# Agniraj & Ors. etc v. State through Deputy Superintendent of Police CB-CID

- **Citation:** 2025 INSC 774
- **Court:** Supreme Court of India
- **Decided:** 2025-05-23
- **Bench:** Abhay S. Oka, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/agniraj-ors-etc-v-state-through-deputy-superintendent-of-police-cb-cid-38427
- **Pages:** 25

## Headnote

Whether the High Court was justified in upholding the conviction
of the appellants/accused no. 1 to 11 for offences punishable
u/ss.302 and 307 r/w. s.149 of the Penal Code, 1860 and the other
offences; whether, in the instant case, the trial Court followed the
condition precedent before examining a minor witness; whether
the trial Court satisfied itself that minor witness understood the
importance of the oath.
Headnotes†
Penal Code, 1860 - ss.302, 307 r/w.149 - Tamil Nadu Prevention
of Damage to Public Property Act, 1992 - s.3 - FIR lodged
against thirty accused persons on a complaint made by
PW-1 - There was political rivalry between the parties - On
the night of 14.11.2012, PW-1, deceased no. 1 (brother of
PW-1) along with his son (deceased no. 2) and daughter
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 - To avoid a collision, deceased no. 3 swerved
the car, and the truck grazed the car - A group including
accused no. 1, armed with weapons attacked the car and its
inmates - PW-1 escaped and hid in a nearby bush - The group
attacked the three other occupants to death - When the group
tried setting the car on fire, they spotted some men in police
uniforms and fled - PW-2 witnessed this incident with one
AR - Written complaint filed by PW-1 led to the registration
of the FIR - Prosecution also relied upon fingerprints lifted
from the car and recovery of weapons - Out of the twentyone accused who were charged, accused nos. 1 to 11 were
convicted and others were acquitted - High Court confirmed
the findings of the Trial Court - Correctness:
* Author
[2025] 5 S.C.R.
857
Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
Held: The material prosecution witnesses are PW-1 who is the
first informant and alleged eye-witness, PW-2 and PW-9, a minor
witness - Firstly, the evidence of PW-1 is dealt with - It is brought
on record that though the DSP and other police officers met PW-1 at
the scene of the offence, they did not record his statement - It has
come on record that PW-1 did not directly go to the police station to
record his complaint - Instead, PW-1 along with an advocate, PW14 and PW15 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 - The possibility of filing complaint after deliberation
with the supporters of political party cannot be ruled out - In the
written complaint, PW-1 named 22 persons as accused - During
investigation, 36 persons were treated as accused, out of which,
only 21 persons were charged - 15 accused persons were dropped
with the consent of PW-1 - The reason given is that PW-1 was
nervous and hence, he exaggerated the incident by naming the said
15 accused - He gave no objection for deletion of 15 accused -
PW-1 admitted that, in his report, he stated that 36 persons stood
around the car - Then he came out with the theory that there were
20 persons - PW-1 has exaggerated the incident due to their political
rivalry - He was unsure about the number of accused who were
present at the time of the incident - The incident happened after
09:30 pm - PW-1 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 does not inspire confidence
- Now, dealing with evidence of PW-2 - For more than one and
a half months, he did not approach the police or filed a complaint
in any form - 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 AR was
an eye-witness - However, the prosecution failed to exami

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[2025] 5 S.C.R. 856 : 2025 INSC 774
Agniraj & Ors. etc.
v.
State through Deputy Superintendent of Police CB-CID
(Criminal Appeal No(s). 1686-1688 of 2023)
23 May 2025
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
Whether the High Court was justified in upholding the conviction
of the appellants/accused no. 1 to 11 for offences punishable
u/ss.302 and 307 r/w. s.149 of the Penal Code, 1860 and the other
offences; whether, in the instant case, the trial Court followed the
condition precedent before examining a minor witness; whether
the trial Court satisfied itself that minor witness understood the
importance of the oath.
Headnotes†
Penal Code, 1860 - ss.302, 307 r/w.149 - Tamil Nadu Prevention
of Damage to Public Property Act, 1992 - s.3 - FIR lodged
against thirty accused persons on a complaint made by
PW-1 - There was political rivalry between the parties - On
the night of 14.11.2012, PW-1, deceased no. 1 (brother of
PW-1) along with his son (deceased no. 2) and daughter
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 - To avoid a collision, deceased no. 3 swerved
the car, and the truck grazed the car - A group including
accused no. 1, armed with weapons attacked the car and its
inmates - PW-1 escaped and hid in a nearby bush - The group
attacked the three other occupants to death - When the group
tried setting the car on fire, they spotted some men in police
uniforms and fled - PW-2 witnessed this incident with one
AR - Written complaint filed by PW-1 led to the registration
of the FIR - Prosecution also relied upon fingerprints lifted
from the car and recovery of weapons - Out of the twentyone accused who were charged, accused nos. 1 to 11 were
convicted and others were acquitted - High Court confirmed
the findings of the Trial Court - Correctness:
* Author
[2025] 5 S.C.R.
857
Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
Held: The material prosecution witnesses are PW-1 who is the
first informant and alleged eye-witness, PW-2 and PW-9, a minor
witness - Firstly, the evidence of PW-1 is dealt with - It is brought
on record that though the DSP and other police officers met PW-1 at
the scene of the offence, they did not record his statement - It has
come on record that PW-1 did not directly go to the police station to
record his complaint - Instead, PW-1 along with an advocate, PW14 and PW15 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 - The possibility of filing complaint after deliberation
with the supporters of political party cannot be ruled out - In the
written complaint, PW-1 named 22 persons as accused - During
investigation, 36 persons were treated as accused, out of which,
only 21 persons were charged - 15 accused persons were dropped
with the consent of PW-1 - The reason given is that PW-1 was
nervous and hence, he exaggerated the incident by naming the said
15 accused - He gave no objection for deletion of 15 accused -
PW-1 admitted that, in his report, he stated that 36 persons stood
around the car - Then he came out with the theory that there were
20 persons - PW-1 has exaggerated the incident due to their political
rivalry - He was unsure about the number of accused who were
present at the time of the incident - The incident happened after
09:30 pm - PW-1 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 does not inspire confidence
- Now, dealing with evidence of PW-2 - For more than one and
a half months, he did not approach the police or filed a complaint
in any form - 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 AR was
an eye-witness - However, the prosecution failed to examine him
- Therefore, adverse inference will have to be drawn against the
prosecution - Now coming to PW-9, who 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 oath, the Trial Judge did not satisfy himself that the
witness understood the importance of the oath - 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
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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 - Considering other materials
on record, 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 - Since evidence of PW-1,
PW-2 and PW-9 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 - Thus,
impugned judgments of the High Court and the trial Court are set
aside. [Paras 27-30, 32, 35, 42]
Evidence - Recording evidence of a minor - Procedure:
Held: 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 the instant case, the age of
PW-9 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 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. [Para 25]
Constitution of India - Art. 134 vis-à-vis Art. 136 - Scope of
Appellate jurisdiction - Re-appreciation of evidence in criminal
appeal arising out of Art. 136 - Discussed. [Paras 36-39]
Case Law Cited
Pappu v. State of Uttar Pradesh [2022] 2 SCR 13 : (2022) 10 SCC
321; Mst Dalbir Kaur and Others v. State of Punjab [1977] 1 SCR
280 : (1976) 4 SCC 158 - referred to.
List of Acts
Penal Code, 1860; Tamil Nadu Prevention of Damage to Public
Property Act, 1992.
[2025] 5 S.C.R.
859
Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
List of Keywords
Section 302 of IPC; Political rivalry; President of the Panchayat
Board; Eye-witnesses; Minor witness; AIADMK party; Communist
party; Election; Delay in recording statement; Importance of oath;
Child witnesses; Susceptible to tutoring; Preliminary questions to
minor witness; Test identification parade; Dropping the names;
Mahazar; Panchnama; Fingerprints; Recovery of weapons; Article
134; Article 136; Distinction between appellate jurisdiction in criminal
matters; Interference with concurrent findings; Re-appreciating
evidence.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No(s).1686-1688 of 2023
From the Judgment and Order dated 21.03.2019 of the High Court
of Judicature at Madras in Madurai in CRLA (MD) Nos. 290, 291,
292 of 2015
Appearances for Parties
Advs. for the Appellants:
R. Basant, Siddharth Agarwal, Sr. Advs., Rajeev Maheshwaranand
Roy, Manu Krishnan, Raunak Arora, Gunjan Kumar.
Advs. for the Respondent:
Amit Anand Tiwari, Sr. A.A.G., Sabarish Subramanian, Ms. Devyani
Gupta, Vishnu Unnikrishnan, Ms. Tanvi Anand, Ms. Saushria
Havelia, Ms. Jahnavi Taneja, Pranjal Mishra, Danish Saifi, Vishal
Tyagi.
Judgment / Order of the Supreme Court
Judgment
ABHAY S. OKA, J.
FACTUAL BACKGROUND
1.
These appeals have been filed against the judgment dated 21st 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
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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 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
chargesheet was filed against twenty-one persons. PW-1 gave his
[2025] 5 S.C.R.
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Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
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.
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
862
[2025] 5 S.C.R.
Supreme Court Reports
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 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.
[2025] 5 S.C.R.
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Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
12. The learned senior counsel supported the findings of both the Trial
Court and the High Court and submitted that the appellants 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 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
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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 14th 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 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
[2025] 5 S.C.R.
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Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
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
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 crossexamination, 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
866
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the information 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 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,
[2025] 5 S.C.R.
867
Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
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
(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
24th December, 2012, he came to the village for Christmas.
868
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Supreme Court Reports
After hearing a sermon, he went to CBCID office at Madurai on
26th 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,
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
oath, the learned Trial Judge did not satisfy himself that the witness
understood the importance of the oath.
[2025] 5 S.C.R.
869
Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
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 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.
870
[2025] 5 S.C.R.
Supreme Court Reports
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 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.
[2025] 5 S.C.R.
871
Agniraj & Ors. etc. v.
State through Deputy Superintendent of Police CB-CID
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 shutter of Periya Ooran in Athapadaki village. The recovery is
shown from the same place on 5th 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 10th 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.
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
872
[2025] 5 S.C.R.
Supreme Court Reports
Pradesh1 and Mst Dalbir Kaur and Others v. State of Punjab2. 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 Pradesh1 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.