TaxTMI 
TaxTMI 
2010 (8) TMI 1006
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....nt at Ollur and they came back to Chalakudy on 17.5.2000, as the parents of Sweety had arranged a reception for them at their house. The couple stayed there for two days and left for Kozhikode on 19.5.2000 and stayed in the house of Benny (PW.10), a friend of the appellant. The couple came back on 22.5.2000 to Chalakudy, the family house of the deceased, Sweety. The couple again went to Kozhikode on 30.5.2000 to attend the marriage of Benny (PW.10) with one Seethal, which was scheduled to be held on 31.5.2000 and returned to Chalakudy, at 4.00 p.m. on 1.6.2000. The appellant left Sweety at her parent's house and went to Amala Hospital to meet his sister and mother as his mother had undergone an operation for cancer and was convalescing. The appellant returned to Sweety's house at about 10.30 p.m. and found that door of her room was bolted from inside and there was no response on calling to her. The door was broke opened by the appellant and Sweety's father. Sweety was found unconscious lying on the floor. She was taken to the Government Hospital, Chalakudy, where she was declared dead by the doctors. Poulose (PW.1), father of the deceased lodged an F.I.R. on 2.6.2000 at....
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....he garb of it being an oral contraceptive. There was no question of dis-believing all the prosecution witnesses including the parents and sister of the deceased, Sweety. Appellant was unhappy with the deceased for her non-cooperation in carnal intercourse. Therefore, all the circumstances necessary to record a finding of guilt against the appellant stood proved by the prosecution. The High Court, vide impugned judgment and order dated 5.8.2008, accepted the State's appeal and reversed the judgment and order of acquittal dated 8.4.2003 passed by the Trial Court. Hence, this appeal. 4. Shri Venkat Subramonium T.R., learned counsel appearing for the appellant, has submitted that the High Court should not have interfered with the judgment and order of acquittal by the Trial Court in a routine manner. The findings of the Trial Court could not be held to be perverse, being based on irrelevant material i.e. evidence on record. The Trial Court had rightly dis-believed the prosecution witnesses as it had an opportunity to watch their demeanour in the court, and to assess their credibility. The acquittal by the Trial Court bolstered the presumption of innocence of the appellant. Howev....
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....ng placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445). 8. In Sheo Swarup and Ors. v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: "...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate....
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....this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 12. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused." 13. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes: i) The High Court's decision is based on totally erroneous view of law by ignoring the settled leg....
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....t upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (II) Case of Circumstantial Evidence : 18. In Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430, this Court after considering large number of its earlier judgments observed as follows: "This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of ....
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....ined the importance of motive in cases of circumstantial evidence and observed: ".......the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction." 23. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favou....
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....appellant stayed with his brother at Ollur on 26th/27th May, 2000 as he was not feeling well. Omana Poulose (PW.9), mother of the deceased had gone to his brother's house on 27.5.2000 to know the health condition of the appellant's mother as she was suffering from cancer and was to be operated on 30.5.2000. At the instance of the deceased and Omana Poulose, (PW.9), the appellant along with deceased Sweety attended the marriage of Benny (PW.10) on 31.5.2000 at Kozhikode. Immediately after the marriage of Benny (PW.10), his wife Seethal had gone to her parents' house as there was some problem because it was a love marriage and her family members were not happy with the marriage and did not participate in the marriage on 31.5.2000. When the appellant and deceased Sweety were staying with Benny (PW.10), the appellant had taken liquor and had gone outside to make a call to his employer in the Gulf and when he came back after some time he saw the deceased and Benny (PW.10) in a compromising position and did not like the situation. Therefore, the appellant confronted deceased Sweety and she had told him that Benny (PW.10) had forcibly done it. All these explanations h....
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....severe difficulties at that time. By the time, she attended the last call, she should have vomited already and corrosion would have already occurred in her mouth. But nothing of that sort had occurred. The High Court disbelieved the version of events described by the appellant in his statement made under Section 313 Cr.P.C., wherein, he stated that the deceased Sweety might have taken cyanide from the Almirah of Benny (PW.10). The High Court observed that had she taken the cyanide at Benny's residence at Kozhikode "she would have died within a few minutes." The Trial Court came to the finding of fact that this aspect of the prosecution's case had not been sufficiently established. The High Court failed to notice this finding of the Trial Court. 28. The evidence given by the Telephone Booth Operator, Krishnan (PW.14) had been to the extent that the appellant had gone to his booth and telephoned someone. He stated that he could only be sure that the accused had come once or twice around the incident. He further stated that normally the people dial the telephone on their own and that there was a separation between his seat and the place from where the appellant had made the....
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....before the court. In case, the High Court as well as the trial Court found Krishnan (PW.14) to be unreliable and Paily (PW.21), the I.O. did not make any reference to Krishnan (PW.14), nor any record of the computerised call sheet was produced in evidence, only the statements of Sini (PW.2) and Omana Poulose (PW.9) existed to further the prosecution's theory that the appellant made three phone calls on the day of the incident. Sini (PW.2) and Omana Poulose (PW.9) might have an inimical attitude towards the appellant after thinking that appellant was responsible for Sweety's death. The prosecution has failed to establish that the appellant made three phone calls to the residence of the deceased prior to the incident. 29. We are of the opinion that all of the aforesaid circumstances raise great doubts about the prosecution's theory regarding the three phone calls by the appellant to the residence of the deceased on the evening of the incident, being an indication of the anxiety of the appellant. Thus, the very genesis of the case stands falsified. 30. Admittedly, the appellant and deceased were staying with Benny (PW.10) on 30-31.5.2000. Omana Poulose, mother of the....
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....Further, the appellant was an employee of Alukkas Jewellery which had branches in Kerala and he could have easily procured the Sodium Cyanide from there . 32. There is ample evidence on record to show that Jaison (PW.4), Davis (PW.5) and Namdev (PW.12) were known to and friends of Benny (PW.10). Benny (PW.10) had himself indulged in the business of cleaning and colouring jewellery, and thus, knew how to use Sodium Cyanide. To kill a person, a small quantity of a few milligrams is enough. This means that as per the prosecution's case, almost an entire one kilogram of sodium cyanide should have still been with the appellant. In this context it is pertinent to note that no recovery of Sodium Cyanide had been made from the accused. Nor has there been any recovery of the remaining amount of the ayurvedic contraceptive medicine that the appellant was alleged to have mixed the cyanide in. In the instant case, the inquest was conducted on 2.6.2000 by L.K. Somanathan, Tahsildar (PW.18) and the clothes worn by the deceased were preserved which included Churidar Bottom (M.O.1), Bathing Towel (M.O.2), Chuddy (M.O.3), Brasiere (M.O.4) and Churidar Top (M.O.5). There is no explanation by ....
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....he house. Fr. Johnson G. Alappat (PW.8), the Priest had come about 12.30 at night and he was the first person to see the glass with white material on Almirah. The inquest in the case started on next day. As per Fr. Johnson Alappat (PW.8), it was a white colour material, but the analyst's report reveal that it was a yellowish colour. Two glasses and a container etc. were recovered and they were marked as MOs. 4, 6, and 8. The recovery was made on 2.6.2000. Admittedly, the said material was produced before the Magistrate in Court only on 8.6.2000. Therefore, it remained in the custody of Investigating Officer for 6 days. There is no evidence on record to show that said material had been kept under the sealed cover. According to the deposition of Fr. Johnson G. Alappat (PW.8), the room was open and a large number of persons i.e. about 25 persons were there. He was informed by Sini (PW.2), sister of the deceased Sweety about the three phone calls made by the appellant on that day. He deposed that the appellant had talked to him for about half an hour and disclosed that "he loved one Della and hence, it was the cause of Sweety's death." In fact, it also came i=n evidence that th....
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.... behest of the appellant. There is absolutely no explanation that has been provided for why the deceased, Sweety, would have taken a contraceptive if she was not having sexual relations with her husband or anyone else. In any event, it should be noted that the judgment of the trial court found that Benny (PW.10) also stated in his testimony that the deceased, Sweety, had agreed to have intercourse with the appellant. The couple could live together only for a period of two weeks, such a short span of time is not enough to record a finding on personal relations between husband and wife. Even otherwise, if the deceased Sweety had such attitude, she could have told her mother Omana Poulose (PW.9), on being asked by her, as to what precaution she had been taking for avoiding pregnancy. In view of such material contradictions in the case of the prosecution, we are of the opinion that the prosecution has been unable to establish a motive in the instant case. 35. In view of the fact that Benny (PW.10) had developed intimacy with the deceased Sweety and her mother and while travelling in a car he had fed Sweety with his hands while the appellant was asleep and there had been some untowar....