mirror and accused No.2
(Agniraj) smashed the windscreen of the car with the aruval in his
hand. When Kathiresan got out of the car, accused No.2 (Agniraj)
assaulted him with an aruval. By that time, PW-1 (Krishnan) had
gotten out of the car. Kathiresan told him to run away. He ran into
Karuvelam tree bush. He deposed that the accused No.3 (Sathyaraj)
hit the head of Prasanna, and he fell into the nearby stream. Accused
No.4 (Paulpandi) assaulted the driver of the car on his head with an
aruval.
17. Accused No. 5 (Sivakumar) stabbed and injured the driver
Boominathan with a knife. Accused No.6 (Yoganathan) pulled out
Criminal Appeal Nos. 1686-88 of 2023 Page 8 of 27
Nikila (PW-9) and assaulted her on her head with an aruval.
Thereafter, all the accused came together and assaulted Kathiresan,
his son and the driver. They poured kerosene, which was in the 10-
litre white colour can, around the car. At the time of setting the car on
fire, a van came from the other side. Accused No.3 (Sathyaraj) told the
driver of the Tata Magic van to go away. However, the van stopped and
two police men wearing uniforms got down of that van. The accused
who came by motorcycles went back by motorcycles, and others sat in
the truck of accused No.7 (Vijaykumar) and left. The witness stated
that he saw two police men coming, and after the accused left, he
came to the place of occurrence from the place where he was hiding in
the bush. The witness claimed that he had seen the occurrence
through the headlight of the car, the light inside the car and the light
of the truck. The witness stated that he received a call from his father.
At that time, the witness talked about the details of the incident to his
father. Thereafter, one person stopped his Maruti car, and he called
the telephone No. 108. The witness further stated that a bus came
there and 4 to 5 policemen got down from the bus. The policemen
enquired about the incident. These policemen informed the police
department. He stated that Kathiresan, his son Prasanna and his
driver died. Thereafter, the 108 van came. On his complaint, an FIR
was registered.
18. Now, we come to the cross-examination of the PW-1. In the
cross-examination, he stated that he was hiding in a bush during the
occurrence. He came out after the police had arrived. He stated that
when he went to the place of occurrence from the bush, the Deputy
Superintendent of Police (for short ‘the DSP’) had arrived at the place.
When he was crying, the DSP questioned him. He told the details to
the DSP. He was not sure whether the DSP recorded the information
Criminal Appeal Nos. 1686-88 of 2023 Page 9 of 27
given by him in writing. He stated that from the Superintendent of
Police to the higher police officers, all came to the place of occurrence.
He stated that he went to the hospital at 10:45 pm. In the hospital, the
doctors asked him about the incident. Though there were number of
police officials in the hospital, no one enquired with him about the
incident. He stated that he did not disclose anything to anyone. He
stated that he went to the Taluka Police Station from the hospital,
which is where he gave a complaint.
19. He admitted that when he gave the report for the first time, he
stated that 36 persons stood around the car by which they were
travelling. When his deceased brother got down from the car, he also
got down from the car. In further cross-examination, he stated that he
got down from the car and ran through the field and did not hide. He
stated that he did not tell that to the police. He stated that he did not
hide in the stream, he just ran across the stream and disappeared. He
stated that no one had an axe in their hand and they were carrying
rods. They did not attack anybody with the rods. They only attacked
the car with the aruval and rod.
20. The witness stated that he showed to the DSP, the place where
he was hiding. He accepted that it was dark at the time of the incident
and nothing could be seen without light. He stated that he saw the
incident with the help of the car light and other lights. Thereafter, he
stated that there were more than 20 persons who were attacking the
car by using aruvals, rods and wooden logs. The witness stated that
when he lifted the deceased Prasanna, there was blood all over his
head and body. He stated that his shirt and dhoti were fully stained in
blood when the police arrived. In the cross-examination, he again
claimed that he could see the incident from the place where he was
Criminal Appeal Nos. 1686-88 of 2023 Page 10 of 27
hiding. He stated that he did not remember whether he told in the
police enquiry that accused-Vijayakumar got down along with a
kerosene can.
21. A very lengthy cross-examination was done on political parties
such as AIADMK and Community Party. He admitted that he had no
objection for removal of persons named as accused by him earlier.
22. Then we come to the evidence of PW-2 (Loorthu Prabhu). At the
time of incident, one Abdul Rehman was with PW-2. It must be noted
here that the said Abdul Rehman has not been examined by the
prosecution. He stated that while he, along with Abdul Rehman, were
proceeding on a motorcycle on Ilayangudi road, deceased Kathiresan’s
car overtook them. Thereafter, a truck came towards the Scorpio car of
Kathiresan. However, the driver drove the car to the left-hand side to
avoid collision but the truck grazed the car. He stated that the accused
No. 7 (Vijaykumar) got down from the driver’s side of the truck and
came along with one white colour can. Seven or eight people jumped
along with him. Accused No. 8 (Suresh @ Lenin Kumar) came with
aruval and accused No. 11 (Jayakumar) came with a wooden log. The
witness stated that accused No. 1 (Arjunan), accused No. 2 (Agniraj),
accused No. 3 (Sathyaraj), accused No. 6 (Yoganathan), accused No. 9
(Karanthamalai), accused No. 10 (Ganesh) arrived along with accused
No. 4 (Paulpandi) and accused No. 5 (Sivakumar). They were carrying
aruvals and wooden logs. He stated that the headlights of the car were
on. He and Abdul Rehman disappeared behind a Tamarind tree. He
stated that accused No. 1 (Arjunan) showed to Kathiresan and set him
on fire by pouring kerosene. At that time, accused No. 8 (Suresh @
Lenin Kumar) smashed the side mirror of the car with the aruval in
his hand. Kathiresan got out of the car, at that time, accused No. 2
Criminal Appeal Nos. 1686-88 of 2023 Page 11 of 27
(Agniraj) assaulted deceased Kathiresan on his head with his aruval.
He said that “you have spoiled my life and you will die with it”. He
alleged that accused No. 3 (Sathyaraj) cut Kathiresan’s head with an
aruval. He alleged that accused No. 4 (Paulpandi) and accused No. 5
(Sivakumar) cut Boominathan’s head. Accused No. 5 (Sivakumar)
stabbed him in the right and left shoulders with the knife. Accused
No. 6 (Yoganathan) pulled PW-9 (Nikila) out of the car and assaulted
her on her head with an aruval. She fell down. Thereafter, accused No.
3 (Sathyaraj) and 7 (Vijayakumar) poured kerosene around Kathiresan
and his car. At that time, one Tata Magic van came. Acccused No. 8
(Suresh @ Lenin Kumar) and 9 (Karanthamali) told persons in the van
not to stop, otherwise, they would kill them. However, the van stopped
and policemen in uniform got down from the van and went to the place
of occurrence.
23. What is important to note is that next day, in the morning, he
dropped Abdul Rehman at his house, kept his motorcycle in his sister’s
house and left for Coimbatore. He stated that he came to know about
the incident when he saw it in the newspaper. He stated that he was
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scared to tell anybody about the incident. He stated that on 24
December, 2012, he came to the village for Christmas. After hearing a
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sermon, he went to CBCID office at Madurai on 26 December, 2012
and told the truth. So, for 1 month and 12 days, witness did not
inform the police about the incident. All this has come in the
examination-in-chief of the witness.
24. In the cross-examination, he admitted that after the occurrence,
he went to his house directly with his friend. When he went to his
house, his father was there. On the next day, he left his house at 5 am
or 6 am. Thereafter, he came to his friend’s place in Sivagangai. Thus,
Criminal Appeal Nos. 1686-88 of 2023 Page 12 of 27
there is a gross delay on the part of the police in recording statement
of PW-2 (Loorthu Prabhu). There is no explanation for this delay.
25. Now, we come to the evidence of PW-9 (Nikila). The law is well
settled that before proceeding to record the evidence of a minor
witness, preliminary questions must be asked by the Court to
ascertain whether the witness is able to understand the questions and
answer the same. The Court must be satisfied about the capacity of
the minor to understand the questions and answer the same. In this
case, the age of PW-9 (Nikila) was 10 years. However, preliminary
questions were not put to the witness. The Court did not ask any
question to the witness to ascertain whether she understands the
importance of an oath. Without satisfying himself that the witness
understands the importance of an oath, the learned Trial Judge
administered oath to her. It is very well known that child witnesses are
susceptible to tutoring and therefore, not asking preliminary questions
to the minor witness makes her evidence very vulnerable.
26. The witness states that she was able to identify the persons who
attacked them on that day. She stated that she had not identified the
persons earlier whom she was now identifying in the Court. The
witness identified some of the accused sitting in the Court. She stated
that she was seeing them for the first time after the date of the
incident. Admittedly, test identification parade was not conducted. She
stated that her mother told her in detail what had happened to her
and how many days she was in the hospital.
27. As noted earlier, PW-9 (Nikila) was 10 years old on the date of
recording of evidence. The Trial Court has not followed the condition
precedent before examining a minor witness. Before administering
Criminal Appeal Nos. 1686-88 of 2023 Page 13 of 27
oath, the learned Trial Judge did not satisfy himself that the witness
understood the importance of the oath.
28. Moreover, she deposed that after the date of occurrence, for the
first time in the Court, she identified several accused. But test
identification parade was not held. From the answers given in the
cross-examination that her mother told her the details of what
happened to her, the possibility of tutoring the witness cannot be
ruled out. Minors are prone to tutoring and in this case, we are
dealing with a minor child who was 10 years old.
In the evidence of PW-1, it is brought on record that accused No.
29.
1’s wife was defeated by PW-1’s wife (Sathya) in the local panchayat
election. Accused No. 1 belongs to the Communist Party of India and
PW-1’s wife (Sathya) was a member of the AIADMK political party.
Though the DSP and other police officers met PW-1 (Krishnan) at the
scene of the offence, they did not record his statement. It has come on
record that PW-1 (Krishnan) did not directly go to the police station to
record his complaint. Instead, PW-1 (Krishnan) along with an advocate
(Thangapandiyan), PW-14 (Anbumani, AIADMK Counsellor) and PW-
15 (Nickson Anand, AIADMK Secretary) went to the police station and
handed over a written complaint to PW-52. There was a political
rivalry between him and accused No. 1. PW-1’s wife was a member of
AIADMK. The possibility of filing complaint after deliberation with the
supporters of AIADMK cannot be ruled out. In the written complain,
PW-1 (Krishnan) named 22 persons as accused. During investigation,
36 persons were treated as accused, out of which, only 21 persons
were charged. By a report at Exhibit P-107, 15 accused persons were
dropped with the consent of PW-1 (Krishnan). The reason given in the
report is that PW-1 (Krishnan) was nervous and hence, he exaggerated
Criminal Appeal Nos. 1686-88 of 2023 Page 14 of 27
the incident by naming the said 15 accused. He gave no objection for
deletion of 15 accused. PW-1 (Krishnan) admitted that, in his report,
he stated that 36 persons stood around the Scorpio car. Then he came
out with the theory that there were 20 persons. PW-1 (Krishnan) has
obviously exaggerated the incident due to their political rivalry. It is
obvious that he was unsure about the number of accused who were
present at the time of the incident. Out of the 21 accused who were
ultimately charged, accused Nos. 1 to 11 were convicted and other
accused were acquitted. The incident happened after 09:30 pm. PW-1
(Krishnan) has not stated the distance between the bush in which he
was hiding and the spot of the incident. There is a serious doubt
whether he could have seen the incident in the light of the car.
Therefore, the evidence of PW-1 (Krishnan) does not inspire
confidence.
30. As far as PW-2 (Loorthu Prabhu) is concerned, for more than one
and a half months, he did not approach the police or filed a complaint
in any form. He claims to have become wise after a gap of 43 days after
hearing a sermon during Christmas. Considering the conduct of the
witness of remaining silent for a long period of one and a half months,
the testimony of this witness cannot be believed. Moreover, during this
period, he moved from place to place. It is not his case that anyone
threatened him during the said period. Moreover, he stated that one
Abdul Rehman was an eye-witness. However, the prosecution failed to
examine him. Therefore, adverse inference will have to be drawn
against the prosecution.
31. As far as PW-9 (Nikila) is concerned, we have already recorded
reasons for discarding her testimony. Since the condition precedent for
Criminal Appeal Nos. 1686-88 of 2023 Page 15 of 27
recording of statement of PW-9 (Nikila) for evidence has not been
satisfied, her testimony has to be kept out of consideration.
Consideration of other materials on record
32. The prosecution has heavily relied upon the evidence of
fingerprints of accused No. 2 (Agniraj) and accused No. 3 (Sathyaraj)
found on the Scorpio car. PW- 46 (Prithiviraj) is a photographer who
allegedly took photographs of the fingerprints. What is important is
that no Mahazar was drawn at the time of taking photographs of the
fingerprints allegedly appearing on the Scorpio car. Moreover, the
photographs taken were not exhibited. Similarly, no Mahazar was
recorded while taking the fingerprints of the accused. The case of the
prosecution is that the fingerprints found on Scorpio car matched the
specimen fingerprints of accused Nos. 2 (Agniraj) and 3 (Sathyaraj).
This fact becomes relevant only if the fact of taking photographs of
fingerprints on the Scorpio car is proved. PW-46 (Prithviraj) stated that
he took photographs of the fingerprints on the Scorpio car. In the
cross-examination, he stated that he did not remember whether he
had taken photos of fingerprints like that earlier. His examination-in-
chief is silent about any Mahazar drawn at the time of taking
photographs of the fingerprints on the car. The failure of the
prosecution to draw a Mahazar or Panchnama at the time of taking
photographs of the fingerprints on the car goes to the root of the
matter. The case made out by the prosecution cannot be accepted for
the reasons recorded above.
33. Then we come to the evidence of recovery. According to the
prosecution, aruvals were recovered at the instance of accused Nos. 2
(Agniraj), 3 (Sathyaraj) and 6 (Yoganathan) from the bush near the
Criminal Appeal Nos. 1686-88 of 2023 Page 16 of 27
shutter of Periya Ooran in Athapadaki village. The recovery is shown
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from the same place on 5 December, 2012 at three different times.
Even recovery of aruval at the instance of accused No. 4 (Paulpandi)
and recovery of knife at the instance of accused No. 5 (Sivakumar) was
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at two different times on 10 December, 2012 from the same place
which is a thorny bush under the bridge on the way to EID Parry
Company. A wooden log was recovered at the instance of accused No.
11 (Jayakumar) from the bush opposite to Government Arts College
which is an open place. Aruval was shown recovered at the instance of
accused No. 8 (Suresh @ Lenin Kumar) from bushes in a dilapidated
building opposite to Government hostel for college students.
34. The evidence of PW-2 (Loorthu Prabhu) and PW-9 (Nikila) is
required to be discarded for the reasons which were set out above. We
have also found that the evidence of PW-1 is not trustworthy. In any
case, the conviction cannot be supported only on the basis of his
evidence.
35. We have perused the judgments of the Trial Court and the High
Court. We found that both the courts have completely brushed aside
the factors which we have highlighted above from the evidence which
make it impossible for any Court to believe the testimonies of these
three witnesses and act upon the same. According to us, if evidence of
PW-1 (Krishnan), PW-2 (Loorthu Prabhu) and PW-9 (Nikila) and
fingerprints allegedly found are to be ignored, what remains is the
evidence of the alleged recovery of weapons at the instance of the
accused. Only on the basis of recovery, by no stretch of imagination
can the accused be convicted.
Criminal Appeal Nos. 1686-88 of 2023 Page 17 of 27
Scope of Appellate Jurisdiction of this Court under Article 136 of
the Constitution
36. Learned counsel appearing for the State tried to make a
distinction between appellate jurisdiction in criminal matters of this
Court under Article 134 and jurisdiction under Article 136. He mainly
relied upon the decisions of this court in the case of Pappu v. State
1
of Uttar Pradesh and Mst Dalbir Kaur and Others v. State of
2
. He submitted that these two decisions dealing with the scope
Punjab
of appellate jurisdiction of this Court under Article 136 of the
Constitution have been consistently followed.
In paragraphs 63 and 71 of the decision of this Court in the case
37.
1
of it was held thus:
Pappu v. State of Uttar Pradesh
“
The scope and width of these appeals
63. As could be readily noticed, in the wide range of
submissions made on behalf of the appellant, the
concurrent findings leading to his conviction have
been challenged as if it were a matter of regular
appeal; and are practically to the effect that the
entire evidence led in the matter be reappreciated on
its contents as also its surrounding factors. However,
while entering into the process of analysis, we
cannot lose sight of the fact that the present one is a
matter of concurrent findings of fact by the trial
court and the High Court. Though the periphery of
an appeal by special leave under Article 136 of the
Constitution of India and the parameters of
examining the matters in such appeals have been
laid down repeatedly by this Court in several of the
decisions but, having regard to the submissions
made in this case, we feel rather impelled to
recapitulate the nuanced principles, particularly on
1 (2022) 10 SCC 321
2 (1976) 4 SCC 158
Criminal Appeal Nos. 1686-88 of 2023 Page 18 of 27
the subtle but relevant distinction in the scope of a
regular appeal and an appeal by special leave.
71. In summation of what has been noticed
hereinabove, it is but clear that as against any
judgment/final order or sentence in a criminal
proceeding of the High Court, regular appeals to this
Court are envisaged in relation to the eventualities
specified in Article 134 of the Constitution of India
and Section 2 of the 1970 Act. The present one is
not a matter covered thereunder and the present
appeals are by special leave in terms of Article 136 of
the Constitution of India. In such an appeal by
special leave, where the trial court and the High
Court have concurrently returned the findings of fact
after appreciation of evidence, each and every
finding of fact cannot be contested nor such an
appeal could be dealt with as if another forum for
reappreciation of evidence. Of course, if the
assessment by the trial court and the High Court
could be said to be vitiated by any error of law or
procedure or misreading of evidence or in disregard
to the norms of judicial process leading to serious
prejudice or injustice, this Court may, and in
appropriate cases would, interfere in order to prevent
grave or serious miscarriage of justice but, such a
course is adopted only in rare and exceptional cases
of manifest illegality. Tersely put, it is not a matter of
regular appeal. This Court would not interfere with
the concurrent findings of fact based on pure
appreciation of evidence nor it is the scope of these
appeals that this Court would enter into
reappreciation of evidence so as to take a view
different than that taken by the trial court and
approved by the High Court.”
37.1 In appropriate cases, this Court can interfere with the
concurrent findings of the Courts when the assessment of evidence is
vitiated by misreading of the evidence. However, this should be done in
rare and exceptional cases of manifest illegality.
Criminal Appeal Nos. 1686-88 of 2023 Page 19 of 27
2
38. In the case of ,
Mst Dalbir Kaur and Others v. State of Punjab
in paragraphs 2, 3 and 8, this Court held thus:
“2. Two questions arise in these appeals:
“( 1 ) Can this Court in a criminal appeal by special
leave enter into a fresh review or reappraisement of
the evidence and examine the question of credibility
of witnesses where the two courts have concurrently
found that the prosecution case against the
appellants has been proved; and
( 2 ) Is it open to the appellants, once special leave is
granted, to argue on questions of fact at the hearing,
or is he required to confine his arguments only to the
points on which special leave could be granted.”
Not that these points are not covered by authorities
but in spite of a catena of decisions of this Court
laying down the various principles from time to time
over two decades and a half, counsel for the parties
have been insisting upon this Court to go into the
questions of fact in order to examine whether the
judgment of the High Court is correct. I would,
therefore, like to review the decisions of this Court on
the two points mentioned above so as to clarify the
position and settle the controversy once for all.
3. As to the principles on which special leave is
granted by this Court, the same have been clearly and
explicitly enunciated in a large number of decisions of
this Court. It has been pointed out that the Supreme
Court is not an ordinary court of criminal appeal and
does not interfere on pure questions of fact. It is only
in very special cases where the court is satisfied that
the High Court has committed an error of law or
procedure as a result of which there has been a
serious miscarriage of justice that the court would
interfere with the concurrent findings of the High
Court and the trial court. It has also been pointed out
by this Court more than once that it is not in the
province of this Court to reappraise the evidence and
Criminal Appeal Nos. 1686-88 of 2023 Page 20 of 27
to go into the question of credibility of the witnesses
examined by the parties, particularly when the courts
below have after considering the evidence, given their
findings thereon. In other words, the assessment of
the evidence by the High Court would be taken by
this Court as final, unless it is vitiated by any error of
law or procedure, by the principles of natural justice,
by errors of record or misreading of evidence, non-
consideration of glaring inconsistencies in the
evidence which demolish the prosecution case or
where the conclusion of the High Court is manifestly
perverse and unsupportable and the like. As early as
1950 this Court in Pritam Singh v. State [1950 SCC
189 : AIR 1950 SC 169 : 1950 SCR 453 : 51 Cri LJ
1270] speaking through Fazal Ali, J. (as he then was)
observed as follows:
“The obvious reply to all these arguments advanced
by the learned counsel for the appellant, is that this
Court is not an ordinary court of criminal appeal and
will not, generally speaking, allow facts to be
reopened, especially when two courts agree in their
conclusion in regard to them and when the
conclusions of fact which are challenged are
dependent on the credibility of witnesses who have
been believed by the trial court which had the
advantage of seeing them and hearing their evidence.
In arguing the appeal, Mr Sethi proceeded on the
assumption that once an appeal had been admitted
by special leave, the entire case was at large and the
appellant was free to contest all the findings of fact
and raise every point which could be raised in the
High Court or the trial court. This assumption is, in
our opinion, entirely unwarranted.
The rule laid down by the Privy Council is based on
sound principle, and, in our opinion, only those
points can be urged at the final hearing of the appeal
which are fit to be urged at the preliminary stage
when leave to appeal is asked for, and it would be
Criminal Appeal Nos. 1686-88 of 2023 Page 21 of 27
illogical to adopt different standards at two different
stages of the same case.
On a careful examination of Article 136 along with
the preceding article, it seems clear that the wide
discretionary power with which this Court is invested
under it is to be exercised sparingly and in
exceptional cases only....
Generally speaking, this Court will not grant special
leave, unless it is shown that exceptional and special
circumstances exist, that substantial and grave
injustice has been done and that the case in question
presents features of sufficient gravity to warrant a
review of the decision appealed against.”
Analysing this decision, two principles appear to have
been clearly laid down by this Court:
“( 1 ) that in appeals by special leave against the
concurrent findings of the courts below, this Court
would not go into the credibility of the evidence and
would interfere only when exceptional and special
circumstances exist which result in substantial and
grave injustice having been done to the accused; and
( 2 ) that even after special leave has been granted the
appellant is not free to contest all the findings of fact,
but his arguments would be limited only to those
points even at the final hearing, which could be urged
at the stage when the special leave to appeal is asked
for.”
This case was followed by another Bench decision of
this Court a little later in Mohinder
Singh v. State [1950 SCC 673 : AIR 1953 SC 415 :
1950 SCR 821] where this Court observed thus:
“This Court, as was pointed out in Pritam
Singh v. State [1950 SCC 189 : AIR 1950 SC 169 :
1950 SCR 453 : 51 Cri LJ 1270] will not entertain a
criminal appeal except in special and exceptional
cases where it is manifest that by a disregard of the
forms of legal process or by a violation of the
Criminal Appeal Nos. 1686-88 of 2023 Page 22 of 27
principles of natural justice or otherwise substantial
and grave injustice has been done.”
In Hem Raj v. State of Ajmer [AIR 1954 SC 462 :1954
SCR 1133 : 1954 Cri LJ 1313] the same principle was
reiterated by Mahajan, C.J., speaking for the Court,
where it was observed thus:
“Unless it is shown that exceptional and special
circumstances exist that substantial and grave
injustice has been done and the case in question
presents features of sufficient gravity to warrant a
review of the decision appealed against, this Court
does not exercise its overriding powers under Article
136(1) of the Constitution and the circumstance that
because the appeal has been admitted by special
leave does not entitle the appellant to open out the
whole case and contest all the findings of fact and
raise every point which could be raised in the High
Court. Even at the final hearing only those points can
be urged which are fit to be urged at the preliminary
stage when the leave to appeal is asked for.”
In Khacheru Singh v. State of Uttar Pradesh [AIR 1956
SC 546 : 1956 Cri LJ 950] it was pointed out that this
Court does not interfere with the findings of fact
arrived at by the courts below, unless something
substantial has been shown to persuade this Court to
go behind the findings of fact. Imam, J., who spoke for
the Court observed as follows:
“In an appeal by way of special leave this Court
usually does not interfere with the findings of fact
arrived at by the courts below and nothing
substantial has been shown to persuade us to go
behind the findings of fact arrived at by them.”
In Saravanabhavan v. State of Madras [AIR 1966 SC
1273 : 1966 Cri LJ 949] Hidayatullah, J., (as he then
was) speaking for the majority crystallised and
reiterated the principles already laid down by this
Court on previous occasions and observed as follows:
Criminal Appeal Nos. 1686-88 of 2023 Page 23 of 27
“No doubt this Court has granted special leave to the
appellants but the question is one of the principles
which this Court will ordinarily follow in such an
appeal. It has been ruled in many cases before that
this Court will not reassess the evidence at large,
particularly when it has been concurrently accepted
by the High Court and the court or courts below. In
other words this Court does not form a fresh opinion
as to the innocence or the guilt of the accused. It
accepts the appraisal of the evidence in the High
Court and the court or courts below. Therefore, before
this Court interferes something more must be shown,
such as, that there has been in the trial a violation of
the principles of natural justice or a deprivation of the
rights of the accused or a misreading of vital evidence
or an improper reception or rejection of evidence
which, if discarded or received, would leave the
conviction unsupportable, or that the court or courts
have committed an error of law or of the forms of legal
process or procedure by which justice itself has failed.
We have, in approaching this case, borne these
principles in mind. They are the principles for the
exercise of jurisdiction in criminal cases, which this
Court brings before itself by a grant of special leave.”
The minority judgment in the same case by Wanchoo,
J., (as he then was), so far as the question of
interference by this Court was concerned, also took
more or less the same view and observed as follows:
“Ordinarily, this Court does not go into the evidence
when dealing with appeals under Article 136 of the
Constitution particularly when there are concurrent
findings. This does not mean that this Court will in
no case interfere with a concurrent finding of fact in a
criminal appeal; it only means that this Court will not
so interfere in the absence of special circumstances.
One such circumstance is where there is an error of
law vitiating the finding as, for example, where the
conviction is based on the testimony of an accomplice
without first considering the question whether the
accomplice is a reliable witness. Another
Criminal Appeal Nos. 1686-88 of 2023 Page 24 of 27
circumstance is where the conclusion reached by the
courts below is so patently opposed to well
established principles of judicial approach, that it can
be characterised as wholly unjustified or perverse.”
The only difference between the two views was that
while the majority view was that except for the
principles mentioned above the Supreme Court could
never interfere with the concurrent findings of fact in
a criminal appeal, the minority view agreed with the
principles but it held that in view of special
circumstances as pointed out in the observations
quoted above the Court could interfere. At any rate,
according to both the views the ratio is that this
Court would not normally interfere with the
concurrent findings of fact, unless there are special
circumstances justifying interference.
8. Thus, the principles governing interference by this
Court in a criminal appeal by special leave may be
summarised as follows:
“( 1 ) that this Court would not interfere with the
concurrent finding of fact based on pure appreciation
of evidence even if it were to take a different view on
the evidence;
(2) that the Court will not normally enter into a
reappraisement or review of the evidence, unless the
assessment of the High Court is vitiated by an error of
law or procedure or is based on error of record,
misreading of evidence or is inconsistent with the
evidence, for instance, where the ocular evidence is
totally inconsistent with the medical evidence and so
on;
( 3 ) that the Court would not enter into credibility of
the evidence with a view to substitute its own opinion
for that of the High Court;
( 4 ) that the Court would interfere where the High
Court has arrived at a finding of fact in disregard of a
judicial process, principles of natural justice or a fair
hearing or has acted in violation of a mandatory
Criminal Appeal Nos. 1686-88 of 2023 Page 25 of 27
provision of law or procedure resulting in serious
prejudice or injustice to the accused;
( 5 ) this Court might also interfere where on the
proved facts wrong inferences of law have been drawn
or where the conclusions of the High Court are
manifestly perverse and based on no evidence.”
It is very difficult to lay down a rule of universal
application, but the principles mentioned above and
those adumbrated in the authorities of this Court
cited supra provide sufficient guidelines for this Court
to decide criminal appeals by special leave.
Thus, in a
criminal appeal by special leave, this Court at the
hearing examines the evidence and the judgment
of the High Court with the limited purpose of
determining whether or not the High Court has
followed the principles enunciated above. Where
the Court finds that the High Court has
committed no violation of the various principles
laid down by this Court and has made a correct
approach and has not ignored or overlooked
striking features in the evidence which demolish
the prosecution case, the findings of fact arrived
at by the High Court on an appreciation of the
evidence in the circumstances of the case would
not be disturbed .”
(emphasis added)
38.1 This decision refers to the requirement of this Court examining
the evidence and judgment of the High Court. It lays down that if this
Court finds that High Court has overlooked striking features in the
evidence which demolish the prosecution’s case, a finding of fact
recorded can be disturbed by this Court.
39. None of these decisions prevent this Court from reappreciating
evidence in a criminal appeal arising out of Article 136 of the
Constitution against an order of conviction. Without appreciating the
evidence, this Court cannot decide whether the case is within the
Criminal Appeal Nos. 1686-88 of 2023 Page 26 of 27
parameters laid down in the aforesaid decisions. These decisions only
lay down the self-imposed constraints on interference with the
concurrent findings of the fact recorded by the Trial Court and the
High Court.
40. In this case, the analysis of the evidence of material witnesses
made by us shows that the Trial Court and High Court have misread
the evidence of these material prosecution witnesses. Very striking
features of the prosecution’s case and evidence have been ignored by
the Courts.
Therefore, in this case, interference will have to be made with the
41.
impugned judgments. We are of the view that the guilt of the accused
has not been proved beyond a reasonable doubt. All the appellants
have undergone sentence for more than 9 years and 4 months.
42. Hence, the appeals are allowed. The impugned Judgments of the
High Court and the Trial Court are hereby set aside and the
appellants are acquitted of the offences alleged against them. They
shall be released from custody forthwith, if not required in any other
case.
..…………………...J.
(Abhay S. Oka)
..…………………...J.
(Ujjal Bhuyan)
New Delhi;
May 23, 2025
Criminal Appeal Nos. 1686-88 of 2023 Page 27 of 27
2025 INSC 774
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1686-1688 OF 2023
Agniraj & Ors. etc. … Appellants
versus
State through Deputy Superintendent
of Police CB-CID … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL BACKGROUND
st
1. These appeals have been filed against the judgment dated 21
March 2019, of the High Court of Madras at Madurai. The impugned
judgment upheld the conviction of the Accused Nos. 1 to 11 for the
offences punishable under Sections 302 and 307 read with Section
149 of the Indian Penal Code, 1860 (for short, ‘the IPC’), and Section
3(1) of the Tamil Nadu Prevention of Damage to Public Property Act.
The Accused Nos. 1 and 9 to 11 have also been convicted under
Section 147 of the IPC, while Accused Nos. 2 to 8 have been convicted
under Section 148 of the IPC. The appellants were sentenced to suffer
life imprisonment.
2. A First Information Report (for short, ‘the FIR’) was registered on
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.23
17:42:42 IST
Reason:
14th November 2012 under Sections 147, 148, 307, 302, and 120B of
Criminal Appeal Nos. 1686-88 of 2023 Page 1 of 27
the IPC and Section 3 of the Tamil Nadu Prevention of Damage to
Public Property Act against thirty accused persons on a complaint
made by PW-1.
3. The prosecution's case is that the family members of Accused
No. 1 had occupied the post of President of the Panchayat Board for
approximately four decades. In the 2011 elections, the wife of PW-1
won the elections. The brother of PW-1 (Deceased No. 1) worked
extremely hard during the elections. Both sides allegedly engaged in
numerous skirmishes in the months following the elections. On the
night of 14th November 2012, Deceased No. 1 (Kathiresan/brother of
PW-1), along with his son Prasanna (Deceased No. 2) and daughter
Nikila (PW-9), were travelling in a car driven by his driver (Deceased
No. 3). At around 9:30 p.m., a truck came towards them from the
opposite side. In an attempt to avoid a collision, Deceased No. 3
swerved the Scorpio car to the left, and the truck grazed the car.
Deceased No. 3 stopped the car after being hit. At that time, Accused
No. 1 and some others arrived by three motorbikes, while others
jumped from the truck and approached the car. The group was armed
with weapons and attacked the car and its inmates, and attempted to
set them on fire. PW-1 managed to escape and hid in a nearby bush.
The group attacked the three deceased to death and inflicted serious
knife injuries to PW-9. When the group tried setting the car on fire,
they spotted some men in police uniforms and fled the scene.
4. After this, PW-1 narrated the incident to PW-52 (Sub-Inspector)
and PW-56 (Deputy Superintendent of Police). A written complaint
filed by PW-1 led to the registration of the FIR mentioned above.
During the investigation, thirty-six persons were arraigned as accused.
Out of them, fifteen persons were dropped by the prosecution, and a
Criminal Appeal Nos. 1686-88 of 2023 Page 2 of 27
chargesheet was filed against twenty-one persons. PW-1 gave his no
objection to dropping the names of these fifteen persons. The
prosecution also relied upon fingerprints lifted from the Scorpio car,
which matched the fingerprints of Accused Nos. 2 and 3. PW-35, who
prepared the fingerprint report, was examined as a witness. PW-46,
who was a photographer and who took photographs of the
fingerprints, was also examined. The prosecution has also stated that
aruvals were recovered at the instance of Accused Nos. 2, 3, 4, 6 and
8. At the instance of Accused No. 5, a knife has been recovered. A
wooden log was recovered at the instance of Accused No. 11. The
prosecution has also placed reliance on paint flakes found in the
Scorpio car that matched with that of the truck.
5. The Trial Court examined fifty-eight witnesses, out of which the
material eye witnesses are PW-1(Krishnan) who is the informant, PW-2
(Loorthu Prabhu) who witnessed the incident with one Abdul
Rahman, and PW-9 (Nikila) who is the minor daughter of PW-1 and
sustained injuries.
6. Based on the evidence on record, the Trial Court vide judgment
dated 29th September 2015 convicted Accused Nos. 1 to 11 and
sentenced them to life imprisonment. The Trial Court acquitted
Accused Nos. 12 to 21 of all the charges. Against this judgment of the
Trial Court, Accused Nos. 1 to 11 filed an appeal against their
conviction before the High Court. The State and PW-1 also challenged
the acquittal of Accused Nos. 12 to 21. These appeals came to be
decided by the High Court vide the impugned judgment which
confirmed the findings of the Trial Court and dismissed all appeals.
Criminal Appeal Nos. 1686-88 of 2023 Page 3 of 27
SUBMISSIONS
7. The learned senior counsel appearing for the appellants submits
that the case of the prosecution is based on three eye witnesses,
namely PW-1, PW-2, and PW-9, all of which have material
contradictions and cannot be relied upon. He took us through the
depositions of PW-1 and contended that this was wholly unreliable as
it has material embellishments and exaggerations. While PW-1 claims
to have told PW-52 (Sub-Inspector) and PW-56 (Deputy
Superintendent of Police) about the incident at the scene of the
incident itself, no statement has been recorded by them. Instead, he,
along with an advocate and members of his political party, went with a
written complaint to the police station almost two hours after the
incident. The learned senior counsel contends that PW-1 has
exaggerated the incident and initially named thirty-six persons as
accused. Therefore, he said that he has no objection if the names of
fifteen accused persons are removed.
8. Regarding PW-2, the learned senior counsel for the appellants
submits that PW-2 is a chance witness who allegedly saw the incident
with one Abdul Rahman. This PW-2 emerged from thin air after 43
days from the date of the incident and Abdul Rahman has not even
been examined. Accordingly, an adverse inference has to be drawn
based on this. No test identification parade has been conducted either.
9. Regarding PW-9 who was 7 years and 11 months at the time of
the incident and was examined at the age of about 9 years, the
appellant contends that no preliminary questions were asked. In the
Criminal Appeal Nos. 1686-88 of 2023 Page 4 of 27
absence of voir dire examination, the appellant argues that no reliance
can be placed on her statement.
10. In relation to other corroborating evidence, the learned senior
counsel for the appellants has submitted that the fingerprint evidence
is unreliable as PW-46 who was the photographer had denied taking
the photos of the fingerprints and these photographs have not been
exhibited either. No Mazhar was prepared of the fingerprints appearing
in the car or while taking the fingerprints of the accused either. The
learned senior counsel for the appellants also submits that there are
contradictions in the recovery of weapons. No proper procedure was
followed while collecting the paint flakes on the car either as mazhar
was not prepared and no record was produced to show where the paint
flakes were picked up from and to whom it was handed over.
11. The learned Additional Advocate General appearing for the State
made a preliminary objection regarding the jurisdiction of this Court
to consider the evidence that was on record before the Trial Court and
the High Court. He made a distinction between the jurisdiction of this
Court under Article 136 of the Constitution of India and Article 134
which is the criminal appellate jurisdiction. The learned senior
counsel vehemently submitted that this Court while exercising
jurisdiction under Article 136 has to only consider whether the
findings recorded by the High Court or Trial Court suffers from any
manifest illegality or perversity and cannot reappreciate evidence. In
cases where there are concurrent findings of conviction such as the
present, the learned senior counsel submitted that this Court cannot
interfere with such findings by reappreciating evidence.
12. The learned senior counsel supported the findings of both the
Trial Court and the High Court and submitted that the appellants
Criminal Appeal Nos. 1686-88 of 2023 Page 5 of 27
have not been able to controvert any of these findings. He stated that
there is nothing to show that PW-1 was planted or was not present at
the scene of the incident. The presence of PW-1 is also established by
the statement of PW-9 and other witnesses. He submitted that there is
no embellishment or material contradictions in the testimony of PW-1.
The allegation of tutoring and making false allegations was rejected by
the Trial Court and the High Court. He has also explained the delay of
approximately 2 hours in registering the FIR by explaining the chain of
events after the incident.
13. On the argument that there was a delay in recording the
statement of PW-2, the learned senior counsel for the State contends
that PW-2 could not approach the police as he had witnessed a
gruesome attack by and against people he knew making his fear
justifiable. The conduct of a person who has witnessed such a
murderous assault can differ from person to person. As the statement
of PW-2 has been consistent, it cannot be disregarded only because of
the delay and because he knew PW-1 and his family. Further, it is not
necessary that adverse inference has to be drawn for not examining
Abdul Rahman as the totality of circumstances has to be seen.
The learned senior counsel submitted that the Trial Court and
14.
High Court found the testimony of PW-9 as reliable. The High Court
had made an observation that preliminary questions were put to PW-
9. Even if they were not put, it cannot be the sole reason for rejecting
the witness testimony of PW-9. He has also relied on corroborating
evidence such as the fingerprints of accused Nos. 2 and 3 being found
in the car, blood recovery from bikes of the accused, and the paint
flakes of the truck matching with the car. Accordingly, the learned
senior counsel submitted that there is no scope to interfere with the
Criminal Appeal Nos. 1686-88 of 2023 Page 6 of 27
concurrent findings of both the Trial Court and the High Court in the
limited jurisdiction that this Court has when hearing cases under
Article 136 of the Constitution of India.
CONSIDERATION
Consideration of material prosecution witnesses
15. The material prosecution witnesses are PW-1 (Krishnan) who is
the first informant and alleged eye-witness, PW-2 (Loorthu Prabhu)
and PW-9 (Nikila), a minor witness. Firstly, we deal with the evidence
of PW-1 (Krishnan). He stated that one of his brothers was working as
the Secretary of the District Student Group in the AIADMK party. PW-
1 (Krishnan) further deposed that the said brother was the deceased,
Kathiresan. His wife is Prema. Kathiresan and Prema had two
children, Prasanna and Nikila (PW-9). He stated that for 40 years, the
father of the accused No.1 (since deceased), was the Panchayat
President of Periyakannoor. After the demise of his father, accused
No.1 and thereafter, his wife became the President. PW-1’s wife
(Sathya) and accused No.1’s wife contested the election against each
other in the year 2011. PW-1’s wife was elected as the Panchayat
President. Kathiresan worked hard in the election of Sathya.
According to PW-1 (Krishnan), the accused No. 1 belonged to the
Communist Party. He has given a history of the dispute between his
family and the family of the accused.
th
16. He deposed about the incident that occurred on 14 November
2012 by stating that at about 6:30 pm, his brother Kathiresan, his son
Prasanna and daughter Nikila (PW-9) came by a Scorpio car which
was driven by his driver, Boominathan, to his village. He stated that
when he along with Kathiresan started for Sivagangai in the night at 9
Criminal Appeal Nos. 1686-88 of 2023 Page 7 of 27
pm, Kathiresan was sitting on the seat to the left of the driver, PW-1
was on the rear seat behind his brother and Nikila (PW-9) and
Prasanna were sitting on his right-hand side. He stated that at about
9:30 pm, an oncoming truck came towards the Scorpio car. To avoid a
collision, the driver turned the car to the left side but the truck grazed
the car. At that time, Kathiresan asked the driver to switch on the
lights inside the car. He saw accused No. 7 (Vijaykumar) getting out of
the truck with a 10-litre white can. At that time, 6 to 7 people got out
of the truck with weapons like aruval, knife and wooden log. Four
motorcycles came there. From the said motorcycles, accused No. 1
(Arjunan), accused No. 2 (Agniraj), accused No. 3 (Sathyaraj), accused
No. 4 (Paulpandi), accused No. 6 (Yoganathan), accused No. 9
(Kanthamalai), accused No. 10 (Ganesan), accused No. 13
(Muthukumar) and accused No. 17 (Bose), came there. Accused No.1
(Arjunan) shouted to cut the persons sitting inside the car and burn
them by pouring kerosene. At that time, accused Nos. 5 (Siva Kumar),
8 (Suresh @ Lenin Kumar),11 (Jayakumar), 14 (Kanagarajan) and 16
(Rajamani) also came with accused No.7 (Vijaykumar). Accused No.8
(Suresh @ Lenin Kumar) broke the car mirror and accused No.2
(Agniraj) smashed the windscreen of the car with the aruval in his
hand. When Kathiresan got out of the car, accused No.2 (Agniraj)
assaulted him with an aruval. By that time, PW-1 (Krishnan) had
gotten out of the car. Kathiresan told him to run away. He ran into
Karuvelam tree bush. He deposed that the accused No.3 (Sathyaraj)
hit the head of Prasanna, and he fell into the nearby stream. Accused
No.4 (Paulpandi) assaulted the driver of the car on his head with an
aruval.
17. Accused No. 5 (Sivakumar) stabbed and injured the driver
Boominathan with a knife. Accused No.6 (Yoganathan) pulled out
Criminal Appeal Nos. 1686-88 of 2023 Page 8 of 27
Nikila (PW-9) and assaulted her on her head with an aruval.
Thereafter, all the accused came together and assaulted Kathiresan,
his son and the driver. They poured kerosene, which was in the 10-
litre white colour can, around the car. At the time of setting the car on
fire, a van came from the other side. Accused No.3 (Sathyaraj) told the
driver of the Tata Magic van to go away. However, the van stopped and
two police men wearing uniforms got down of that van. The accused
who came by motorcycles went back by motorcycles, and others sat in
the truck of accused No.7 (Vijaykumar) and left. The witness stated
that he saw two police men coming, and after the accused left, he
came to the place of occurrence from the place where he was hiding in
the bush. The witness claimed that he had seen the occurrence
through the headlight of the car, the light inside the car and the light
of the truck. The witness stated that he received a call from his father.
At that time, the witness talked about the details of the incident to his
father. Thereafter, one person stopped his Maruti car, and he called
the telephone No. 108. The witness further stated that a bus came
there and 4 to 5 policemen got down from the bus. The policemen
enquired about the incident. These policemen informed the police
department. He stated that Kathiresan, his son Prasanna and his
driver died. Thereafter, the 108 van came. On his complaint, an FIR
was registered.
18. Now, we come to the cross-examination of the PW-1. In the
cross-examination, he stated that he was hiding in a bush during the
occurrence. He came out after the police had arrived. He stated that
when he went to the place of occurrence from the bush, the Deputy
Superintendent of Police (for short ‘the DSP’) had arrived at the place.
When he was crying, the DSP questioned him. He told the details to
the DSP. He was not sure whether the DSP recorded the information
Criminal Appeal Nos. 1686-88 of 2023 Page 9 of 27
given by him in writing. He stated that from the Superintendent of
Police to the higher police officers, all came to the place of occurrence.
He stated that he went to the hospital at 10:45 pm. In the hospital, the
doctors asked him about the incident. Though there were number of
police officials in the hospital, no one enquired with him about the
incident. He stated that he did not disclose anything to anyone. He
stated that he went to the Taluka Police Station from the hospital,
which is where he gave a complaint.
19. He admitted that when he gave the report for the first time, he
stated that 36 persons stood around the car by which they were
travelling. When his deceased brother got down from the car, he also
got down from the car. In further cross-examination, he stated that he
got down from the car and ran through the field and did not hide. He
stated that he did not tell that to the police. He stated that he did not
hide in the stream, he just ran across the stream and disappeared. He
stated that no one had an axe in their hand and they were carrying
rods. They did not attack anybody with the rods. They only attacked
the car with the aruval and rod.
20. The witness stated that he showed to the DSP, the place where
he was hiding. He accepted that it was dark at the time of the incident
and nothing could be seen without light. He stated that he saw the
incident with the help of the car light and other lights. Thereafter, he
stated that there were more than 20 persons who were attacking the
car by using aruvals, rods and wooden logs. The witness stated that
when he lifted the deceased Prasanna, there was blood all over his
head and body. He stated that his shirt and dhoti were fully stained in
blood when the police arrived. In the cross-examination, he again
claimed that he could see the incident from the place where he was
Criminal Appeal Nos. 1686-88 of 2023 Page 10 of 27
hiding. He stated that he did not remember whether he told in the
police enquiry that accused-Vijayakumar got down along with a
kerosene can.
21. A very lengthy cross-examination was done on political parties
such as AIADMK and Community Party. He admitted that he had no
objection for removal of persons named as accused by him earlier.
22. Then we come to the evidence of PW-2 (Loorthu Prabhu). At the
time of incident, one Abdul Rehman was with PW-2. It must be noted
here that the said Abdul Rehman has not been examined by the
prosecution. He stated that while he, along with Abdul Rehman, were
proceeding on a motorcycle on Ilayangudi road, deceased Kathiresan’s
car overtook them. Thereafter, a truck came towards the Scorpio car of
Kathiresan. However, the driver drove the car to the left-hand side to
avoid collision but the truck grazed the car. He stated that the accused
No. 7 (Vijaykumar) got down from the driver’s side of the truck and
came along with one white colour can. Seven or eight people jumped
along with him. Accused No. 8 (Suresh @ Lenin Kumar) came with
aruval and accused No. 11 (Jayakumar) came with a wooden log. The
witness stated that accused No. 1 (Arjunan), accused No. 2 (Agniraj),
accused No. 3 (Sathyaraj), accused No. 6 (Yoganathan), accused No. 9
(Karanthamalai), accused No. 10 (Ganesh) arrived along with accused
No. 4 (Paulpandi) and accused No. 5 (Sivakumar). They were carrying
aruvals and wooden logs. He stated that the headlights of the car were
on. He and Abdul Rehman disappeared behind a Tamarind tree. He
stated that accused No. 1 (Arjunan) showed to Kathiresan and set him
on fire by pouring kerosene. At that time, accused No. 8 (Suresh @
Lenin Kumar) smashed the side mirror of the car with the aruval in
his hand. Kathiresan got out of the car, at that time, accused No. 2
Criminal Appeal Nos. 1686-88 of 2023 Page 11 of 27
(Agniraj) assaulted deceased Kathiresan on his head with his aruval.
He said that “you have spoiled my life and you will die with it”. He
alleged that accused No. 3 (Sathyaraj) cut Kathiresan’s head with an
aruval. He alleged that accused No. 4 (Paulpandi) and accused No. 5
(Sivakumar) cut Boominathan’s head. Accused No. 5 (Sivakumar)
stabbed him in the right and left shoulders with the knife. Accused
No. 6 (Yoganathan) pulled PW-9 (Nikila) out of the car and assaulted
her on her head with an aruval. She fell down. Thereafter, accused No.
3 (Sathyaraj) and 7 (Vijayakumar) poured kerosene around Kathiresan
and his car. At that time, one Tata Magic van came. Acccused No. 8
(Suresh @ Lenin Kumar) and 9 (Karanthamali) told persons in the van
not to stop, otherwise, they would kill them. However, the van stopped
and policemen in uniform got down from the van and went to the place
of occurrence.
23. What is important to note is that next day, in the morning, he
dropped Abdul Rehman at his house, kept his motorcycle in his sister’s
house and left for Coimbatore. He stated that he came to know about
the incident when he saw it in the newspaper. He stated that he was
th
scared to tell anybody about the incident. He stated that on 24
December, 2012, he came to the village for Christmas. After hearing a
th
sermon, he went to CBCID office at Madurai on 26 December, 2012
and told the truth. So, for 1 month and 12 days, witness did not
inform the police about the incident. All this has come in the
examination-in-chief of the witness.
24. In the cross-examination, he admitted that after the occurrence,
he went to his house directly with his friend. When he went to his
house, his father was there. On the next day, he left his house at 5 am
or 6 am. Thereafter, he came to his friend’s place in Sivagangai. Thus,
Criminal Appeal Nos. 1686-88 of 2023 Page 12 of 27
there is a gross delay on the part of the police in recording statement
of PW-2 (Loorthu Prabhu). There is no explanation for this delay.
25. Now, we come to the evidence of PW-9 (Nikila). The law is well
settled that before proceeding to record the evidence of a minor
witness, preliminary questions must be asked by the Court to
ascertain whether the witness is able to understand the questions and
answer the same. The Court must be satisfied about the capacity of
the minor to understand the questions and answer the same. In this
case, the age of PW-9 (Nikila) was 10 years. However, preliminary
questions were not put to the witness. The Court did not ask any
question to the witness to ascertain whether she understands the
importance of an oath. Without satisfying himself that the witness
understands the importance of an oath, the learned Trial Judge
administered oath to her. It is very well known that child witnesses are
susceptible to tutoring and therefore, not asking preliminary questions
to the minor witness makes her evidence very vulnerable.
26. The witness states that she was able to identify the persons who
attacked them on that day. She stated that she had not identified the
persons earlier whom she was now identifying in the Court. The
witness identified some of the accused sitting in the Court. She stated
that she was seeing them for the first time after the date of the
incident. Admittedly, test identification parade was not conducted. She
stated that her mother told her in detail what had happened to her
and how many days she was in the hospital.
27. As noted earlier, PW-9 (Nikila) was 10 years old on the date of
recording of evidence. The Trial Court has not followed the condition
precedent before examining a minor witness. Before administering
Criminal Appeal Nos. 1686-88 of 2023 Page 13 of 27
oath, the learned Trial Judge did not satisfy himself that the witness
understood the importance of the oath.
28. Moreover, she deposed that after the date of occurrence, for the
first time in the Court, she identified several accused. But test
identification parade was not held. From the answers given in the
cross-examination that her mother told her the details of what
happened to her, the possibility of tutoring the witness cannot be
ruled out. Minors are prone to tutoring and in this case, we are
dealing with a minor child who was 10 years old.
In the evidence of PW-1, it is brought on record that accused No.
29.
1’s wife was defeated by PW-1’s wife (Sathya) in the local panchayat
election. Accused No. 1 belongs to the Communist Party of India and
PW-1’s wife (Sathya) was a member of the AIADMK political party.
Though the DSP and other police officers met PW-1 (Krishnan) at the
scene of the offence, they did not record his statement. It has come on
record that PW-1 (Krishnan) did not directly go to the police station to
record his complaint. Instead, PW-1 (Krishnan) along with an advocate
(Thangapandiyan), PW-14 (Anbumani, AIADMK Counsellor) and PW-
15 (Nickson Anand, AIADMK Secretary) went to the police station and
handed over a written complaint to PW-52. There was a political
rivalry between him and accused No. 1. PW-1’s wife was a member of
AIADMK. The possibility of filing complaint after deliberation with the
supporters of AIADMK cannot be ruled out. In the written complain,
PW-1 (Krishnan) named 22 persons as accused. During investigation,
36 persons were treated as accused, out of which, only 21 persons
were charged. By a report at Exhibit P-107, 15 accused persons were
dropped with the consent of PW-1 (Krishnan). The reason given in the
report is that PW-1 (Krishnan) was nervous and hence, he exaggerated
Criminal Appeal Nos. 1686-88 of 2023 Page 14 of 27
the incident by naming the said 15 accused. He gave no objection for
deletion of 15 accused. PW-1 (Krishnan) admitted that, in his report,
he stated that 36 persons stood around the Scorpio car. Then he came
out with the theory that there were 20 persons. PW-1 (Krishnan) has
obviously exaggerated the incident due to their political rivalry. It is
obvious that he was unsure about the number of accused who were
present at the time of the incident. Out of the 21 accused who were
ultimately charged, accused Nos. 1 to 11 were convicted and other
accused were acquitted. The incident happened after 09:30 pm. PW-1
(Krishnan) has not stated the distance between the bush in which he
was hiding and the spot of the incident. There is a serious doubt
whether he could have seen the incident in the light of the car.
Therefore, the evidence of PW-1 (Krishnan) does not inspire
confidence.
30. As far as PW-2 (Loorthu Prabhu) is concerned, for more than one
and a half months, he did not approach the police or filed a complaint
in any form. He claims to have become wise after a gap of 43 days after
hearing a sermon during Christmas. Considering the conduct of the
witness of remaining silent for a long period of one and a half months,
the testimony of this witness cannot be believed. Moreover, during this
period, he moved from place to place. It is not his case that anyone
threatened him during the said period. Moreover, he stated that one
Abdul Rehman was an eye-witness. However, the prosecution failed to
examine him. Therefore, adverse inference will have to be drawn
against the prosecution.
31. As far as PW-9 (Nikila) is concerned, we have already recorded
reasons for discarding her testimony. Since the condition precedent for
Criminal Appeal Nos. 1686-88 of 2023 Page 15 of 27
recording of statement of PW-9 (Nikila) for evidence has not been
satisfied, her testimony has to be kept out of consideration.
Consideration of other materials on record
32. The prosecution has heavily relied upon the evidence of
fingerprints of accused No. 2 (Agniraj) and accused No. 3 (Sathyaraj)
found on the Scorpio car. PW- 46 (Prithiviraj) is a photographer who
allegedly took photographs of the fingerprints. What is important is
that no Mahazar was drawn at the time of taking photographs of the
fingerprints allegedly appearing on the Scorpio car. Moreover, the
photographs taken were not exhibited. Similarly, no Mahazar was
recorded while taking the fingerprints of the accused. The case of the
prosecution is that the fingerprints found on Scorpio car matched the
specimen fingerprints of accused Nos. 2 (Agniraj) and 3 (Sathyaraj).
This fact becomes relevant only if the fact of taking photographs of
fingerprints on the Scorpio car is proved. PW-46 (Prithviraj) stated that
he took photographs of the fingerprints on the Scorpio car. In the
cross-examination, he stated that he did not remember whether he
had taken photos of fingerprints like that earlier. His examination-in-
chief is silent about any Mahazar drawn at the time of taking
photographs of the fingerprints on the car. The failure of the
prosecution to draw a Mahazar or Panchnama at the time of taking
photographs of the fingerprints on the car goes to the root of the
matter. The case made out by the prosecution cannot be accepted for
the reasons recorded above.
33. Then we come to the evidence of recovery. According to the
prosecution, aruvals were recovered at the instance of accused Nos. 2
(Agniraj), 3 (Sathyaraj) and 6 (Yoganathan) from the bush near the
Criminal Appeal Nos. 1686-88 of 2023 Page 16 of 27
shutter of Periya Ooran in Athapadaki village. The recovery is shown
th
from the same place on 5 December, 2012 at three different times.
Even recovery of aruval at the instance of accused No. 4 (Paulpandi)
and recovery of knife at the instance of accused No. 5 (Sivakumar) was
th
at two different times on 10 December, 2012 from the same place
which is a thorny bush under the bridge on the way to EID Parry
Company. A wooden log was recovered at the instance of accused No.
11 (Jayakumar) from the bush opposite to Government Arts College
which is an open place. Aruval was shown recovered at the instance of
accused No. 8 (Suresh @ Lenin Kumar) from bushes in a dilapidated
building opposite to Government hostel for college students.
34. The evidence of PW-2 (Loorthu Prabhu) and PW-9 (Nikila) is
required to be discarded for the reasons which were set out above. We
have also found that the evidence of PW-1 is not trustworthy. In any
case, the conviction cannot be supported only on the basis of his
evidence.
35. We have perused the judgments of the Trial Court and the High
Court. We found that both the courts have completely brushed aside
the factors which we have highlighted above from the evidence which
make it impossible for any Court to believe the testimonies of these
three witnesses and act upon the same. According to us, if evidence of
PW-1 (Krishnan), PW-2 (Loorthu Prabhu) and PW-9 (Nikila) and
fingerprints allegedly found are to be ignored, what remains is the
evidence of the alleged recovery of weapons at the instance of the
accused. Only on the basis of recovery, by no stretch of imagination
can the accused be convicted.
Criminal Appeal Nos. 1686-88 of 2023 Page 17 of 27
Scope of Appellate Jurisdiction of this Court under Article 136 of
the Constitution
36. Learned counsel appearing for the State tried to make a
distinction between appellate jurisdiction in criminal matters of this
Court under Article 134 and jurisdiction under Article 136. He mainly
relied upon the decisions of this court in the case of Pappu v. State
1
of Uttar Pradesh and Mst Dalbir Kaur and Others v. State of
2
. He submitted that these two decisions dealing with the scope
Punjab
of appellate jurisdiction of this Court under Article 136 of the
Constitution have been consistently followed.
In paragraphs 63 and 71 of the decision of this Court in the case
37.
1
of it was held thus:
Pappu v. State of Uttar Pradesh
“
The scope and width of these appeals
63. As could be readily noticed, in the wide range of
submissions made on behalf of the appellant, the
concurrent findings leading to his conviction have
been challenged as if it were a matter of regular
appeal; and are practically to the effect that the
entire evidence led in the matter be reappreciated on
its contents as also its surrounding factors. However,
while entering into the process of analysis, we
cannot lose sight of the fact that the present one is a
matter of concurrent findings of fact by the trial
court and the High Court. Though the periphery of
an appeal by special leave under Article 136 of the
Constitution of India and the parameters of
examining the matters in such appeals have been
laid down repeatedly by this Court in several of the
decisions but, having regard to the submissions
made in this case, we feel rather impelled to
recapitulate the nuanced principles, particularly on
1 (2022) 10 SCC 321
2 (1976) 4 SCC 158
Criminal Appeal Nos. 1686-88 of 2023 Page 18 of 27
the subtle but relevant distinction in the scope of a
regular appeal and an appeal by special leave.
71. In summation of what has been noticed
hereinabove, it is but clear that as against any
judgment/final order or sentence in a criminal
proceeding of the High Court, regular appeals to this
Court are envisaged in relation to the eventualities
specified in Article 134 of the Constitution of India
and Section 2 of the 1970 Act. The present one is
not a matter covered thereunder and the present
appeals are by special leave in terms of Article 136 of
the Constitution of India. In such an appeal by
special leave, where the trial court and the High
Court have concurrently returned the findings of fact
after appreciation of evidence, each and every
finding of fact cannot be contested nor such an
appeal could be dealt with as if another forum for
reappreciation of evidence. Of course, if the
assessment by the trial court and the High Court
could be said to be vitiated by any error of law or
procedure or misreading of evidence or in disregard
to the norms of judicial process leading to serious
prejudice or injustice, this Court may, and in
appropriate cases would, interfere in order to prevent
grave or serious miscarriage of justice but, such a
course is adopted only in rare and exceptional cases
of manifest illegality. Tersely put, it is not a matter of
regular appeal. This Court would not interfere with
the concurrent findings of fact based on pure
appreciation of evidence nor it is the scope of these
appeals that this Court would enter into
reappreciation of evidence so as to take a view
different than that taken by the trial court and
approved by the High Court.”
37.1 In appropriate cases, this Court can interfere with the
concurrent findings of the Courts when the assessment of evidence is
vitiated by misreading of the evidence. However, this should be done in
rare and exceptional cases of manifest illegality.
Criminal Appeal Nos. 1686-88 of 2023 Page 19 of 27
2
38. In the case of ,
Mst Dalbir Kaur and Others v. State of Punjab
in paragraphs 2, 3 and 8, this Court held thus:
“2. Two questions arise in these appeals:
“( 1 ) Can this Court in a criminal appeal by special
leave enter into a fresh review or reappraisement of
the evidence and examine the question of credibility
of witnesses where the two courts have concurrently
found that the prosecution case against the
appellants has been proved; and
( 2 ) Is it open to the appellants, once special leave is
granted, to argue on questions of fact at the hearing,
or is he required to confine his arguments only to the
points on which special leave could be granted.”
Not that these points are not covered by authorities
but in spite of a catena of decisions of this Court
laying down the various principles from time to time
over two decades and a half, counsel for the parties
have been insisting upon this Court to go into the
questions of fact in order to examine whether the
judgment of the High Court is correct. I would,
therefore, like to review the decisions of this Court on
the two points mentioned above so as to clarify the
position and settle the controversy once for all.
3. As to the principles on which special leave is
granted by this Court, the same have been clearly and
explicitly enunciated in a large number of decisions of
this Court. It has been pointed out that the Supreme
Court is not an ordinary court of criminal appeal and
does not interfere on pure questions of fact. It is only
in very special cases where the court is satisfied that
the High Court has committed an error of law or
procedure as a result of which there has been a
serious miscarriage of justice that the court would
interfere with the concurrent findings of the High
Court and the trial court. It has also been pointed out
by this Court more than once that it is not in the
province of this Court to reappraise the evidence and
Criminal Appeal Nos. 1686-88 of 2023 Page 20 of 27
to go into the question of credibility of the witnesses
examined by the parties, particularly when the courts
below have after considering the evidence, given their
findings thereon. In other words, the assessment of
the evidence by the High Court would be taken by
this Court as final, unless it is vitiated by any error of
law or procedure, by the principles of natural justice,
by errors of record or misreading of evidence, non-
consideration of glaring inconsistencies in the
evidence which demolish the prosecution case or
where the conclusion of the High Court is manifestly
perverse and unsupportable and the like. As early as
1950 this Court in Pritam Singh v. State [1950 SCC
189 : AIR 1950 SC 169 : 1950 SCR 453 : 51 Cri LJ
1270] speaking through Fazal Ali, J. (as he then was)
observed as follows:
“The obvious reply to all these arguments advanced
by the learned counsel for the appellant, is that this
Court is not an ordinary court of criminal appeal and
will not, generally speaking, allow facts to be
reopened, especially when two courts agree in their
conclusion in regard to them and when the
conclusions of fact which are challenged are
dependent on the credibility of witnesses who have
been believed by the trial court which had the
advantage of seeing them and hearing their evidence.
In arguing the appeal, Mr Sethi proceeded on the
assumption that once an appeal had been admitted
by special leave, the entire case was at large and the
appellant was free to contest all the findings of fact
and raise every point which could be raised in the
High Court or the trial court. This assumption is, in
our opinion, entirely unwarranted.
The rule laid down by the Privy Council is based on
sound principle, and, in our opinion, only those
points can be urged at the final hearing of the appeal
which are fit to be urged at the preliminary stage
when leave to appeal is asked for, and it would be
Criminal Appeal Nos. 1686-88 of 2023 Page 21 of 27
illogical to adopt different standards at two different
stages of the same case.
On a careful examination of Article 136 along with
the preceding article, it seems clear that the wide
discretionary power with which this Court is invested
under it is to be exercised sparingly and in
exceptional cases only....
Generally speaking, this Court will not grant special
leave, unless it is shown that exceptional and special
circumstances exist, that substantial and grave
injustice has been done and that the case in question
presents features of sufficient gravity to warrant a
review of the decision appealed against.”
Analysing this decision, two principles appear to have
been clearly laid down by this Court:
“( 1 ) that in appeals by special leave against the
concurrent findings of the courts below, this Court
would not go into the credibility of the evidence and
would interfere only when exceptional and special
circumstances exist which result in substantial and
grave injustice having been done to the accused; and
( 2 ) that even after special leave has been granted the
appellant is not free to contest all the findings of fact,
but his arguments would be limited only to those
points even at the final hearing, which could be urged
at the stage when the special leave to appeal is asked
for.”
This case was followed by another Bench decision of
this Court a little later in Mohinder
Singh v. State [1950 SCC 673 : AIR 1953 SC 415 :
1950 SCR 821] where this Court observed thus:
“This Court, as was pointed out in Pritam
Singh v. State [1950 SCC 189 : AIR 1950 SC 169 :
1950 SCR 453 : 51 Cri LJ 1270] will not entertain a
criminal appeal except in special and exceptional
cases where it is manifest that by a disregard of the
forms of legal process or by a violation of the
Criminal Appeal Nos. 1686-88 of 2023 Page 22 of 27
principles of natural justice or otherwise substantial
and grave injustice has been done.”
In Hem Raj v. State of Ajmer [AIR 1954 SC 462 :1954
SCR 1133 : 1954 Cri LJ 1313] the same principle was
reiterated by Mahajan, C.J., speaking for the Court,
where it was observed thus:
“Unless it is shown that exceptional and special
circumstances exist that substantial and grave
injustice has been done and the case in question
presents features of sufficient gravity to warrant a
review of the decision appealed against, this Court
does not exercise its overriding powers under Article
136(1) of the Constitution and the circumstance that
because the appeal has been admitted by special
leave does not entitle the appellant to open out the
whole case and contest all the findings of fact and
raise every point which could be raised in the High
Court. Even at the final hearing only those points can
be urged which are fit to be urged at the preliminary
stage when the leave to appeal is asked for.”
In Khacheru Singh v. State of Uttar Pradesh [AIR 1956
SC 546 : 1956 Cri LJ 950] it was pointed out that this
Court does not interfere with the findings of fact
arrived at by the courts below, unless something
substantial has been shown to persuade this Court to
go behind the findings of fact. Imam, J., who spoke for
the Court observed as follows:
“In an appeal by way of special leave this Court
usually does not interfere with the findings of fact
arrived at by the courts below and nothing
substantial has been shown to persuade us to go
behind the findings of fact arrived at by them.”
In Saravanabhavan v. State of Madras [AIR 1966 SC
1273 : 1966 Cri LJ 949] Hidayatullah, J., (as he then
was) speaking for the majority crystallised and
reiterated the principles already laid down by this
Court on previous occasions and observed as follows:
Criminal Appeal Nos. 1686-88 of 2023 Page 23 of 27
“No doubt this Court has granted special leave to the
appellants but the question is one of the principles
which this Court will ordinarily follow in such an
appeal. It has been ruled in many cases before that
this Court will not reassess the evidence at large,
particularly when it has been concurrently accepted
by the High Court and the court or courts below. In
other words this Court does not form a fresh opinion
as to the innocence or the guilt of the accused. It
accepts the appraisal of the evidence in the High
Court and the court or courts below. Therefore, before
this Court interferes something more must be shown,
such as, that there has been in the trial a violation of
the principles of natural justice or a deprivation of the
rights of the accused or a misreading of vital evidence
or an improper reception or rejection of evidence
which, if discarded or received, would leave the
conviction unsupportable, or that the court or courts
have committed an error of law or of the forms of legal
process or procedure by which justice itself has failed.
We have, in approaching this case, borne these
principles in mind. They are the principles for the
exercise of jurisdiction in criminal cases, which this
Court brings before itself by a grant of special leave.”
The minority judgment in the same case by Wanchoo,
J., (as he then was), so far as the question of
interference by this Court was concerned, also took
more or less the same view and observed as follows:
“Ordinarily, this Court does not go into the evidence
when dealing with appeals under Article 136 of the
Constitution particularly when there are concurrent
findings. This does not mean that this Court will in
no case interfere with a concurrent finding of fact in a
criminal appeal; it only means that this Court will not
so interfere in the absence of special circumstances.
One such circumstance is where there is an error of
law vitiating the finding as, for example, where the
conviction is based on the testimony of an accomplice
without first considering the question whether the
accomplice is a reliable witness. Another
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circumstance is where the conclusion reached by the
courts below is so patently opposed to well
established principles of judicial approach, that it can
be characterised as wholly unjustified or perverse.”
The only difference between the two views was that
while the majority view was that except for the
principles mentioned above the Supreme Court could
never interfere with the concurrent findings of fact in
a criminal appeal, the minority view agreed with the
principles but it held that in view of special
circumstances as pointed out in the observations
quoted above the Court could interfere. At any rate,
according to both the views the ratio is that this
Court would not normally interfere with the
concurrent findings of fact, unless there are special
circumstances justifying interference.
8. Thus, the principles governing interference by this
Court in a criminal appeal by special leave may be
summarised as follows:
“( 1 ) that this Court would not interfere with the
concurrent finding of fact based on pure appreciation
of evidence even if it were to take a different view on
the evidence;
(2) that the Court will not normally enter into a
reappraisement or review of the evidence, unless the
assessment of the High Court is vitiated by an error of
law or procedure or is based on error of record,
misreading of evidence or is inconsistent with the
evidence, for instance, where the ocular evidence is
totally inconsistent with the medical evidence and so
on;
( 3 ) that the Court would not enter into credibility of
the evidence with a view to substitute its own opinion
for that of the High Court;
( 4 ) that the Court would interfere where the High
Court has arrived at a finding of fact in disregard of a
judicial process, principles of natural justice or a fair
hearing or has acted in violation of a mandatory
Criminal Appeal Nos. 1686-88 of 2023 Page 25 of 27
provision of law or procedure resulting in serious
prejudice or injustice to the accused;
( 5 ) this Court might also interfere where on the
proved facts wrong inferences of law have been drawn
or where the conclusions of the High Court are
manifestly perverse and based on no evidence.”
It is very difficult to lay down a rule of universal
application, but the principles mentioned above and
those adumbrated in the authorities of this Court
cited supra provide sufficient guidelines for this Court
to decide criminal appeals by special leave.
Thus, in a
criminal appeal by special leave, this Court at the
hearing examines the evidence and the judgment
of the High Court with the limited purpose of
determining whether or not the High Court has
followed the principles enunciated above. Where
the Court finds that the High Court has
committed no violation of the various principles
laid down by this Court and has made a correct
approach and has not ignored or overlooked
striking features in the evidence which demolish
the prosecution case, the findings of fact arrived
at by the High Court on an appreciation of the
evidence in the circumstances of the case would
not be disturbed .”
(emphasis added)
38.1 This decision refers to the requirement of this Court examining
the evidence and judgment of the High Court. It lays down that if this
Court finds that High Court has overlooked striking features in the
evidence which demolish the prosecution’s case, a finding of fact
recorded can be disturbed by this Court.
39. None of these decisions prevent this Court from reappreciating
evidence in a criminal appeal arising out of Article 136 of the
Constitution against an order of conviction. Without appreciating the
evidence, this Court cannot decide whether the case is within the
Criminal Appeal Nos. 1686-88 of 2023 Page 26 of 27
parameters laid down in the aforesaid decisions. These decisions only
lay down the self-imposed constraints on interference with the
concurrent findings of the fact recorded by the Trial Court and the
High Court.
40. In this case, the analysis of the evidence of material witnesses
made by us shows that the Trial Court and High Court have misread
the evidence of these material prosecution witnesses. Very striking
features of the prosecution’s case and evidence have been ignored by
the Courts.
Therefore, in this case, interference will have to be made with the
41.
impugned judgments. We are of the view that the guilt of the accused
has not been proved beyond a reasonable doubt. All the appellants
have undergone sentence for more than 9 years and 4 months.
42. Hence, the appeals are allowed. The impugned Judgments of the
High Court and the Trial Court are hereby set aside and the
appellants are acquitted of the offences alleged against them. They
shall be released from custody forthwith, if not required in any other
case.
..…………………...J.
(Abhay S. Oka)
..…………………...J.
(Ujjal Bhuyan)
New Delhi;
May 23, 2025
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