2025 INSC 774 Reportable

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

1.These appeals have been filed against the judgment dated 21

st

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

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.

14.The learned senior counsel submitted that the Trial Court and

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.

16.He deposed about the incident that occurred on 14

th

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

scared to tell anybody about the incident. He stated that on 24

th

December, 2012, he came to the village for Christmas. After hearing a

sermon, he went to CBCID office at Madurai on 26

th

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.

29.In the evidence of PW-1, it is brought on record that accused No.

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

from the same place on 5

th

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

at two different times on 10

th

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

of Uttar Pradesh

1

and Mst Dalbir Kaur and Others v. State of

Punjab

2

. He submitted that these two decisions dealing with the scope

of appellate jurisdiction of this Court under Article 136 of the

Constitution have been consistently followed.

37.In paragraphs 63 and 71 of the decision of this Court in the case

of Pappu v. State of Uttar Pradesh

1

it was held thus:

“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.”

37.1In 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

38.In the case of Mst Dalbir Kaur and Others v. State of Punjab

2

,

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)

38.1This 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.

41.Therefore, in this case, interference will have to be made with the

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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