TMI Blog2010 (8) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Trial Court had doubts regarding the veracity of the depositions of Jaison (PW.4), Davis (PW.5), and Xavior (PW.7), being friends of Benny (PW.10). The Trial Court, in fact, had an advantage to watch the demeanour of the witness and was in a better position to evaluate their credibility. Thus, the High court ought not to have reversed the judgment of the Trial Court. In fact, the High Court has erred in emphasising that onus to prove his innocence was on the appellant. It could not be the requirement of law. In fact the prosecution has to prove its case beyond reasonable doubt. In the case of circumstantial evidence the burden on prosecution is always greater. In view of the above, the judgment and order of the High Court in Criminal Appeal is hereby set aside and judgment and order of the Trial Court is restored. The appellant be released forthwith if he is in custody and not wanted in any other case. The appeal is allowed accordingly. - P. Sathasivam B.S. Chauhan, JJ. JUDGMENT Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the judgment and order dated 5.8.2008, passed by the High Court of Kerala, at Ernakulam, in Criminal Appeal No.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the shop of Xavior (PW.7), who was dealing with jewellery as well as Sodium Cyanide. Xavior, PW.7 made a statement that the appellant had procured 1 Kg. Sodium Cyanide from him between 25.5.2000 and 27.5.2000. The post mortem report revealed that Sweety died of Cyanide poisoning. As per the statement of Omana Poulose (PW.9), mother of the deceased Sweety, the poison was given to Sweety by the appellant under the guise of giving her an ayurvedic contraceptive medicine. Paily (PW.21), the Investigating Officer completed the investigation and submitted a charge sheet against the appellant for the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter called as `IPC'). The appellant pleaded not guilty to the charge of murder and claimed trial. The prosecution examined 21 witnesses in support of its case. Appellant in his statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.') stated that he was innocent and there was a possibility of the involvement of Benny (PW.10), who had misbehaved with Sweety and had sexual intercourse with her on 31.05.2000 when the couple was staying with him. More so, Sweety might have com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had to establish the motive for crime. The test for proving a case of circumstantial evidence stands entirely on a different footing, than a case of direct evidence. The judgment of Trial Court did not warrant any interference. Appeal has merit and deserves to be allowed. 5. Per contra, Shri R. Sathish, learned counsel appearing for the State has vehemently opposed the appeal contending that no one else except the appellant had an opportunity to commit the offence as he was fully aware that Cyanide is used for purification and colouring of gold jewellery and he succeeded in procuring Sodium Cyanide from Xavior (PW.7). The Trial Court had wrongly dis-believed all the prosecution witnesses. The High Court had re-appreciated the entire evidence and recorded a finding of guilt which does not warrant interference by this Court. Appeal lacks merit and is liable to be dismissed. 6. We have considered the rival submissions made by learned counsel for the parties and perused the record. LEGAL ISSUES: (I) Appeal against Acquittal : 7. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755). 10. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sessions Court and the High Court have recorded an order of acquittal. 14. A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401. 15. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 16. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence , or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully established. They are : (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or should' and not `may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 20. A similar view has been re-iterated by this Court in State of U.P. v. Satish, (2005) 3 SCC 114; and Pawan v. State of Uttaranchal (2009) 15 SCC 259. 21. In Subramaniam v. State of Tamil Nadu, (2009) 14 SCC 415, while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruments Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden on proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution. (Vide: Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16; Narendra Singh v. State of M.P., AIR 2004 SC 3249; Rajesh Ranjan Yadav v. CBI, AIR 2007 SC 451; Noor Aga v. State of Punjab Anr., (2008) 16 SCC 417; and Krishna Janardhan Bhat v. Dattatraya G. Hegde, AIR 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and under that guise he had given her Sodium Cyanide. Omana Poulose (PW.9) and Sini (PW.2), mother and sister of deceased Sweety deposed that there were three calls from outside by the appellant to Sweety just to know as to whether she had taken the said medicine. As per their evidence, two of the said three telephone calls i.e. 1st and 3rd calls were attended to by the deceased, Sweety. In the first call, the appellant had scolded the deceased for not taking a bath. When the appellant called the second time, he was informed that the deceased was taking a bath and he disconnected the phone. In the final call, the deceased spoke to the appellant and subsequently, she informed her mother that the appellant had called to check if she was going to sleep and whether she had taken the contraceptive medicine before sleeping. In her evidence, Omana Poulose (PW.9) further stated that the deceased had whispered to herself Why a person who has gone to bed is called back and told again to sleep . The Trial Court has observed that this would indicate that as per the prosecution's version of events, the deceased had already taken the medicine containing Cyanide before attending the thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h were sister and mother of the deceased Sweety and had inimical feelings towards the appellant since they have come to the conclusion that the appellant was responsible for her death and their deposition had material improvements from their statements recorded during investigation. The Trial Court had further observed that there was a further irregularity surrounding the investigation into the alleged phone calls. In his evidence, Krishnan (PW.14) has stated that the telephone booth was computerised and that there would have been records of the phone calls that had been made on the given day (indicating what time, the calls had been made and to what phone number, they had been made). The Investigating Officer made no attempt to recover the said records nor did he make an attempt to examine the employer of Krishnan (PW.14), who received a copy of these records every month. The High Court has failed to notice the above-said observations of the Trial Court. Krishnan (PW.14) was examined by the police on 17.6.2000 when he stated: In a day an average of 70 to 80 persons may come there to make telephone calls. On such time it was computerized. Once a person makes a call, the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 2000, from Xavior (PW.7). Namdev (PW12) stated that it was known to Jaison (PW.4) who had asked him for cyanide for one of his friends. Namdev (PW.12) did not name the appellant at all. It is nobody's case that the appellant has any type of acquaintance with Xavior (PW.7). According to Xavior (PW.7), he was running an institution, namely, C.P. Sons Engraving and Electroplating. Appellant had met him twice in the last week of May, 2000 and asked him for 1 kg. Sodium Cyanide as he had started a jewellery shop. The witness gave him 1 Kg. sodium cyanide after taking the payment. He was interrogated by the police after a month. The witness has admitted that he had no licence to deal with sodium cyanide and was not maintaining any account/record of its sale. It was a totally illegal activity on his part. He was not able to explain what was the source of supply to him. He simply stated that he used to purchase it from Tamilians. Xavior (PW.7) supplied 1 Kg. sodium cyanide to the appellant without making a receipt. He could not reveal the amount he had taken. It is strange that a dealer, indulging in an illegal business has trusted an unknown person and supplied him such a huge qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Omana Poulose (PW.9), mother of the deceased had been in contact of Benny (PW.10) continuously. In spite of the fact that Benny (PW.10) did not talk to her in spite of two-three calls on 31.5.2000 when appellant and Sweety were staying with him, on the date of incident, Smt. Omana Poulose (PW.9) still telephoned Benny (PW.10) at about mid-night and informed him about the unfortunate incident. It is even admitted by Benny (PW.10) in his examination-in-chief that on the same night Sweety's mother telephoned him and told that Sweety was not getting up even after they had tried their best to wake her. After opening the door, Babu, the appellant and his father-in-law took her to the hospital. Immediately after receiving a telephone call at mid-night, Benny (PW.10) had left for Chalakudy from Kozhikode and had reached Thrissur. He telephoned and came to know that Sweety had died. No explanation could be furnished by Omana Poulose (PW.9), mother of the deceased as to what was the occasion to inform Benny (PW.10) at mid-night except that he was a good friend of the appellant. Undoubtedly, there were good relations between the two, otherwise the appellant could not have gone to his hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not clear. I doubted that at Kozhikkode Sweety was harassed physically and mentally and in order to hide it, somebody might have done something. It is apparent that the role of Fr. Johnson G. Alappat (PW.8) was not such that may inspire confidence. Instead, he gave a new theory from his own imagination as it was nobody's case that the couple stayed at Kozhikode for seven days. Had it been so, four injuries on the face, at least, could have been noticed by her family members just on her arrival. Medical evidence has been that injuries found on the person of the deceased could be caused because of fall after consumption of cyanide. The Trial Court dis-believed Sini (PW.2), the sister and Omana Poulose (PW.9), mother of the deceased taking into consideration the fact that they and had made improvements to the extent that their statements were inconsistent with the statement recorded by the I.O. under Section 161 Cr.P.C. The well reasoned judgment of the Trial Court has been reversed by the High Court without giving proper reasoning and without realising that it was a case of circumstantial evidence. No motive was attributed except that Benny (PW.10) had deposed that appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eracity of the depositions of Jaison (PW.4), Davis (PW.5), and Xavior (PW.7), being friends of Benny (PW.10). The Trial Court, in fact, had an advantage to watch the demeanour of the witness and was in a better position to evaluate their credibility. Thus, the High court ought not to have reversed the judgment of the Trial Court. The High Court observed as under: .....that it was the accused and the accused only who could have caused her to take the poison. The above circumstances clearly point only to the guilt of the accused and no circumstance has been brought to our notice, which is inconsistent with his guilt..... . (emphasis added) In fact, the High Court has erred in emphasising that onus to prove his innocence was on the appellant. It could not be the requirement of law. In fact the prosecution has to prove its case beyond reasonable doubt. In the case of circumstantial evidence the burden on prosecution is always greater. 37. In view of the above, the judgment and order of the High Court impugned herein dated 5.8.2008 in Criminal Appeal No.908 of 2004 is hereby set aside and judgment and order of the Trial Court dated 8.4.2003 is restored. The appellant be relea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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