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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

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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.

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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

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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

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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

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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

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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:

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(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.

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(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,

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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

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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

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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

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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

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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

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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

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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.

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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.

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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 7 th 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

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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

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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

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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

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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

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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

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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.

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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

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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.”

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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

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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.

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• 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.