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.
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.
