BABU v. STATE OF KERALA

Judgment

9 S.C.R. 1039 BABU v. STATE OF KERALA (Criminal Appeal No. 104 of 2009) AUGUST 11, 2010 A B [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] Penal Code, 1860 - s. 302 - Prosecution case that husband murdered his wife by giving her sodium cyanide - Charge framed u/s. 302 - Acquittal by trial court - However, C conviction by High Court - On appeal, held: Prosecution has to prove its case beyond reasonable doubt - No direct evidence regarding taking or administering the poison to deceasecJ - All circumstances raising doubts - Failure of prosecution to establish that husband made phone calls to D the residence of deceased prior to the incident - Sodium Cyanide not recovered from husband nor remaining amount· of ayurvedic contraceptive medicine that husband allegedly mixed Cyanide in., recovered - In case of circumstantial evidence, motive must be established at least to certain extent E - Material contradiction in the prosecution case, thus, motive could not be proved - Thus, order of conviction by High Court .set aside and judgment of trial court restored - Circumstantial Evidence - Burden on prosecution to prove its case - Motive - Appeal against acquittal - Scope of - Power of appellate F court - Explained. According to the prosecution case, the appellant- h usband persuaded his wife to take an ayurvedic contraceptive medicine and under the guise he gave her Sodium Cyanide. The appellant was charge sheeted uls. G 302 IPC for murdering his wife by giving her Sodium Cyanide. The trial court acquitted the appellant. However, the High Court reversed the order of acquittal. Therefore, the appellant filed the instant appeal. 1039 H 1040 SUPREME COURT REPORTS [2010] 9 S.C.R. A Allowing the appeal, the Court HELD: 1. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court B may be more, probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is C entitled to consider whether in arriving at a finding of fact, the trial court failed to take into consideration admissible evidence and/or look into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. [Para 7] [1056-E-H] D Balak Ram v. State of U. P. AIR 197 4 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shai/endra Pratap & Anr. v. State of UP. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh E Singh & Ors. v. State of UP. AIR 2006 SC 2500; State of UP. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (DJ 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 F 98; Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445; Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; G Sambasivan and Ors. v. State of Kera/a (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M. P. (2002) 4 SCC 85; State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755, relied on. Sheo Swarup and Ors. v. King Emperor AIR 1934 PC H BABU v. STATE OF KERALA 1041 227; Chandrappa and Ors. v. State of Karnataka (2007) 4 A SCC 415; Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450; State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368; State of Uttar Prades.h v. Banne alias Baijnath & Ors. (2009) 4 SCC 271; Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401, referred to. B

2.1. 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 C 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. [Para 15] [1060-8-D] D

2.2. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at 1 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 E weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. [Para 16] [1060-E-F] Rajinder Kumar Kindra v. Delhi Administration AIR 1984 SC 1805; H.B. Gandhi & Ors. v. Gopi Nath & Sons 1992 supp. (2) SCC 312; Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341; Gaya Din (D) thr. Lrs. & Ors. v. Hanuman Prasad (D) thr. Lrs. & Ors. AIR 2001 SC 386; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary (2009) 10 SCC 636, relied on. G F Ku/deep Singh v. Commissioner of Police & Ors. AIR 1999 SC 677, referred to.

#3. When a case rests upon circumstantial evidence, H 1042 SUPREME COURT REPORTS [2010] 9 S.C.R. A 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 B 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 c and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with i.he guilt of the accused but should be inconsistent with his innocence. [Para 18] [1061-C-G] D Krishnan v. State represented by Inspector of Police (2008) 15 sec 430, relied on. Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622; State of U. P. v. Salish, (2005) 3 SCC 114; E Pawan v. State of Uttaranchal (2009) 15 SCC 259; Subramaniam v State of Tamil Nadu (2009) 14 SCC 415; Ramesh v. State of Rajasthan (2009) 12 SCC 603, referred to. F

4.1. 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 G 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. The motive loses all its importance in a case where direct evidence of eyewitnesses is available. The absence of motive in a H case depending on circumstantial evidence is a factor BABU v. STATE OF KERALA 1043 that weighs in favour of the accused. [Paras 22 and 23] A [1063-B-G]