REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2016 OF 2013

MEKALA SIVAIAH … APPELLANT (S)

VERSUS

THE STATE OF ANDHRA PRADESH … RESPONDENT (S)

JUDGMENT

KRISHNA MURARI, J.

1. The appellant has filed the present appeal against the judgment and order

dated 22.06.2012 passed by the High Court of Judicature of Andhra Pradesh at

Hyderabad (hereinafter referred to as ‘High Court’) in Criminal Appeal

No.811/2008, whereby the High Court has dismissed the criminal appeal and

upheld the judgment dated 04.04.2008 passed by the Court of Sessions Judge at

Guntur (hereinafter referred to as ‘Trial Court) whereunder, the appellant was

convicted for the offence under Section 302 of Indian Penal Code, 1860

(hereinafter referred to as ‘IPC’) and was sentenced to undergo imprisonment

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for life and also to pay a fine of Rs. 500/- and in default to suffer simple

imprisonment for three months.

2.Briefly, the facts relevant for the purpose of this appeal are as follows:

On 06.09.2006, the deceased (father of PW-1) and PW-1 went to the 14

th

mile centre of Lemalle Village to sell their vegetables. While PW-1 was

getting the vegetables weighed, the deceased crossed the road and went to

the shop of PW-3 to purchase tobacco leaves. PW-2 and PW-4 were also

present at the place of occurrence. Having seen the deceased, the

appellant, armed with a knife, came to the shop of PW-3 and sprinkled

chilli powder into the eyes of the deceased, and stabbed him on the chest

and abdomen, resulting in grievous injuries. The appellant immediately

fled from the spot after seeing PW-1 to 4. The deceased was taken to the

Government Hospital Amaravathi, where the doctors declared him dead.

3.On the basis of the aforesaid report given by PW-1, PW-7 registered the

case being FIR No. 120/2006 dated 06.09.2006 at PS Amaravathi for the

offence punishable under Section 302 IPC. Thereafter, PW-8 and PW-9 visited

the place of occurrence, held an inquest over the dead body of the deceased,

examined the eyewitnesses, arrested the appellant, and filed charge sheet against

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him. On 26.12.2007, charges under Section 302 IPC were framed and the

appellant pleaded not guilty and claimed trial.

4.In order to substantiate the case, the prosecution examined nine witnesses

and there was no oral or documentary evidence adduced by the defence side.

PW-1: Madhirapalli Srinivasa Rao, Son of the deceased

PW-2: Shaik China John

PW-3: Shaik Subhani, owner of the tobacco shop

PW-4: Kovvuri Venkateswara Rao, belong to the same village as

the deceased.

PW-5: Dr. G. Peter Paul, who conducted post-mortem on

07.09.2006.

PW-6: Kalapala Venkaiah, Panchayat Secretary of Endrol Village.

PW-7: I. Govindarajulu, Sub-Inspector of Police, District Crime

Records Bureau.

PW-8: T. Ravindra Babu, Inspector of Police.

PW-9: K. Jagadishwara Reddy, Circle Inspector of Police.

5.The Trial Court after analysing the statement made by the prosecution

witnesses, vide judgment and order dated 04.04.2008 held the appellant guilty

of offence under Section 302 IPC and sentenced him to imprisonment for life.

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6.Being aggrieved, the appellant filed Criminal Appeal No. 811 of 2008

before the High Court challenging the Trial Court’s order of conviction and

sentencing. Vide judgment and order dated 22.06.2012, the High Court

confirmed the judgment of the Trial Court and observed that there is no iota of

doubt in the case of the prosecution and therefore, the prosecution has

discharged its burden in proving the guilt of the accused for the offence under

Section 302 IPC beyond a reasonable doubt.

7.We have heard Mr. Ravindra S. Garia, Learned Counsel appearing for the

appellant and Mr. Mahfooz A. Nazki, Learned Counsel appearing for the State.

8.Mr. Ravindra S. Garia, Learned Counsel appearing for the appellant

vehemently submitted that the weapon(knife) alleged to have been used by the

appellant in the commission of the offence was not seized by the police and

non-seizure of the said weapon is fatal to the case of the prosecution. It was

further submitted that the prosecution failed to examine the scribe of the FIR

and that there was a delay in sending the FIR to the court.

9.It was further submitted that the presence of eyewitnesses in the place of

occurrence is very doubtful and incredible in the circumstances and becomes

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further incredible as none of the so-called eyewitnesses is even able to describe

the weapon of the offence, despite the prosecution case being that the appellant

was apprehended by the crowd but still he managed to run away. It was further

submitted that the inquest report clearly shows that the alleged eyewitnesses

merely expressed their doubt with respect to the appellant that, due to previous

enmity the appellant might have killed the victim and this shows they only had a

suspicion and were not witnesses to the incident.

10. It was further submitted that the falsity of the prosecution case and the

theory of the appellant running away in the backdrop of his receiving treatment

for such serious injury in his leg that he had become invalid for doing labour

work and was receiving treatment for the immediately preceding last six months

further makes the case against the appellant extremely doubtful.

11.Per contra, Mr. Mahfooz A. Nazki, Learned Counsel for the Respondent

State has duly supported the conviction and sentencing of the Appellant with

reference to the material on record and as regards the conviction of the

Appellant, it was submitted that the judgment passed by the Trial Court and the

High Court after thorough appreciation of the evidence does not suffer from any

infirmity and call for no interference. There are no grounds made for reversal of

the conviction.

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12.It was further submitted that the conviction of the Appellant in the present

case is based on the testimony of four eye-witnesses and the same is absolutely

consistent and reliable.

13.We have carefully considered the submissions made at the bar and

perused the materials placed on record.

14.Before adverting to the merits of the contention raised, it is important to

reiterate that Article 136 of the Constitution of India is an extraordinary

jurisdiction which this Court exercises when it entertains an appeal by special

leave and this jurisdiction, by its very nature, is exercisable only when this

Court is satisfied that it is necessary to interfere in order to prevent grave or

serious miscarriage of justice.

15. It is well settled by judicial pronouncement that Article 136 is worded in

wide terms and powers conferred under the said Article is not hedged by any

technical hurdles. This overriding and exceptional power is, however, to be

exercised sparingly and only in furtherance of cause of justice. Thus, when the

judgment under appeal has resulted in grave miscarriage of justice by some

misapprehension or misreading of evidence or by ignoring material evidence

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then this Court is not only empowered but is well expected to interfere to

promote the cause of justice.

16.It is not the practice of this Court to re-appreciate the evidence for the

purpose of examining whether the finding of fact concurrently arrived at by the

Trial Court and the High Court are correct or not. It is only in rare and

exceptional cases where there is some manifest illegality or grave and serious

miscarriage of justice on account of misreading or ignoring material evidence,

that this Court would interfere with such finding of fact.

17.Reference may be made to the judgment of two-Judge Bench of this

Court in the case of Subedar Vs. The State of U.P.

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wherein this Court, while

considering the scope of interference with the concurrent findings based on a

proper appreciation of evidence, has observed as under :-

“This Court undoubtedly does not normally proceed to

review and reappraise for itself the evidence in criminal

cases when hearing appeals under Article 136. But when

the judgment under appeal has resulted in grave

miscarriage of justice by some misapprehension or mistake

in the reading of evidence or by ignoring material

evidence- then this Court is not only empowered but is

expected to interfere to promote the cause of justice.”

1 (1970) 2 SCC 445

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18.In Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat

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, a two-Judge

Bench of this Court held that this Court does not interfere with the concurrent

findings of fact unless it is established:

i.That the finding is based on no evidence; or

ii.That the finding is perverse, it being such as no reasonable person

could arrive at even if the evidence was taken at its face value; or

iii.The finding is based and built on inadmissible evidence which

evidence, excluded from vision would negate the prosecution case

or substantially discredit or impair it, or

iv.Some vital piece of evidence which would tilt the balance in favour

of the convict has been overlooked, disregarded or wrongly

discarded.

This Court does not function as a regular Court of Appeal in every

criminal case. Normally, the High Court is a final court of appeal and

this Court is only a court of special jurisdiction. This Court would not

therefore reappraise the evidence to determine the correctness of

findings unless there are exceptional circumstances where there is

manifest illegality or grave and serious miscarriage of justice, for

example, the forms of legal process are disregarded or principles of

natural justice are violated or substantial and grave injustice has

otherwise resulted.

2 (1983) 3 SCC 217

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19.The principles governing the interference by this Court in a criminal

appeal by way of special leave were further enumerated in Dalbir Kaur & Ors.

Vs. State of Punjab

3

as under :-

“(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 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.”

20.The scope and width of appeals under Article 136 has been elaborately

articulated by a three-Judge Bench of this Court in Pappu Vs. State of Uttar

Pradesh

4

. This judgment authored by one of us (Hon’ble Dinesh Maheshwari, J.)

3 (1976) 4 SCC 158

4 2022 SCC OnLine SC 176

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after noticing catena of judgments on the issue, the three-Judge Bench

summarized the principles as under :-

“101. 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 Act of 1970. 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.”

21.Coming to the facts of present case at hand, the deceased was an

agriculturalist and on 14.03.2006, during a quarrel between PW-1 and the

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appellant, PW-1 gave a beating to the appellant with a stick. Thereupon, the

appellant gave a report against PW-1 in Amaravathi police station and the same

was registered as Crime No. 35 of 2006 for the offence punishable under

Section 324 and 506 of IPC. After completion of investigation, the police filed

charge sheet against PW-1 and the same is pending. In that connection, the

appellant demanded money from PW-1 for treatment of his knee to which both

the deceased as well as PW-1 agreed for payment but on a later date, the

deceased as well as PW-1 refused to pay the appellant. Due to inability to get a

treatment, the appellant became invalid from labour work and that resulted in

appellant developing a grudge against PW-1 and his father(deceased).

Thereafter, on seeing the deceased coming towards the tobacco shop of PW-3

on 06.09.2006, the appellant stabbed him on the chest and abdomen causing

grievous injuries to him which ultimately lead to the death of the deceased.

22.The contentions raised by the Appellant are on the weaker side in relation

to testimonies of prosecution witnesses as it has been contended that PW-1 to

PW-4 are the supporters of Telugu Desam Party and their evidence were

contradictory with respect to the nature of injuries inflicted upon the deceased,

place of occurrence etc. The testimony of a witness in a criminal trial cannot be

discarded merely because of minor contradictions or omission as observed by

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this Court in Narayan Chetanram Chaudhary & Anr. Vs. State of

Maharashtra

5

, wherein while considering the issue of contradictions in the

testimony, while appreciating the evidence in a criminal trial, it was held that

only contradictions in material particulars and not minor contradictions can be a

ground to discredit the testimony of the witnesses. In paragraph 42 of the

judgment, it has been held as under :-

“42. Only such omissions which amount to contradiction in

material particulars can be used to discredit the testimony of

the witness. The omission in the police statement by itself

would not necessarily render the testimony of witness

unreliable. When the version given by the witness in the

court is different in material particulars from that disclosed

in his earlier statements, the case of the prosecution

becomes doubtful and not otherwise. Minor contradictions

are bound to appear in the statements of truthful witnesses

as memory sometimes plays false and the sense of

observation differ from person to person. The omissions in

the earlier statement if found to be of trivial details, as in the

present case, the same would not cause any dent in the

testimony of PW 2. Even if there is contradiction of

statement of a witness on any material point, that is no

ground to reject the whole of the testimony of such witness.”

23.The same view stands reiterated in the concurring opinion expressed by

this Court in State of MP Vs. Ramesh

6

.

5 (2000) 8 SCC 457

6 (2011) 4 SCC 786

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24.The facts and evidence in present case has been squarely analyzed by

both Trial Court as well the High Court and the same can be summarized as

follows:

i.The prosecution has discharged its duties in proving the guilt of the

appellant for the offence under Section 302 IPC beyond reasonable

doubt.

ii.When there is ample ocular evidence corroborated by medical

evidence, mere non-recovery of weapon from the appellant would not

materially affect the case of the prosecution.

iii.If the testimony of an eye witness is otherwise found trustworthy and

reliable, the same cannot be disbelieved and rejected merely because

certain insignificant, normal or natural contradictions have appeared

into his testimony.

iv.The deceased has been attacked by the appellant in broad daylight and

there is direct evidence available to prove the same and the motive

behind the attack is also apparent considering there was previous

enmity between the appellant and PW-1.

25.Having considered the aforesaid facts of the present case in juxtaposition

with the judgments referred to above and upon appreciation of evidence of the

eyewitnesses and other material adduced by the prosecution, the Trial Court as

well as the High Court were right in convicting the appellant for the offence

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under Section 302 IPC. Therefore, we do not find any ground warranting

interference with the findings of the Trial Court and the High Court.

26.As a result, appeal stands dismissed.

….......………….....………….,J

(DINESH MAHESHWARI)

…....…....…..........................J.

(KRISHNA MURARI)

NEW DELHI;

15

TH

JULY, 2022

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