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2014- Oct. Month- S.C.- CRIMINAL APPEAL NO. 2202 OF 2014 [Arising Out of Special Leave Petition (Criminal) No. 7185 of 2013] |ANANDA POOJARY |.....APPELLANT(S) | |VERSUS | | |STATE OF KARNATAKA |.....RESPONDENT(S)

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2202 OF 2014
     [Arising Out of Special Leave Petition (Criminal) No. 7185 of 2013]




|ANANDA POOJARY                           |.....APPELLANT(S)              |
|VERSUS                                   |                               |
|STATE OF KARNATAKA                       |.....RESPONDENT(S)             |


                               J U D G M E N T


A.K. SIKRI, J.

      Leave granted.

2.    By this appeal, the appellant Ananda Poojary  questions  the  legality
and validity of the judgment dated 14.02.2013 passed by the  High  Court  of
Karnataka, whereby the appellant's conviction  for  offences  under  Section
302 and Section 201 of the Indian Penal Code  (for  short  'IPC')  has  been
upheld.  The High Court has also upheld the sentence passed by the  Sessions
Judge,  Udupi.   The  result  is  that  the  appellant  is  made  to  suffer
incarceration for life for allegedly murdering his own foster mother.

3.    It is an admitted position, accepted by the  two  courts  below,  that
the deceased Dorathi Kutinho, who was a Teacher, had brought Ananda  Poojary
(the appellant) who was her student to her house and had showered  love  and
affection like a mother.  In her old age, there was  nobody  to  look  after
her as she was living  with  her  only  brother  Rudolph  Kutinho,  who  was
mentally challenged.  Dorathi Kutinho had full confidence in  the  appellant
and kept him as a caretaker.  It is also established  on  record,  which  is
the case of prosecution itself, that the appellant had taken  due  and  full
care of the deceased as well as her brother.  He had been  nursing  both  of
them so well.  Dorathi  Kutinho  was  too  pleased  with  his  selfless  and
dedicated service, giving all due attention to  her  and  her  brother.   So
much so, she had started loving the appellant as  her  son  and  because  of
this reason, she had  executed  a  Will  bequeathing  all  her  movable  and
immovable properties to the appellant.  It  was,  however,  subject  to  one
condition viz. the appellant, who is otherwise a Hindu, marries a  Christian
lady.  In the said Will, she had even conferred upon  the  appellant  rights
to perform all rituals after her death and of her brother Rudolph Kutinho.

4.    Sadly, on 1st March, 2006, Dorathi Kutinho had to rush to a  hospital.
 As per the appellant, she had complained of chest pain.  By  the  time  she
reached the hospital, she had died.  The doctor who examined  her  issued  a
certificate stating that she had died of cardiac arrest.   However,  as  per
the postmortem done few days later, the cause  of  death  was  found  to  be
Asphyxia as a result of smothering.   The  appellant  was  roped  in  as  an
accused committing murder of Dorathi Kutinho and was  put  to  trial.   Both
the sessions court as well as  the  High  Court  have  found  the  appellant
guilty of the offences under Section 302 and Section 201 IPC.  It is  to  be
examined in this appeal as to whether the courts below are  right  in  their
conclusion that the appellant who was supposed to act as savior  of  Dorathi
Kutinho had become the destroyer of her life.

5.    As per the prosecution, Dorathi Kutinho was aged and had a brother  by
name Rudolph Kutinho, a mentally challenged person.  Only two of  them  were
residing in the house of the deceased  situated  in  Najaru,  Kelarkalabettu
Village, Udupi.  She was an affluent lady and  having  lots  of  jewels  and
fixed deposits as well as investments in several banks and  other  financial
institutions.  She also owned a house where she  was  living.   Though,  her
father had two foster sons, they were living separately.  One  of  them  was
Anthony Kutinho (PW-3) and  other  Simon  Kutinho,  who  is  a  resident  of
America.

6.    In so far as the alleged murder of Dorathi Kutinho on the fateful  day
i.e. 1st March, 2006 is concerned, the case set up by  the  prosecution  was
that though Dorathi had executed a Will in her favour the appellant was  not
willing to wait till the death of Dorathi Kutinho and was  eager  to  secure
all her properties.  With this motive in mind, he had planned  to  eliminate
Dorathi and in furtherance of this intention, on 01.03.2006  at  about  6.00
a.m. in the morning smothered her mouth and  nose  and  on  account  of  the
same, Dorathi Kutinho died  due  to  Asphyxia.   In  order  to  destroy  the
evidence of the said murder, he took the dead body  of  Dorathi  Kutinho  in
the auto-rickshaw of PW-10 Roshan Kumar to Adarsha hospital as  if  she  was
suffering from cardiac arrest.  When Dorathi Kutinho's  body  was  taken  to
Adarsha hospital,  she  was  seen  by  CW-13  Dr.  Rekha  and  in  turn  she
telephoned PW-2 Dr. Chandrashekhar informing him about the death of  Dorathi
Kutinho and having brought her dead to the hospital and on  the  request  of
the appellant, a Death Certificate was issued as  if  Dorathi  Kutinho  died
due to cardiac arrest.

7.     It  is  the  further  case  of  the  prosecution   that   immediately
thereafter, the appellant  informed  PW-3  the  foster  brother  of  Dorathi
Kutinho about the death of Dorathi Kutinho  on  account  of  cardiac  arrest
over phone.  PW-3 informed his brother Simon Kutinho, who  was  in  USA  and
body of Dorathi Kutinho was  kept  in  Kasturba  Medical  College  Hospital,
Manipal, awaiting the arrival of Simon  Kutinho  from  USA.   Thereafter,  a
complaint was filed before the Police as per Ex.P-4 which is  registered  as
an UDR complaint suspecting the murder of Dorathi Kutinho and  he  requested
the Police to send body of Dorathi Kutinho  for  Autopsy  to  find  out  the
cause of death.  The case was registered in  UDR  No.5/2006  and  thereafter
Autopsy was conduced by PW-1 Dr. Pradeep Kumar as per Ex.P-1.  Based on  the
postmortem report, PW-8 M.S. Naikar registered a complaint  as  per  Ex.P-11
suo moto on 07.03.2006 in  Crime  No.19/206   for  the  offences  punishable
under Sections 302 and 201 of IPC and thereafter the case  was  investigated
by Udupi Police and charge sheet was  filed against the  appellant  for  the
aforesaid offences.  This  case  has  resulted  in  the  conviction  of  the
appellant, as already noted above.

8.    In order to bring home the  guilt  of  the  accused,  the  prosecution
relied upon evidence of PW-1 to PW-14; Exs.P-1 to P-46 and Mos.1 to 5.   The
accused was also examined by the Court under  Section  313  Cr.P.C.  and  he
denied the incriminating evidence found in the evidence of  the  prosecution
against him.  No defence evidence was led by the  appellant  except  marking
Ex.D-1 a portion of statement of PW-3.

9.    There is a serious dispute about the  cause  of  death.   As  per  the
medical examination, Dorathi Kutinho had  died  unnatural  death,  cause  of
death Asphyxia by smothering.  It is, therefore, claimed to  be  a  case  of
murder.  The defence maintains  that  she  died  natural  death  because  of
cardiac arrest.  Admittedly, there  are  no  eye-witnesses  to  the  alleged
crime and it is a case of circumstantial evidence.  The learned trial  court
held it to be a case of murder.  After analysing the  testimony  of  various
witnesses, it observed that motive could not be elicited directly  from  any
of the witnesses.  However, from the recovery of articles and deposition  of
PW-3, one  could  clearly  find  the  motive  which  the  appellant  had  in
committing the said murder.  The trial court also recorded that the  various
ingredients proved by the prosecution are sufficient to complete  the  chain
of circumstances to come to a definite  and  unerring  conclusion  that  the
appellant must be the person who had committed  the  murder.   The  sessions
court has rested its aforesaid findings by  taking  into  consideration  the
following circumstances:  The execution of Will is not in question.  As  per
PW-14, the recovery of the said articles was from a bed placed in the  Flour
Mill, which was situated in the  same  compound  as  that  of  the  deceased
lady's house.  The bag included gold ear stud; one pendent;  one  gold  rope
chain; the Will; one General Power of Attorney;  one  consent  letter;  bank
certificates.  All the above-mentioned documents were in  the  name  of  the
appellant herein i.e. he was named the  nominee/beneficiary.   PW-10  (Auto-
Rickshaw driver) stated that he had advised a nearby hospital named  Goratti
Hospital but the appellant insisted on going to Adarsha Hospital.   He  also
stated that the appellant was found to be scared  and  was  sweating.   PW-2
(Dr.  Chandrashekhar,  Adarsha  Hospital)  stated  that  the  appellant  had
informed him that the deceased died due to chest pain and requested  him  to
issue a death certificate and to keep the dead  body  in  the  cold  storage
till other relatives of the deceased arrive.  PW-11 is  the  sister  of  the
appellant (extra judicial statement) who turned hostile.  According  to  the
prosecution, it was stated by PW-11 that the appellant had mentioned  it  to
her that the deceased had asked the appellant to marry a Christian  girl  in
order to get the will in his name.  PW-4 stated that the appellant was  like
a son to the deceased lady.  The appellant denied to  answer  the  questions
put to him when examined under Sections 313 Cr.P.C. and so much so  when  he
was asked if he lived with the deceased lady, he even denied that.

10.   The High Court has also upheld the aforesaid conclusion of  the  trial
court by echoing virtually the same reasoning.  It is, inter alia,  observed
that:

(i)   It is not  in  dispute  that  the  appellant  was  residing  with  the
deceased and her mentally retarded brother Rudolph.

(ii)  There was no other  person  except  the  appellant,  deceased      and
Rudolph who were residing in the house of the deceased.

(iii) The appellant was taking care of the deceased and her brother  and  it
was within his knowledge that the deceased had executed a  Will  bequeathing
all her movable and immovable properties  in  his  favour.   Even  Power  of
Attorney was executed in his favour by the  deceased  giving  him  power  to
manage all her  properties.   These  documents  were  not  disputed  by  the
appellant.  Will was found in the possession of the appellant.

(iv)  One of the covenants in the Will was the desire of the  deceased  that
the appellant shall marry a Christian lady.  However, as per  the  testimony
of Sampa Poojarthy (PW-11) who is appellant's sister, the appellant was  not
willing to marry a Christian lady.

(v)   The appellant had not disputed that Dorathi  was  shifted  by  him  in
Adarsha Hospital in auto-rickshaw of PW-10 Roshan Kumar.  Roshan  Kumar  had
received a call from the appellant stating  that  the  deceased  was  in  an
uncomfortable condition and had to be shifted immediately to  the  hospital.
Thus, he came to the house of  Dorathi  and  took  Dorathi  along  with  the
appellant to the hospital in his  auto-rickshaw.   He  deposed  that  though
there was a hospital nearby but the  appellant,  instead,  took  Dorathi  to
Adarsha Hospital which was little away.  This circumstance is  held  against
the appellant with the observation that he wanted to take Dorathi only to  a
hospital of his choice where he could manage the things in his own way.

(vi)  When the appellant reached  with  Dorathi  at  Adarsha  Hospital,  Dr.
Rekha (CW-13) examined Dorathi and found that she  was  brought  dead.   She
informed Dr. G.S. Chandrashekhar (PW-2), the owner of Adarsha  Hospital  and
PW-2 directed Dr. Rekha to issue a certificate.  Thereupon, the  certificate
was issued that death had occurred as a result of cardiac  arrest.   As  per
the prosecution, this certificate  was  issued  giving  aforesaid  cause  of
death just to oblige the appellant considering the relationship between  the
appellant and the deceased.  On the other hand, relying upon  the  testimony
of PW-1 who had conducted an Autopsy on the dead body and  submitted  report
as Exh. P-1, courts below concluded that cause  of  death  was  not  due  to
cardiac arrest but Asphyxia on account of smothering.

(vii) There was recovery of certain documents and  jewellery  items  at  the
instance of the appellant.   Documents  were  in  the  nature  of  Power  of
Attorney and Will which was executed by the deceased.  These  documents  and
jewellery which also belonged to the deceased were  seized  from  the  place
where the appellant was running a service  station.   This  service  station
was in the compound of deceased  house  and  it  is  the  deceased  who  had
allowed the appellant to run a service station  from  the  compound  of  the
house.

11.   Narrating the aforesaid circumstances, the High Court  took  the  view
that Session Judge was right in  holding  that  chain  of  circumstances  is
complete to prove the guilt of the appellant.

12.   Mr. Basant R., learned Senior  Counsel  appearing  for  the  appellant
submitted that in arriving at the aforesaid conclusions,  the  courts  below
had ignored and did not take into account some very  relevant  and  material
aspects of  the  case  which  would  clearly  prove  the  innocence  of  the
appellant.  He went to the extent  of  submitting  that  the  appellant  was
falsely roped in the aforesaid  case  by  the  relatives  of  the  deceased,
particularly Anthony Kutinho (PW-3) and Simon Kutinho (who  lives  in  USA),
as they did not like her sister  giving  away  all  her  properties  to  the
appellant.  With regard to Dr. Chandrashekhar (PW-2),  he  submits  that  if
the appellant  had  any  mala  fide  intentions,  then  he  would  not  have
requested PW-2 to store the body of the deceased and on the  contrary  being
the caretaker of deceased lady's who had also authorised him to perform  the
last rites as per her Will, he would have  gone  ahead  with  the  cremation
himself, more so when even the doctor (CW-13) had testified  that  cause  of
death was cardiac arrest.  With regard to the statement of  Vishwanath  (PW-
14) – Circle Inspector of Police, it is submitted that it  is  important  to
note that articles were recovered from the bag that was  kept  on  the  bed,
placed in the Flour Mill which was in  the  same  house.   He  submits  that
other than gold chain and the earpiece, all other  documents  kept  were  in
his name and he was the  nominee/beneficiary  to  those.   So  there  is  no
reason for him to hide such  articles  and  rather  placing  such  documents
would help him  to  prove  his  case.   Also,  if  the  appellant  had  such
intentions to hide these articles, then why would he hide  it  in  the  same
compound as that of the house of the deceased? He, thus,  argued  that  such
recovery seems more like a story/plot made by the prosecution.  With  regard
to Roshan Kumar (PW-10) an  auto-rickshaw  driver,  learned  Senior  Counsel
agrees to the fact that PW-10 suggested a nearby hospital but  submits  that
in such a critical situation, the appellant opted for the  safer  option  as
the deceased was already getting  treatment  at  Adarsha  Hospital  and  the
doctors at Adarsha Hospital knew the history of the patient  (deceased)  and
hence, thought of it to be  a  more  viable  option.   With  regard  to  the
appellant being nervous and sweating,  he  submitted  that  it  was  not  an
abnormal behaviour as any person, in such a situation,  would  feel  nervous
when his/her dear one is critical.   Hence,  he  submitted  that  inferences
drawn by the courts below from certain circumstances were  clearly  perverse
and many vital aspects were totally overlooked  which  would  clearly  prove
the innocence of the appellant.

13.   The prosecution questions that when a nearby  hospital  was  suggested
to the appellant herein by PW-10, then why did the  appellant  opt  for  the
hospital that was far.  He submits  that  the  appellant  could  have  first
taken the deceased lady to the nearer hospital and once her  state/condition
would have got stable, he could have shifted her to Adarsha  Hospital.   The
prosecution then questions the finding/recovery of the gold  chain  and  the
earpiece from the possession of the appellant hidden in a bed placed in  the
Flour Mill.  It is further submitted that the  appellant  denied  to  answer
the questions put to him when examined  under  Section  313  Cr.P.C.,  which
shows his falsehood.  The learned counsel read out the reasons given by  the
High Court in support of its conclusions and submitted that the findings  of
the trial court and the High Court are correct and should be upheld.

14.   We have already discussed in brief the circumstances  which  persuaded
the trial court as well as the High Court to come  to  the  conclusion  that
Dorathi died unnatural death “cause of death  was  Asphyxia  by  smothering”
and it is the appellant  who  is  responsible  for  causing  the  murder  of
Dorathi.   In  this  scenario,  two   basic   questions   which   fall   for
consideration are as under:

      (i)   Whether Dorathi's demise was on account of cardiac arrest     or
the cause of death was asphyxia as a result of    smothering?
      (ii)  In case Dorathi was  murdered,  whether  the  appellant  is  the
culprit who caused this murder?

15.   We would take up these issues for our discussion  and  conclusions  in
the aforesaid order in which these questions are formulated.   At  the  same
time, we would like to point out that some of the aspects of discussion  are
overlapping as the issues are interrelated and, therefore,  there  would  be
some repeat discussion while answering these questions.

      Answer to Question No.1

16.   So far as cause  of  death  of  Dorathi  is  concerned,  we  have  two
conflicting documentary evidences on record.  On the one hand,  there  is  a
certificate in the form of Ex.P-3 issued by CW-13 Dr.  Rekha  as  per  which
the deceased died of cardiac arrest.  On the other  hand,  we  have  Autopsy
report in the form of  Ex.P-1,  as  a  result  of  postmortem  of  the  body
conducted by PW-1 Dr. G. Pradeep Kumar which claims  that  Dorathi  died  of
Asphyxia  by  smothering.   The  courts  below  have  discarded  Ex.P-3  and
preferred to rely  upon  Ex.P-1.   Reason  given  in  rejecting  the  credit
worthiness  of  Ex.P-3  is  that  Dr.  Rekha  has  purportedly  obliged  the
appellant by issuing said certificate considering the  relationship  between
the appellant and the accused.  The courts below  also  raised  eyebrows  on
the conduct of the appellant in taking the  deceased  to  Adarsha  Hospital,
even when there was another hospital near Goratti, the residential place  of
the deceased.  On this basis, also keeping in view the  statement  of  PW-10
Roshan Kumar who had taken the deceased  and  the  appellant  in  the  auto-
rickshaw, the courts below have refused to chew the  defence  put  forth  by
the appellant that after finding Dorathi in an  uncomfortable  position,  he
had called Roshan Kumar so that he could take  Dorathi  immediately  to  the
hospital for her treatment.

17.   Let us first deal with this aspect  of  the  so  called  abnormal  and
suspicious behaviour of the appellant.  It  is  a  matter  of  record,  even
accepted by the prosecution as well, that the deceased used to  be  examined
by the doctors at Adarsha Hospital as and  when  she  had  medical  problem.
That would mean that the doctors at Adarsha Hospital with whom  Dorathi  was
regular patient knew about the medical condition of Dorathi so  well.   That
is an admitted fact as stated by PW-2 as well.  When we  keep  this  crucial
fact in mind, the choice of the appellant to take her to  Adarsha  Hospital,
by no stretch of imagination, can be termed as so unnatural or  abnormal  so
as to create suspicion about his conduct.  In fact, he  acted  in  the  best
interest of the patient in a manner any reasonable person would.   It  is  a
common case of the parties that Dorathi was an old and infirm woman who  was
suffering from various illness including heart ailment and because  of  this
reason,  he  was  getting  medical  treatment,  on  and  off,  from  Adarsha
Hospital.  It is for this reason while at home, the  appellant  was  nursing
Dorathi and taking absolute care of her.  It  would  be  rather,  a  natural
conduct of any person to take the patient to a doctor under whose  care  and
supervision the patient is already  put,  as  that  doctor  would  be  in  a
position to immediately diagnose  the  ailment,  knowing  well  the  medical
history of the patient.  Therefore, merely  because  there  was  some  other
hospital near Goratti and the appellant did not take  Dorathi  at  the  said
hospital but chose to bring her to Adarsha Hospital, is not  a  circumstance
which would create any doubt about his integrity or conduct.

18.   In so far as issuance of death certificate (Ex.P-3) is  concerned,  it
has come on record that CW-13 Dr. Rekha  had  seen  the  dead  body  of  the
deceased.  She formed the opinion that Dorathi had died of  cardiac  arrest.
She informed PW-2 Dr. G.S. Chandrashekhar about the same and  PW-2  directed
her to issue a certificate to this effect.  PW-2 has  merely  said  that  he
did not examine Dorathi when she was brought to the hospital  and  going  by
this statement alone, PW-3 is discarded.  Since Dr. Rekha examined the  body
and issued the certificate, it is she who was  competent  to  issue  such  a
certificate.  We fail to understand as to from where the inference has  been
drawn that she issued the certificate giving cause of death  as  desired  by
the appellant.  Pertinently, CW-13 is not even examined by the  prosecution.
 No efforts are made to find  out  her  whereabouts.   Therefore,  not  much
reliance can be placed on the fact that PW-2 admitted in his  evidence  that
he had not seen the body of Dorathi, which is neither here nor there.

19.   However, at the same time, we find that after the  postmortem  of  the
dead body was conducted, the cause of death is  mentioned  as   asphyxia  on
account of smothering.   This  cannot  be  lightly  brushed  aside.   Before
adverting to this report (Ex.P-1), it would be necessary to  ease  out  some
creases.  As per the High Court, postmortem is conducted at the instance  of
Dorathi's brother namely Anthony Kutinho (PW-3).  However, in the process  a
very relevant and material aspect is glossed over  and  missed  out  by  the
courts below.  After Dorathi was  declared  dead  at  Adarsha  Hospital  and
certificate (Ex.P-3) was issued by the doctor  (CW-13),  the  appellant  had
informed PW-3 about the said death.  Significantly, it is the appellant  who
suggested the Autopsy of the dead body.  If  it  was  a  case  of  unnatural
death and appellant was responsible for the same, appellant would  not  made
such a suggestion.  In that case, armed with the  certificate  showing  that
deceased had  died  due  to  cardiac  arrest,  he  would  rather  shown  his
eagerness to perform the last rites of the deceased.  He  was  empowered  to
do so by the Will of the deceased herself.  But he did not do so.  It is  on
his suggestion that PW-3 lodged a complaint with the  Police  and  requested
for the postmortem of the deceased. (to be taken from the statement of  PW-2
(doctor) at page 73-74.

20.   There is one more very crucial and critical circumstance  which  needs
to be highlighted at this stage.  Death took place on 1st March,  2006;  UBR
was registered only on 4th March,  2006  and  postmortem  conducted  on  5th
March, 2006.  On that basis, FIR was registered on 7th March,  2006  wherein
it was stated that the 'murder was committed by unknown persons'.  It  shows
that till that time, the appellant was not the  suspect  at  all.   Why  and
under what circumstances he came under cloud and  roped  in  as  an  accused
person, would be dealt with us a little later at an appropriate stage.   For
now, we revert back to the  postmortem  report.   PW-1  is  the  doctor  who
conducted the postmortem and gave  his  report  (Ex.P-1)  in  which  he  has
stated that after the postmortem examination, he gave the 'tentative'  cause
of death as 'cerebral and pulmonary oedema secondary to  smothering'.   This
opinion of his, which is only 'tentative', is based on  his  examination  of
the body whereby he observed  certain  external  injuries.   In  his  cross-
examination, he categorically admitted that the type of contusion  found  on
the body could be caused if that portion came  in  contact  with  rough  and
hard surface.  He also admitted in the cross-examination  that  presence  of
alcohol was found in the dead body.  Therefore, possibility cannot be  ruled
out that after consuming the alcohol, Dorathi  might  have  fallen  and  hit
herself on a rough and hard surface.  This vital portion  of  the  testimony
of the doctor is not even adverted to  and  conveniently  omitted  from  the
discussion.  It would be also relevant to point out at this stage even  PW-2
namely Dr. Chandrashekhar under whose regular treatment  the  deceased  was,
had stated that the deceased had come  to  his  hospital  for  treatment  on
05.11.2005, 08.11.2005 and  25.11.2005.   He  also  categorically  mentioned
that at that time, she was treated  for  hypertension  and  depression.   He
also mentioned that she was an alcoholic and he  had  advised  her  to  quit
drinking.  Even this part of testimony of PW-2 is overlooked by  the  courts
below.

21.   In the aforesaid scenario, it cannot be  said  with  certainty  as  to
whether Dorathi died of smothering or being  a  heart  patient,  the  actual
cause of death was cardiac arrest.  In such circumstances, when there was  a
possibility of both the causes of death, in the absence of  clear  certainty
about the cause, we are of the opinion that High Court  committed  an  error
in not giving benefit of doubt to the accused person.

      Answer to Question No.2

22.   With this, we  now  deal  with  the  second  point  for  consideration
formulated by us above.  We may observe that with our answer  to  the  first
question, itself makes it a case of acquittal giving  benefit  of  doubt  to
the appellant.  Still we are entering into the discussion on  this  question
as the circumstances discussed while dealing with this question  would  show
more signs of innocence of the appellant.

23.   As per the sessions court as well as the High  Court,  complete  chain
of circumstances is established pointing accusing finger  at  the  appellant
and it is proved beyond any reasonable doubt that it is  the  appellant  who
has caused the  murder  of  Dorathi.   The  circumstances  which  are  found
against the appellant are:

      (i)   Motive on the part of the appellant  to  commit  the  murder  of
Dorathi stands established.
      (ii)  Appellant and the deceased were last seen together.
      (iii) Injuries which are found  on  the  body  of  the  deceased  show
unnatural death.  (This aspect is already dealt with by us   above).
       (iv)   Certain  recoveries  are  made  pursuant  to  the   disclosure
statement of the appellant which nail him of the offence.

24.   As far as the company of the appellant  with  the  deceased  and  they
were together is not in dispute so 'last seen' aspect is proved.   In  fact,
the appellant has accepted the same even in his defence when he claims  that
he and Dorathi was in the house when Dorathi had complained  of  chest  pain
and seen her in an uncomfortable position he decided  to  take  her  to  the
hospital.  For this, he called PW-10 Roshan Kumar  and  went  in  his  auto-
rickshaw  to  the  hospital.   However,  we  have  serious  doubts  on   the
establishment of 'motive' attributed to him or the 'recoveries' made on  the
so called disclosure statement of the accused.   In  so  far  as  motive  is
concerned, it is apparent on the face of the record that  the  courts  below
have stretched the facts too far, bordering distortion, to impute motive  on
the part of the appellant.  It has come on record and  in  fact  it  is  the
case of the prosecution itself that  as  there  was  nobody  to  look  after
Dorathi and her mentally challenged brother  Rudolph  Kutinho,  Dorathi  had
brought the appellant to her house as a caretaker.  The appellant  has  been
looking after Dorathi and Rudolph.  It  is  clear  that  he  had  done  this
service to the two needy  persons  with  all  love  and  devotion.   Dorathi
treated him as her son.  She was so happy  and  pleased  with  his  selfless
service that  she  had  decided  to  give  all  her  movable  and  immovable
properties to the appellant.  In order to make this desire  a  reality,  she
had even executed a Will bequeathing all her properties  in  favour  of  the
appellant to the exclusion of all others (which would  include  her  brother
PW-3 and Simon Kutinho).  Will was executed on 5th July,  2005.   This  Will
was kept by Dorathi with the appellant himself which means that Dorathi  had
even disclosed him the said Will.  She had  even  given  her  jewellery  and
documents pertaining to fixed deposits as well  as  investments  in  several
banks and  other  financial  institutions.   In  this  background,  why  the
appellant would commit the  murder  of  Dorathi,  whom  he  look  after  and
treated as his mother, that  too  after  a  period  of  7  months  from  the
execution of the Will.

25.   We find that very curious aspect is attributed  as  a  motive  on  the
part of the appellant.  It is stated that in the Will, a condition  was  put
that the appellant will succeed to the estate of Dorathi only if he  marries
a Christian lady and the appellant who was Hindu by religion  did  not  want
to marry a Christian girl.  This gives rise to an important poser:   whether
killing of Dorathi would have solved this dilemma of the  appellant,  if  at
all such dilemma was there.  Answer  is  to  be  emphatic  'NO'.   Death  of
Dorathi, natural or unnatural, would have the only consequence  of  bringing
the Will as operational.   That  would  not  and  could  not  wipe  off  the
aforesaid condition stated  in  the  Will.   Therefore,  it  can  hardly  be
treated as a motive on the part of the appellant to kill  Dorathi.   On  the
other hand, having regard to very cordial and lovable  relationship  between
the appellant and Dorathi which was as pious as mother and son, it was  very
unlikely that appellant would kill Dorathi even  when  Dorathi  had  already
Willed away her properties in favour of the appellant.  One has to  keep  in
mind another important aspect namely Dorathi was of  advanced  age  and  was
suffering from hypertension, depression and other old age related  ailments.
 Therefore, no purpose could have been achieved by killing such  a  helpless
lady, a little prematurely.

26.   The alleged recoveries  are  nothing  but  make  belief.   We  get  an
uncanny feeling that this aspect is introduced just to make the appellant  a
suspect and thereafter to rope him in a case of murder.  It is a  matter  of
record that Will, documents  relating  to  investments  and  jewellery  were
handed over to the appellant and,  therefore,  they  were  in  his  rightful
possession.  He had not taken away  and  kept  these  things  at  any  other
place.  The so called 'recovery' is from the house itself.  It is  from  the
service station, which is situated  in  the  same  house  where  all  lived.
Therefore, this could not have been a circumstance  from  which  an  adverse
inference is drawn.  We hardly see this to be valid reason  to  suspect  the
appellant.

27.   During arguments, we put a  query  to  the  learned  counsel  for  the
parties as we were curious about the properties of the  deceased  which  she
had bequeathed to the appellant.  A very  disturbing,  but  crucial,  aspect
emerged from the answer given by the parties which  was  that  these  assets
were disposed of by PW-3 and his brother when  the  trial  of  the  case  is
still on and the verdict of guilt had not been  pronounced  by  the  Session
Judge.  This  speaks  volume  about  many  possibilities  and  bolsters  our
conclusion that the appellant is an innocent person who has been  roped  in,
in a false case with a view to rob him of the properties  and  assets  which
Dorathi had Willed to the appellant out of her love and  affection,  to  the
exclusion of all others including PW-3 and his brother who is a resident  of
USA.

28.    We  also  inquired  about  the  whereabouts  of   Rudolph,   mentally
challenged brother of Dorathi.  The answer was equally startling.   We  were
informed  that  within  few  months  of  Dorathi's  death,  he  also   died.
Obviously, with the appellant in jail, there was nobody to  look  after  and
take care of Rudolph.  His foster brother Anthony Kutinho (PW-3)  and  other
brother Simon Kutinho (resident of America) did not care to look after  him,
after the arrest of the appellant.

29.   We are conscious of the fact that with the aforesaid analysis  of  the
evidence, we  have  interfered  with  the  findings  of  the  courts  below.
However, having regard to the seriousness of the nature of imputation,  viz.
that of murder, coupled with the fact that findings of the courts below  are
the result of ignoring vital material and unsustainable inferences, such  an
exercise is permissible under the law.  Permissibility of such a  course  of
action is supported by various judgments of this Court, some  of  which  are
taken note of below.

30.   In Sham Sunder v.  Puran  &  Anr.,  (1990)  4  SCC  731),  this  Court
observed that such an  exercise  would  be  justified  for  the  purpose  of
satisfying itself that the grave injustice had not  resulted  in  the  case.
We quote hereinbelow the following observations from that case:

“2.  It is true that the High Court is entitled to reappraise  the  evidence
in the case.  It is also true that under  Article  136,  the  Supreme  Court
does not ordinarily reappraise  the  evidence  for  itself  for  determining
whether or not the High Court has come to a correct conclusion on facts  but
where the  High  Court  has  completely  missed  the  real  point  requiring
determination and has also on erroneous  grounds  discredited  the  evidence
and has further failed  to  consider  the  fact  that  on  account  of  long
standing enmity  between  the  parties,  there  is  a  tendency  to  involve
innocent persons and to exaggerate and lead prejudged evidence in regard  to
the occurrence, the Supreme Court would  be  justified  in  going  into  the
evidence for the purpose of satisfying itself that the grave  injustice  has
not resulted in the case.”


31.   Further in Khilli Ram v. State of  Rajasthan,  when  the  Court  found
that certain features were overlooked by the  courts  below,  there  was  no
jurisdictional bar in finding out whether the prosecution case could at  all
be accepted, and we would be well advised to reproduce paragraphs 4  and  13
from the said judgment, which read as under:

“4.  There are certain features in this  case  which  appear  to  have  been
overlooked both by the trial Court as also the High Court.   The  two  panch
witnesses have not only turned  hostile,  but  have  disclosed  facts  which
support the defence version of the incident.  PW. 2, the decoy  witness  has
stated facts  which  probabilise  the  defence  stand.   Even  the  literate
Constable PW. 7 who has not been declared hostile has supported the  defence
version.  The place and the maner in which the bribe is said  to  have  been
offered and received make the prosecution story totally opposed to  ordinary
human conduct – a feature which the two Courts have overlooked.  We  are  of
the opinion that this is a case where the evidence has  to  be  looked  into
with a view to finding out whether  the  prosecution  case  can  at  all  be
accepted.  The restriction on appreciation  of  evidence  in  an  appeal  by
special leave is a self-imposed one and is not a jurisdictional bar.   While
we reiterate that ordinarily this Court would refrain from re-examining  the
evidence, in a case where serious injustice would be done  if  the  evidence
is not looked into it would not be proper for the Court  to  shun  attention
by following the self-imposed restriction.

                                      XX   XX    XX

13.  We are prepared to agree with Counsel for the State of  Rajasthan  that
ordinarily a case of this type is difficult to prove and the law is  settled
that even the uncorroborated testimony of trap witnesses can be  acted  upon
as indicated by this Court in the case of  Prakash  Chand  v.  State  (Delhi
Administration), 1979 Cri.L.J. 329 and  Kishan  Chand  Mangal  v.  State  of
Rajasthan, (1983) 1 SCR 569, but in the present case  the  evidence  of  the
panchas is  not  available  to  support  the  prosecution  case.   There  is
discrepancy in many material aspects.  The prosecution story is  opposed  to
ordinary human conduct.  The discrepancies go to the root of the matter  and
if properly  noticed  would  lead  any  court  to  discard  the  prosecution
version.  Without powder treatment, for the absence of which no  explanation
has been advanced, the prosecution story becomes liable to be rejected.   An
overall assessment of the matter indicates that the story  advanced  by  the
prosecution is not true and the defence version seems to be  more  probable.
In these circumstances we are of the view that sufficient material has  been
brought out to merit interference in this appeal.  We allow the appeal,  set
aside the conviction of the appellant and acquit him.  He is discharge  from
his bail bond.”

32.   Yet again in Suryamoorthi & Anr. v. Govindaswamy & Ors., (1989) 3  SCC
24, the Court observed that discretion  conferred  by  Article  136  of  the
Constitution is wide enough to permit this Court to interfere even on  facts
in suitable cases if the approach of the courts below had resulted in  grave
miscarriage of justice.

“13.  The learned counsel for the  accused  submitted  that  we  should  not
disturb the concurrent findings of fact recorded by  both  the  Courts.   We
are  conscious  of  the  fact  that   ordinarily   this   Court   exercising
jurisdiction under Article 136 of the Constitution is slow  in  substituting
its findings of fact in  place  of  those  recorded  by  the  courts  below.
However, this does not mean that this Court has no  power  to  do  so.   The
discretion conferred by Article 136 of the Constitution is  wide  enough  to
permit this Court to interfere even  on  facts  in  suitable  cases  if  the
approach of the courts below has resulted in grave miscarriage  of  justice.
By  way  of  self-imposed  discipline,  this  Court  does   not   ordinarily
reappreciate or reassess the evidence unless  it  is  of  opinion  that  the
approach  of  the  courts  below  has  resulted  in   failure   of   justice
necessitating correction.  If the courts below  have  misread  the  evidence
resulting in miscarriage of justice it becomes the duty  of  this  Court  to
interfere in the interest of administration of justice.  In  our  view,  the
present is one such case which calls for interference.  The approach of  the
courts below in doubting the capacity of PWs 1 and 2 to possess Rs. 73,600/-
 and requiring them to prove how PW 2 had over a period of  10  years  saved
the said amount notwithstanding the  find  of  Rs.33,600/-,  was  wrong  and
resulted in an erroneous conclusion.”


33.   Legal position, explaining the  contours  and  width  of  power  under
Article 136 of the Constitution was narrated in detail in  Mahesh  Dattatray
Thirthkar v. State of Maharashtra, (2009) 11 SCC 141.  After taking note  of
earlier precedents explaining the scope of Article 136 of the  Constitution,
position was summarised in para 22 and we reproduce the same:

“22.  From a close examination of the principles laid down by this Court  in
the aforesaid series of  decisions  as  referred  to  herein  above  on  the
question of exercising power to interfere with  findings  of  fact  by  this
Court under Article 136  of  the  Constitution,  the  following  principles,
therefore, emerge:

The powers of this Court under Article 136 of the Constitution of India  are
very wide.


It is open to this Court to interfere with the findings  of  fact  given  by
the High  Court  if  the  High  Court  has  acted  perversely  or  otherwise
improperly.

When the evidence adduced by the parties  in  support  of  their  respective
cases fell short of reliability and acceptability and as such it  is  highly
unsafe and improper to act upon it.

The appreciation of evidence and finding is vitiated by any error of law  of
procedure or found contrary to the principles of natural justice, errors  of
record and misreading of the evidence, or where the conclusions of the  High
Court are  manifestly  perverse  and  unsupportable  from  the  evidence  on
record.

The appreciation of evidence and finding results in serious  miscarriage  of
justice or manifest illegality.

Where findings of subordinate courts are shown to be “perverse or  based  on
no evidence or irrelevant evidence  or  there  are  material  irregularities
affecting the said findings or  where  the  court  feels  that  justice  has
failed and the findings are likely to result in unduly excessive hardship.



When the High Court has redetermined a fact in issue in a civil appeal,  and
erred in drawing interferences based on presumptions.

The judgment was not a proper judgment of reversal.


34.   The result of the aforesaid discussion would be to allow this  appeal,
giving the  appellant  benefit  of  doubt.   The  appellant  is  accordingly
acquitted of the charge.  He shall be released forthwith.


                             .............................................J.
                                                            (J. CHELAMESWAR)



                             .............................................J.
                                                                (A.K. SIKRI)

New Delhi;
October 14, 2014.

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