Babu Vs.
State of Kerala [2010] INSC 617 (11 August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 104
of 2009 Babu ...Appellant Versus State of Kerala ...Respondent
Dr. B.S.
CHAUHAN, J.
1.
This appeal has been preferred against the judgment and order
dated 5.8.2008, passed by the High Court of Kerala, at Ernakulam, in Criminal
Appeal No.908 of 2004, reversing the judgment of acquittal dated 8.4.2003
recorded by the Sessions Court, Thrissur in Sessions Case No. 242 of 2001,
wherein the appellant was charge sheeted for murdering his wife, Sweety, by
giving her Sodium Cyanide.
2.
This is a most unfortunate case, in which, a young, B.Com 2nd year
student, Sweety died under mysterious circumstances within 15 days of her
marriage in her parent's house at Chalakudy. The appellant, Babu, is
post-graduate and at relevant time had been employed in the Gulf in a firm,
namely, Alukkas Jewellery dealing with golden Jewellery. The couple, after
marriage on 15.5.2000, stayed for two days with the brother of the appellant at
Ollur and they came back to Chalakudy on 17.5.2000, as the parents of Sweety
had arranged a reception for them at their house. The couple stayed there for
two days and left for Kozhikode on 19.5.2000 and stayed in the house of Benny
(PW.10), a friend of the appellant. The couple came back on 22.5.2000 to
Chalakudy, the family house of the deceased, Sweety. The couple again went to
Kozhikode on 30.5.2000 to attend the marriage of Benny (PW.10) with one
Seethal, which was scheduled to be held on 31.5.2000 and returned to Chalakudy,
at 4.00 p.m. on 1.6.2000. The appellant left Sweety at her parent's house and
went to Amala Hospital to meet his sister and mother as his mother had
undergone an operation for cancer and was 2 convalescing. The appellant
returned to Sweety's house at about 10.30 p.m. and found that door of her room
was bolted from inside and there was no response on calling to her. The door
was broke opened by the appellant and Sweety's father.
Sweety
was found unconscious lying on the floor. She was taken to the Government
Hospital, Chalakudy, where she was declared dead by the doctors. Poulose
(PW.1), father of the deceased lodged an F.I.R. on 2.6.2000 at 7.00 a.m. and it
was registered as Crime No. 242 of 2000. The inquest was conducted on the same
day and post mortem was conducted on 3.6.2000, and the deceased was buried
thereafter. Paily (PW.21), the Deputy Superintendent of Police while conducting
the investigation of the case received information that just few days prior to
the incident the appellant had procured Cyanide, thus, he was arrested on
26.6.2000. An alleged confessional statement was made by the appellant that he
had purchased Sodium Cyanide from the shop of Xavior (PW.7), who was dealing
with jewellery as well as Sodium Cyanide. Xavior, PW.7 made a statement that
the appellant had procured 1 Kg. Sodium Cyanide from him between 25.5.2000 and
27.5.2000.
The post
mortem report revealed that Sweety died of Cyanide poisoning. As per the
statement of Omana Poulose (PW.9), mother of the deceased Sweety, the poison
was given to Sweety by the appellant under the guise of giving her an ayurvedic
contraceptive medicine. Paily (PW.21), the Investigating Officer completed the
investigation and submitted a charge sheet against the appellant for the
offence under Section 302 of the Indian Penal Code, 1860 (hereinafter called as
`IPC'). The appellant pleaded not guilty to the charge of murder and claimed
trial. The prosecution examined 21 witnesses in support of its case. Appellant
in his statement under Section 313 of the Code of Criminal Procedure, 1973
(hereinafter called as `Cr.P.C.') stated that he was innocent and there was a
possibility of the involvement of Benny (PW.10), who had misbehaved with Sweety
and had sexual intercourse with her on 31.05.2000 when the couple was staying
with him. More so, Sweety might have committed suicide because of feelings of
guilt for that reason. The Trial Court dis-believed the prosecution witnesses
and acquitted the appellant vide judgment and order dated 8.4.2003.
3.
The High Court considered the submissions made by the prosecution
that the appreciation of evidence by learned Sessions Judge was not proper one,
thus, the findings of fact recorded by the Trial Court were perverse. The
circumstances proved, ruled out the possibility of suicide. The medical
evidence proved beyond doubt that the deceased died of Cyanide poisoning.
Nobody except the appellant had procured the Cyanide poison and the appellant
had persuaded the deceased Sweety to take it under the garb of it being an oral
contraceptive. There was no question of dis-believing all the prosecution
witnesses including the parents and sister of the deceased, Sweety. Appellant
was unhappy with the deceased for her non-cooperation in carnal intercourse.
Therefore, all the circumstances necessary to record a finding of guilt against
the appellant stood proved by the prosecution. The High Court, vide impugned
judgment and order dated 5.8.2008, accepted the State's appeal and reversed the
judgment and order of acquittal dated 8.4.2003 passed by the Trial Court.
Hence, this appeal.
4.
Shri Venkat Subramonium T.R., learned counsel appearing for the
appellant, has submitted that the High Court should not have interfered with
the judgment and order of acquittal by the Trial Court in a routine manner. The
findings of the Trial Court could not be held to be perverse, being based on
irrelevant material i.e. evidence on record. The Trial Court had rightly
dis-believed the prosecution witnesses as it had an opportunity to watch their
demeanour in the court, and to assess their credibility. The acquittal by the
Trial Court bolstered the presumption of innocence of the appellant. However,
the High Court erred gravely holding that the circumstances pointed out to the
guilt of the appellant and no circumstance had been brought to the notice of
the court which was inconsistent with his guilt. More so, while reversing the
judgment of acquittal as recorded by the Trial Court, the High Court imposed a
fine of Rs. 1,00,000/- (Rupees one lac) on the appellant which was totally
unwarranted. There was no direct evidence in the case. It was a case of
circumstantial evidence, thus, the prosecution had to establish the motive for
crime. The test for proving a case of 6 circumstantial evidence stands entirely
on a different footing, than a case of direct evidence. The judgment of Trial
Court did not warrant any interference. Appeal has merit and deserves to be allowed.
5.
Per contra, Shri R. Sathish, learned counsel appearing for the
State has vehemently opposed the appeal contending that no one else except the
appellant had an opportunity to commit the offence as he was fully aware that
Cyanide is used for purification and colouring of gold jewellery and he
succeeded in procuring Sodium Cyanide from Xavior (PW.7).
The Trial
Court had wrongly dis-believed all the prosecution witnesses. The High Court
had re-appreciated the entire evidence and recorded a finding of guilt which
does not warrant interference by this Court. Appeal lacks merit and is liable
to be dismissed.
6.
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
7 LEGAL
ISSUES:
(I)
Appeal against Acquittal :
7.
This court time and again has laid down the guidelines for the
High Court to interfere with the judgment and order of acquittal passed by the
Trial Court.
The
appellate court should not ordinarily set aside a judgment of acquittal in a
case where two views are possible, though the view of the appellate court may
be more, the probable one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence on record, so as to arrive
at a finding as to whether the views of the trial Court were perverse or
otherwise unsustainable. The appellate court is entitled to consider whether in
arriving at a finding of fact, the trial Court had failed to take into
consideration admissible evidence and/or had taken into consideration the
evidence brought on record contrary to law.
Similarly,
wrong placing of burden of proof may also be a subject matter of scrutiny by
the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165;
Shambhoo Missir &
8 Anr. v.
State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P.
AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh
& Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh
AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) State (2009) 10 SCC 206;
Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram
Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
8.
In Sheo Swarup and Ors. v. King Emperor AIR 1934 PC 227, the Privy
Council observed as under:
"...the
High Court should and will always give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the credibility of the
witnesses, (2) the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been acquitted at
his trial, (3) the right of the accused to the benefit of any doubt, and (4)
the slowness of an appellate court in disturbing a finding of fact arrived at
by a Judge who had the advantage of seeing the witnesses...."
9.
The aforesaid principle of law has consistently been followed by
this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v.
State of Punjab AIR 1957 SC 216;
M.G.
Agarwal v. State of Maharashtra AIR 1963 SC 200;
Khedu
Mohton & Ors. v. State of Bihar AIR 1970 SC 66;
Sambasivan
and Ors. v. State of Kerala (1998) 5 SCC 412;
Bhagwan
Singh and Ors. v. State of M.P. (2002) 4 SCC 85;
and State
of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
10.
In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415,
this Court reiterated the legal position as under:
"(1)
An appellate court has full power to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is founded.
(2) The
Code of Criminal Procedure, 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of law.
(3)
Various expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc.
are not
intended to curtail extensive powers of 1 an appellate court in an appeal
against acquittal. Such phraseologies are more in the nature of
"flourishes of language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An
appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If
two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the
trial court."
11.
In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this
Court re-iterated the said view, observing that the appellate court in dealing
with the cases in which the trial courts have acquitted the accused, should
bear in mind that the trial court's acquittal bolsters the presumption that he
is innocent. The appellate court must give due weight and 1 consideration to
the decision of the trial court as the trial court had the distinct advantage
of watching the demeanour of the witnesses, and was in a better position to
evaluate the credibility of the witnesses.
12.
In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the
Court again examined the earlier judgments of this Court and laid down that an
"order of acquittal should not be lightly interfered with even if the
court believes that there is some evidence pointing out the finger towards the
accused."
13.
In State of Uttar Pradesh v. Banne alias Baijnath & Ors.
(2009) 4 SCC 271, this Court gave certain illustrative circumstances in which
the Court would be justified in interfering with a judgment of acquittal by the
High Court. The circumstances includes:
i) The
High Court's decision is based on totally erroneous view of law by ignoring the
settled legal position;
ii) The
High Court's conclusions are contrary to evidence and documents on record;
1 iii)
The entire approach of the High Court in dealing with the evidence was patently
illegal leading to grave miscarriage of justice;
iv) The
High Court's judgment is manifestly unjust and unreasonable based on erroneous
law and facts on the record of the case;
v) This
Court must always give proper weight and consideration to the findings of the
High Court;
vi) This
Court would be extremely reluctant in interfering with a case when both the
Sessions Court and the High Court have recorded an order of acquittal.
14.
A similar view has been reiterated by this Court in Dhanapal v.
State by Public Prosecutor, Madras (2009) 10 SCC 401.
15.
Thus, the law on the issue can be summarised to the effect that in
exceptional cases where there are compelling circumstances, and the judgment
under appeal is found to be perverse, the appellate court can interfere with
the order of acquittal. The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial Court's acquittal
bolsters the presumption of his innocence. Interference in a routine manner
where the other 1 view is possible should be avoided, unless there are good
reasons for interference.
16.
The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible material. The
finding may also be said to be perverse if it is "against the weight of
evidence", or if the finding so outrageously defies logic as to suffer
from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi
Administration AIR 1984 SC 1805; H.B. Gandhi & Ors. v. Gopi Nath & Sons
1992 supp. (2) SCC 312; Triveni Rubber & Plastics v. Collector of Central
Excise, Cochin AIR 1994 SC 1341; Gaya Din (D) thr. Lrs. & Ors. v. Hanuman
Prasad (D) thr. Lrs. & Ors. AIR 2001 SC 386; Aruvelu & Anr. (Supra);
and
Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary
(2009) 10 SCC 636).
17.
In Kuldeep Singh v. Commissioner of Police & Ors. AIR 1999 SC
677, this Court held that if a decision is arrived at on the basis of no
evidence or thoroughly unreliable evidence 1 and no reasonable person would act
upon it, the order would be perverse. But if there is some evidence on record
which is acceptable and which could be relied upon, the conclusions would not
be treated as perverse and the findings would not be interfered with.
(II) Case
of Circumstantial Evidence :
18.
In Krishnan v. State represented by Inspector of Police (2008) 15
SCC 430, this Court after considering large number of its earlier judgments
observed as follows:
"This
Court in a series of decisions has consistently held that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
(ii)
those circumstances should be of definite tendency unerringly pointing towards
guilt of the accused;
(iii) the
circumstances, taken cumulatively, should form a chain so complete that there
is no escape from the conclusion that with all human probability the crime was
committed by the accused and none else; and (iv) the circumstantial evidence in
order to sustain conviction must be complete and 1 incapable of explanation of
any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence. (See Gambhir v. State of Maharashtra, AIR 1982
SC 1157)".
19.
In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC
1622, while dealing with circumstantial evidence, it has been held that the
onus was on the prosecution to prove that the chain is complete and the
infirmity or lacuna in prosecution cannot be cured by false defence or plea.
The conditions precedent before conviction could be based on circumstantial
evidence, must be fully established. They are :
(i) the
circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned `must or should' and not `may be'
established;
(ii) the
facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(iii) the
circumstances should be of a conclusive nature and tendency;
(iv) they
should exclude every possible hypothesis except the one to be proved; and (v)
there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the 1 innocence of the accused and
must show that in all human probability the act must have been done by the
accused.
20.
A similar view has been re-iterated by this Court in State of U.P.
v. Satish, (2005) 3 SCC 114; and Pawan v. State of Uttaranchal (2009) 15 SCC
259.
21.
In Subramaniam v. State of Tamil Nadu, (2009) 14 SCC 415, while
considering the case of dowry death, this Court observed that the fact of
living together is a strong circumstance but that by alone in absence of any
evidence of violence on the deceased cannot be held to be conclusive proof, and
there must be some evidence to arrive at a conclusion that the husband and
husband alone was responsible therefor. The evidence produced by the
prosecution should not be of such a nature that may make the conviction of the
appellant unsustainable. (See Ramesh v. State of Rajasthan (2009) 12 SCC 603).
(III)
Motive in cases of Circumstantial Evidence 1
22.
In State of Uttar Pradesh v. Kishan Pal & Ors., (2008) 16 SCC
73, this Court examined the importance of motive in cases of circumstantial
evidence and observed:
".......the
motive is a thing which is primarily known to the accused themselves and it is
not possible for the prosecution to explain what actually promoted or excited
them to commit the particular crime.
The
motive may be considered as a circumstance which is relevant for assessing the
evidence but if the evidence is clear and unambiguous and the circumstances
prove the guilt of the accused, the same is not weakened even if the motive is
not a very strong one. It is also settled law that the motive loses all its
importance in a case where direct evidence of eyewitnesses is available,
because even if there may be a very strong motive for the accused persons to
commit a particular crime, they cannot be convicted if the evidence of
eyewitnesses is not convincing. In the same way, even if there may not be an
apparent motive but if the evidence of the eyewitnesses is clear and reliable,
the absence or inadequacy of motive cannot stand in the way of
conviction."
23.
This Court has also held that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in favour of the
accused. (vide: Pannayar v. State of Tamil Nadu by Inspector of Police, (2009)
9 SCC 152).
(IV)
Burden of Proof and Doctrine of Innocence 1
24.
Every accused is presumed to be innocent unless the guilt is
proved. The presumption of innocence is a human right. However, subject to the
statutory exceptions, the said principle forms the basis of criminal
jurisprudence. For this purpose, the nature of the offence, its seriousness and
gravity thereof has to be taken into consideration. The courts must be on guard
to see that merely on the application of the presumption, the same may not lead
to any injustice or mistaken conviction. Statutes like Negotiable Instruments
Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive
Activities (Prevention) Act, 1987, provide for presumption of guilt if the
circumstances provided in those Statutes are found to be fulfilled and shift
the burden of proof of innocence on the accused. However, such a presumption
can also be raised only when certain foundational facts are established by the
prosecution. There may be difficulty in proving a negative fact. However, in
cases where the statute does not provide for the burden of proof on the
accused, it always lies on the prosecution. It is only in exceptional
circumstances, such as those of statutes as referred to 1 hereinabove, that the
burden on proof is on the accused. The statutory provision even for a presumption
of guilt of the accused under a particular statute must meet the tests of
reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution.
(Vide: Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16; Narendra
Singh v. State of M.P., AIR 2004 SC 3249; Rajesh Ranjan Yadav v. CBI, AIR 2007
SC 451; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; and Krishna
Janardhan Bhat v. Dattatraya G. Hegde, AIR 2008 SC 1325).
INSTANT
CASE:
25.
The instant case requires to be examined in the light of the
aforesaid settled legal propositions.
The
incident occurred within a very short span of time after the marriage of the
deceased with the appellant. They got married on 15.5.2000 and went to Ollur
for two days and came back to Chalakudy, the house of the deceased. On
19.5.2000, they went to Kozhikode, house of Benny (PW.10), 2 and returned on
22.5.2000. The deceased appeared in the examination of B.Com 2nd Year on
23.5.2000. The appellant stayed with his brother at Ollur on 26th/27th May, 2000
as he was not feeling well. Omana Poulose (PW.9), mother of the deceased had
gone to his brother's house on 27.5.2000 to know the health condition of the
appellant's mother as she was suffering from cancer and was to be operated on
30.5.2000. At the instance of the deceased and Omana Poulose, (PW.9), the
appellant along with deceased Sweety attended the marriage of Benny (PW.10) on
31.5.2000 at Kozhikode. Immediately after the marriage of Benny (PW.10), his
wife Seethal had gone to her parents' house as there was some problem because
it was a love marriage and her family members were not happy with the marriage
and did not participate in the marriage on 31.5.2000. When the appellant and
deceased Sweety were staying with Benny (PW.10), the appellant had taken liquor
and had gone outside to make a call to his employer in the Gulf and when he
came back after some time he saw the deceased and Benny (PW.10) in a
compromising position and did not like the situation.
2
Therefore, the appellant confronted deceased Sweety and she had told him that
Benny (PW.10) had forcibly done it. All these explanations had been furnished
by the appellant in his statement under Section 313 Cr.P.C.
26.
In the opinion of Dr. V.K. Ramankutty (PW.17), Sweety died of
Hydro Cyanic Acid. The said witness also opined that anti-mortem injuries found
on the body of Sweety could be caused on contact with the rough surface on
falling after consumption of the poison and peeling of cuticle might have been
due to fall of vomitus containing cyanide as cyanide is a corrosive substance.
27.
There is no direct evidence whatsoever regarding taking or
administering the poison. Prosecution's case had been that the appellant had
persuaded deceased Sweety, to take an ayurvedic contraceptive medicine and
under that guise he had given her Sodium Cyanide. Omana Poulose (PW.9) and Sini
(PW.2), mother and sister of deceased Sweety deposed that there were three
calls from outside by the appellant to Sweety just to know as to whether she
had taken the said medicine.
2 As per
their evidence, two of the said three telephone calls i.e. 1st and 3rd calls
were attended to by the deceased, Sweety. In the first call, the appellant had
scolded the deceased for not taking a bath. When the appellant called the
second time, he was informed that the deceased was taking a bath and he
disconnected the phone. In the final call, the deceased spoke to the appellant
and subsequently, she informed her mother that the appellant had called to
check if she was going to sleep and whether she had taken the contraceptive
medicine before sleeping. In her evidence, Omana Poulose (PW.9) further stated
that the deceased had whispered to herself "Why a person who has gone to
bed is called back and told again to sleep". The Trial Court has observed
that this would indicate that as per the prosecution's version of events, the
deceased had already taken the medicine containing Cyanide before attending the
third call. From the evidence of Dr. V.K. Ramankutty, Professor of Forensic
Medicine (PW.17), it is clear that Sodium Cyanide is a highly corrosive
substance and even the fall of vomitus containing the same is sufficient to
cause the peeling of a person's cuticles. He has even stated that 2 death from
Cyanide poisoning generally occurs within 10-20 minutes of consumption of the
poison. This being the case, if deceased Sweety had already taken Sodium
Cyanide before attending the third call, she should have been in severe
difficulties at that time. By the time, she attended the last call, she should
have vomited already and corrosion would have already occurred in her mouth.
But nothing of that sort had occurred. The High Court disbelieved the version
of events described by the appellant in his statement made under Section 313
Cr.P.C., wherein, he stated that the deceased Sweety might have taken cyanide
from the Almirah of Benny (PW.10). The High Court observed that had she taken
the cyanide at Benny's residence at Kozhikode "she would have died within
a few minutes." The Trial Court came to the finding of fact that this
aspect of the prosecution's case had not been sufficiently established. The
High Court failed to notice this finding of the Trial Court.
28.
The evidence given by the Telephone Booth Operator, Krishnan
(PW.14) had been to the extent that the appellant 2 had gone to his booth and
telephoned someone. He stated that he could only be sure that the accused had
come once or twice around the incident. He further stated that normally the
people dial the telephone on their own and that there was a separation between
his seat and the place from where the appellant had made the phone call.
Consequently, both the Trial Court and the High Court came to the conclusion
that the evidence offered by Krishnan (PW.14) was not reliable.
The High
Court, however, stated that there was no reason to disbelieve the prosecution's
version that the appellant had called at the residence of the deceased thrice
on the evening of the date of incident as this has been established by the
evidence of Sini (PW.2) and Omana Poulose (PW.9). The High Court did not see
any reason to disbelieve the evidence of Sini (PW.2) and Omana Poulose (PW.9)
in this regard. The High Court failed to notice the observation of the Trial
Court that Sini (PW.2) and Omana Poulose (PW.9) both were sister and mother of
the deceased Sweety and had inimical feelings towards the appellant since they
have come to the conclusion that the appellant was responsible for her death
and their 2 deposition had material improvements from their statements recorded
during investigation.
The Trial
Court had further observed that there was a further irregularity surrounding
the investigation into the alleged phone calls. In his evidence, Krishnan
(PW.14) has stated that the telephone booth was computerised and that there
would have been records of the phone calls that had been made on the given day
(indicating what time, the calls had been made and to what phone number, they
had been made). The Investigating Officer made no attempt to recover the said
records nor did he make an attempt to examine the employer of Krishnan (PW.14),
who received a copy of these records every month. The High Court has failed to
notice the above-said observations of the Trial Court. Krishnan (PW.14) was
examined by the police on 17.6.2000 when he stated:
"In
a day an average of 70 to 80 persons may come there to make telephone calls. On
such time it was computerized. Once a person makes a call, the other number to
where the call is received would be recorded in the computer. The direction and
charge would also be recorded in that ..... I did not say to police 2 that
before first accused came there one or two times to make telephone call. The
dates before that he came to make telephone could not be remembered. It was in
the evening. I could not remember the time."
It is
strange that Paily (PW.21), the Investigating Officer did not make any
reference at any stage to Krishnan (PW.14) in his evidence before the court. In
case, the High Court as well as the trial Court found Krishnan (PW.14) to be
unreliable and Paily (PW.21), the I.O. did not make any reference to Krishnan
(PW.14), nor any record of the computerised call sheet was produced in
evidence, only the statements of Sini (PW.2) and Omana Poulose (PW.9) existed
to further the prosecution's theory that the appellant made three phone calls
on the day of the incident. Sini (PW.2) and Omana Poulose (PW.9) might have an
inimical attitude towards the appellant after thinking that appellant was responsible
for Sweety's death. The prosecution has failed to establish that the appellant
made three phone calls to the residence of the deceased prior to the incident.
29.
We are of the opinion that all of the aforesaid circumstances
raise great doubts about the prosecution's theory regarding the three phone
calls by the appellant to the residence of the deceased on the evening of the
incident, being an indication of the anxiety of the appellant. Thus, the very
genesis of the case stands falsified.
30.
Admittedly, the appellant and deceased were staying with Benny
(PW.10) on 30-31.5.2000. Omana Poulose, mother of the deceased (PW.9), had
given two-three calls but Benny (PW.10) did not talk to her and the explanation
given by the appellant was that as Benny (PW.1) had mis-behaved with Sweety,
she might have telephoned her mother. Thus, Omana Poulose (PW.9), wanted to
talk to Benny (PW.10) seeking his explanation, though, the deceased told her
mother (PW.9) that Benny (PW.10) was not there. However, Benny (PW.10) had
deposed in his examination that he was there, but outside the house. No
explanation was furnished by Benny (PW.10) as to why he did not want to talk to
Omana Poulose (PW.9).
31.
It is in evidence that the appellant had purchased a huge quantity
(1 Kg.) of Sodium Cyanide on 26th/27th May, 2000, from Xavior (PW.7). Namdev
(PW12) stated that it was known to Jaison (PW.4) who had asked him for cyanide
for one of his friends. Namdev (PW.12) did not name the appellant at all. It is
nobody's case that the appellant has any type of acquaintance with Xavior
(PW.7). According to Xavior (PW.7), he was running an institution, namely, C.P.
Sons Engraving and Electroplating. Appellant had met him twice in the last week
of May, 2000 and asked him for 1 kg. Sodium Cyanide as he had started a
jewellery shop. The witness gave him 1 Kg. sodium cyanide after taking the
payment. He was interrogated by the police after a month. The witness has
admitted that he had no licence to deal with sodium cyanide and was not maintaining
any account/record of its sale. It was a totally illegal activity on his part.
He was not able to explain what was the source of supply to him. He simply
stated that he used to purchase it from Tamilians. Xavior (PW.7) supplied 1 Kg.
sodium cyanide to the appellant without making a receipt. He could not reveal
the amount he had 2 taken. It is strange that a dealer, indulging in an illegal
business has trusted an unknown person and supplied him such a huge quantity of
sodium cyanide without verifying whether he had a jewellery shop or not. The
Trial Court had rightly disbelieved him as such a conduct is against normal
human behaviour and, particularly, when Xavior (PW.7) has himself stated that
he used to give sodium cyanide only to known persons having jewellery shop.
Other witnesses, particularly, Jaison (PW.4) and Davis (PW.5), deposed that the
appellant had told them that he wanted to purchase Sodium Cyanide for killing
the stray dogs on the streets. Further, the appellant was an employee of Alukkas
Jewellery which had branches in Kerala and he could have easily procured the
Sodium Cyanide from there .
32.
There is ample evidence on record to show that Jaison (PW.4),
Davis (PW.5) and Namdev (PW.12) were known to and friends of Benny (PW.10). Benny
(PW.10) had himself indulged in the business of cleaning and colouring
jewellery, and thus, knew how to use Sodium Cyanide. To kill a person, a small
3 quantity of a few milligrams is enough. This means that as per the
prosecution's case, almost an entire one kilogram of sodium cyanide should have
still been with the appellant. In this context it is pertinent to note that no
recovery of Sodium Cyanide had been made from the accused. Nor has there been
any recovery of the remaining amount of the ayurvedic contraceptive medicine
that the appellant was alleged to have mixed the cyanide in. In the instant
case, the inquest was conducted on 2.6.2000 by L.K. Somanathan, Tahsildar
(PW.18) and the clothes worn by the deceased were preserved which included
Churidar Bottom (M.O.1), Bathing Towel (M.O.2), Chuddy (M.O.3), Brasiere
(M.O.4) and Churidar Top (M.O.5). There is no explanation by the prosecution as
to why only Churidar Top (M.O.5) alone was sent for medical analysis As per the
chemical analyst report in respect of Churidar Top (M.O.5), a yellowish water
soluble material (stain) was found.
However,
it does not lead to the inference that M.O.5 contained any evidence of having
Cyanide. Dr. V.K.
Ramankutty
(PW.17) has stated that Sodium Cyanide is water soluble and since a water
soluble stain was found on the 3 Churidar Top, on chemical examination Sodium
Cyanide could have been detected.
33.
It is evident from the record that Benny (PW.10) was not known to
the deceased, Sweety or any of her family members before Sweety's marriage. The
record reveals that Smt. Omana Poulose (PW.9), mother of the deceased had been
in contact of Benny (PW.10) continuously. In spite of the fact that Benny
(PW.10) did not talk to her in spite of two-three calls on 31.5.2000 when appellant
and Sweety were staying with him, on the date of incident, Smt. Omana Poulose
(PW.9) still telephoned Benny (PW.10) at about mid-night and informed him about
the unfortunate incident. It is even admitted by Benny (PW.10) in his
examination-in-chief that on the same night Sweety's mother telephoned him and
told that Sweety was not getting up even after they had tried their best to
wake her. After opening the door, Babu, the appellant and his father-in-law
took her to the hospital. Immediately after receiving a telephone call at
mid-night, Benny (PW.10) had left for Chalakudy from Kozhikode and had reached
Thrissur. He 3 telephoned and came to know that Sweety had died. No explanation
could be furnished by Omana Poulose (PW.9), mother of the deceased as to what
was the occasion to inform Benny (PW.10) at mid-night except that he was a good
friend of the appellant. Undoubtedly, there were good relations between the
two, otherwise the appellant could not have gone to his house just after the
marriage and could not have attended the wedding of Benny (PW.10) leaving his
mother, who was suffering from cancer, in the hospital. However, it is also on
record that Benny (PW.10) had taken loan from the appellant and two cheques
issued by Benny (PW.10) had bounced and some complaints were also pending
between the parties.
34.
On the fateful night, when Sweety had been taken to the hospital,
the house of Omana Poulose (PW.9) remained open and a large number of persons
visited the house. Fr. Johnson G. Alappat (PW.8), the Priest had come about
12.30 at night and he was the first person to see the glass with white material
on Almirah. The inquest in the case started on next 3 day. As per Fr. Johnson
Alappat (PW.8), it was a white colour material, but the analyst's report reveal
that it was a yellowish colour. Two glasses and a container etc. were recovered
and they were marked as MOs. 4, 6, and 8. The recovery was made on 2.6.2000.
Admittedly, the said material was produced before the Magistrate in Court only
on 8.6.2000. Therefore, it remained in the custody of Investigating Officer for
6 days.
There is
no evidence on record to show that said material had been kept under the sealed
cover. According to the deposition of Fr. Johnson G. Alappat (PW.8), the room
was open and a large number of persons i.e. about 25 persons were there. He was
informed by Sini (PW.2), sister of the deceased Sweety about the three phone
calls made by the appellant on that day. He deposed that the appellant had
talked to him for about half an hour and disclosed that "he loved one
Della and hence, it was the cause of Sweety's death." In fact, it also
came i=n evidence that the said Della was the daughter of the appellant's elder
brother and was only 8 years old at the time of the incident. Fr. Johnson G.
Alappat (PW.8) admitted that in order to find out the truth and take proper
action against 3 the culprit in this case an "Action Council" was
formed under his patronage. He further deposed as under:
"I
informed the police that Sweety and Babu were at Kozhikkode for seven days. I
informed the S.P. that there is something to suspect about that. I informed the
Dy. S.P. that I knew during the time of inquest there were seven injuries on
Sweety's body. I doubted it happened during the time of the Kozhikkode journey.
I told the police that this aspect is not clear. I doubted that at Kozhikkode
Sweety was harassed physically and mentally and in order to hide it, somebody
might have done something."
It is
apparent that the role of Fr. Johnson G. Alappat (PW.8) was not such that may
inspire confidence. Instead, he gave a new theory from his own imagination as
it was nobody's case that the couple stayed at Kozhikode for seven days. Had it
been so, four injuries on the face, at least, could have been noticed by her
family members just on her arrival. Medical evidence has been that injuries
found on the person of the deceased could be caused because of fall after
consumption of cyanide.
3 The
Trial Court dis-believed Sini (PW.2), the sister and Omana Poulose (PW.9),
mother of the deceased taking into consideration the fact that they and had
made improvements to the extent that their statements were inconsistent with
the statement recorded by the I.O. under Section 161 Cr.P.C. The well reasoned
judgment of the Trial Court has been reversed by the High Court without giving
proper reasoning and without realising that it was a case of circumstantial
evidence.
No motive
was attributed except that Benny (PW.10) had deposed that appellant was not
satisfied with the sexual behaviour of Sweety deceased.
While the
High Court was satisfied with this alleged motive, it failed to notice the
glaring contradiction that surrounded it. On the one hand, the prosecution's
case alleges that the motive behind the appellant's murder of his deceased wife
was that she was refusing to have sexual relations with him. On the other hand,
the prosecution's case is that the deceased, Sweety, was taking an ayurvedic
contraceptive at the behest of the appellant. There is absolutely no explanation
3 that has been provided for why the deceased, Sweety, would have taken a
contraceptive if she was not having sexual relations with her husband or anyone
else. In any event, it should be noted that the judgment of the trial court
found that Benny (PW.10) also stated in his testimony that the deceased,
Sweety, had agreed to have intercourse with the appellant.
The
couple could live together only for a period of two weeks, such a short span of
time is not enough to record a finding on personal relations between husband
and wife. Even otherwise, if the deceased Sweety had such attitude, she could
have told her mother Omana Poulose (PW.9), on being asked by her, as to what
precaution she had been taking for avoiding pregnancy. In view of such material
contradictions in the case of the prosecution, we are of the opinion that the
prosecution has been unable to establish a motive in the instant case.
35.
In view of the fact that Benny (PW.10) had developed intimacy with
the deceased Sweety and her mother and while travelling in a car he had fed
Sweety with his hands while the appellant was asleep and there had been some
untoward 3 incident about which the appellant had confronted the deceased, the
possibility of some involvement of Benny (PW.10) cannot be ruled out or it
could also cause embarrassment to deceased. In a case of circumstantial
evidence, motive must be established at least to certain extent.
Had there
been a motive on the part of the appellant to get rid of deceased and he had
purchased the Sodium Cyanide on 26th/27th May, 2000, from Xavior (PW.7), it is
difficult to believe that he was waiting upto 1.6.2000 and that he would have
advised his wife to take the Cyanide under the guise of an Ayurvedic
contraceptive medicine at the residence of her parents.
36.
The Trial Court had doubts regarding the veracity of the
depositions of Jaison (PW.4), Davis (PW.5), and Xavior (PW.7), being friends of
Benny (PW.10). The Trial Court, in fact, had an advantage to watch the
demeanour of the witness and was in a better position to evaluate their
credibility. Thus, the High court ought not to have reversed the judgment of
the Trial Court. The High Court observed as under:
3
".....that it was the accused and the accused only who could have caused
her to take the poison. The above circumstances clearly point only to the guilt
of the accused and no circumstance has been brought to our notice, which is
inconsistent with his guilt.....". (emphasis added) In fact, the High
Court has erred in emphasising that onus to prove his innocence was on the
appellant. It could not be the requirement of law. In fact the prosecution has
to prove its case beyond reasonable doubt. In the case of circumstantial
evidence the burden on prosecution is always greater.
37.
In view of the above, the judgment and order of the High Court
impugned herein dated 5.8.2008 in Criminal Appeal No.908 of 2004 is hereby set
aside and judgment and order of the Trial Court dated 8.4.2003 is restored.
The
appellant be released forthwith if he is in custody and not wanted in any other
case. The appeal is allowed accordingly.
..................................J. (P. SATHASIVAM)
..................................J.
Back
