REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 104 of 2009

Babu   …Appellant

Versus

State of Kerala        …Respondent

J U D G M E N T

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.908 of 2004, reversing the  

judgment of acquittal dated 8.4.2003 recorded by the Sessions  

Court, Thrissur in Sessions Case No. 242 of 2001, wherein the  

appellant was charge sheeted for murdering his wife, Sweety,  

by giving her Sodium Cyanide.  

2. This  is  a  most  unfortunate  case,  in  which,  a  young,  

B.Com  2nd year  student,  Sweety  died  under  mysterious  

circumstances within 15 days of her marriage in her parent’s  

house at Chalakudy.  The appellant, Babu, is post-graduate  

and at relevant time had been employed in the Gulf in a firm,  

namely, Alukkas Jewellery dealing with golden Jewellery. The  

couple, after marriage on 15.5.2000, stayed for two days with  

the brother of the appellant 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  

2

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 7.00 a.m. and it was  

registered  as  Crime  No.  242  of  2000.  The  inquest  was  

conducted on the same day  and post mortem was conducted  

on 3.6.2000, and the deceased was buried thereafter.  Paily  

(PW.21), the Deputy Superintendent of Police while conducting  

the investigation of the case received information that just few  

days prior to the incident the appellant had procured Cyanide,  

thus, he was arrested on 26.6.2000. An alleged confessional  

statement was made by the appellant that he had purchased  

Sodium Cyanide  from  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.  

3

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 committed suicide because of feelings of  

guilt  for  that  reason.  The  Trial  Court  dis-believed  the  

prosecution  witnesses  and  acquitted  the  appellant  vide  

judgment and order dated 8.4.2003.  

4

3. The High Court considered the submissions made by the  

prosecution  that  the  appreciation  of  evidence  by  learned  

Sessions Judge was not proper one, thus, the findings of fact  

recorded by the Trial Court were perverse. The circumstances  

proved,  ruled  out  the  possibility  of  suicide.  The  medical  

evidence  proved  beyond  doubt  that  the  deceased  died  of  

Cyanide poisoning. Nobody except the appellant had procured  

the  Cyanide  poison  and  the  appellant  had  persuaded  the  

deceased Sweety to take it under the 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.  

5

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. However, the High Court erred gravely holding that  

the circumstances pointed out to the guilt of the appellant and  

no circumstance had been brought to the notice of the court  

which  was  inconsistent  with  his  guilt.   More  so,  while  

reversing the judgment of acquittal as recorded by the Trial  

Court,  the  High  Court  imposed  a  fine  of  Rs.  1,00,000/-  

(Rupees  one  lac)  on  the  appellant  which  was  totally  

unwarranted. There was no direct evidence in the case.  It was  

a case of circumstantial evidence, thus, the prosecution had to  

establish the motive for crime.  The test for proving a case of  

6

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.  

7

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 Trial Court.     

      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  may  be  more,  the  

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 entitled to consider  whether in arriving at a  

finding  of  fact,  the  trial  Court  had  failed  to  take  into  

consideration  admissible  evidence  and/or  had  taken  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. (Vide Balak  

Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir &  

8

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   court in disturbing a finding of fact arrived at   by a Judge who had the advantage of seeing  the witnesses....”

9

9. The  aforesaid  principle  of  law  has  consistently  been  

followed by this Court. (See: 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;  

Sambasivan and Ors. v. State of Kerala  (1998) 5 SCC 412;  

Bhagwan Singh and Ors. v.  State of M.P. (2002) 4 SCC 85;  

and State 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   

1

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  of  the  accused.  Firstly,   the presumption of innocence is available to him  under  the  fundamental  principle  of  criminal   jurisprudence  that  every  person  shall  be  presumed to  be  innocent  unless  he  is  proved  guilty  by a competent court of  law.  Secondly,   the  accused having  secured his acquittal,  the   presumption  of  his  innocence  is  further  reinforced, reaffirmed and strengthened by the  trial court.

(5)  If  two  reasonable  conclusions are  possible  on  the  basis  of  the  evidence  on  record,  the   appellate court should not disturb the finding of   acquittal recorded by the trial court.”

11. In Ghurey Lal v. State of Uttar Pradesh  (2008) 10 SCC  

450,  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  

1

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 legal  position;

ii)  The  High  Court's  conclusions  are  contrary  to  evidence and documents on record;

1

iii) The entire approach of the High Court in dealing  with  the  evidence  was  patently  illegal  leading  to  grave miscarriage of justice;

iv) The High Court's judgment is manifestly unjust  and unreasonable based on erroneous law and facts  on the record of the case;

v) This Court must always give proper weight and  consideration to the findings of the High Court;

vi)  This  Court  would  be  extremely  reluctant  in  interfering  with  a  case  when  both  the  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  

1

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  

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;  Aruvelu & Anr. (Supra);  

and Gamini Bala Koteswara Rao & Ors. v.  State of Andhra  

Pradesh thr. Secretary (2009) 10 SCC 636).   

17. In Kuldeep Singh v. Commissioner of Police & Ors. AIR  

1999 SC 677,  this Court held that if a decision is arrived at  

on the basis of no evidence or thoroughly unreliable evidence  

1

and no reasonable person would act 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  

1

incapable  of  explanation  of  any  other  hypothesis than that of the guilt of the accused  and  such  evidence  should  not  only  be  consistent  with  the  guilt  of  the  accused  but  should be inconsistent with his innocence. (See  Gambhir v. State of Maharashtra, AIR 1982 SC  1157)”.

19. In  Sharad Birdhichand Sarda v.  State of Maharashtra  

AIR 1984 SC 1622, while dealing with circumstantial evidence,  

it has been held that the onus was on the prosecution to prove  

that  the  chain  is  complete  and  the  infirmity  or  lacuna  in  

prosecution  cannot  be  cured  by  false  defence  or  plea.  The  

conditions  precedent  before  conviction  could  be  based  on  

circumstantial evidence, must be 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  

1

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  absence  of  any  

evidence of violence on the deceased cannot be held to be  

conclusive  proof,  and there  must  be  some evidence  to  

arrive  at  a  conclusion that  the  husband and husband  

alone was responsible therefor. The evidence produced by  

the prosecution should not be of such a nature that may  

make the conviction of the appellant unsustainable. (See  

Ramesh v. State of Rajasthan (2009) 12 SCC 603).  

(III) Motive in cases of Circumstantial Evidence

1

22. In State of Uttar Pradesh v.  Kishan Pal & Ors., (2008)  

16 SCC 73, this Court examined 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 favour of the accused. (vide:  Pannayar v.  State of  

Tamil Nadu by Inspector of Police, (2009) 9 SCC 152).   

(IV) Burden of  Proof and Doctrine of Innocence

1

24. Every  accused  is  presumed  to  be  innocent  unless  the  

guilt  is  proved.  The presumption of innocence is  a human  

right.  However, subject to the statutory exceptions, the said  

principle forms the basis of criminal jurisprudence.  For this  

purpose, the nature of the offence, its seriousness and  gravity  

thereof has to be taken into consideration.  The courts must  

be  on  guard  to  see  that  merely  on  the  application  of  the  

presumption,  the  same  may  not  lead  to  any  injustice  or  

mistaken conviction. Statutes like Negotiable Instruments 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  

1

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 2008 SC 1325).  

INSTANT CASE:

25. The instant case requires to be examined in the light of  

the aforesaid settled legal propositions.   

The incident occurred within a very short span of time  

after the marriage of the deceased with the appellant. They got  

married  on  15.5.2000  and  went  to  Ollur  for  two  days  and  

came  back  to  Chalakudy,  the  house  of  the  deceased.  On  

19.5.2000, they went to Kozhikode, house of Benny (PW.10),  

2

and  returned  on  22.5.2000.  The  deceased  appeared  in  the  

examination of B.Com 2nd Year on 23.5.2000. The 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.  

2

Therefore, the appellant confronted deceased Sweety and she  

had told him that  Benny (PW.10)  had forcibly  done it.   All  

these explanations had been furnished by the appellant in his  

statement under Section 313 Cr.P.C.  

26. In the opinion of Dr. V.K. Ramankutty (PW.17), Sweety  

died of Hydro Cyanic Acid. The said witness also opined that  

anti-mortem injuries found on the body of  Sweety could be  

caused  on  contact  with  the  rough  surface  on  falling  after  

consumption of the poison and peeling of cuticle might have  

been due to fall of vomitus containing cyanide as cyanide is a  

corrosive substance.  

27. There is no direct evidence whatsoever regarding taking  

or administering  the poison. Prosecution’s case had been that  

the  appellant  had  persuaded  deceased  Sweety,  to  take  an  

ayurvedic contraceptive medicine 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.  

2

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  third  call.   From  the  evidence  of  Dr.  V.K.  

Ramankutty, Professor of Forensic Medicine (PW.17), it is clear  

that Sodium Cyanide is a highly corrosive substance and even  

the fall of vomitus containing the same is sufficient to cause  

the peeling of a person’s cuticles.   He has even stated that  

2

death from Cyanide poisoning generally occurs within 10-20  

minutes of consumption of the poison.  This being the case, if  

deceased  Sweety  had already  taken Sodium Cyanide  before  

attending  the  third  call,  she  should  have  been  in  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  

2

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 phone call.  Consequently, both the  

Trial Court and the High Court came to the conclusion that  

the  evidence  offered  by  Krishnan  (PW.14)  was  not  reliable.  

The High Court, however, stated that there was no reason to  

disbelieve  the  prosecution’s  version  that  the  appellant  had  

called at the residence of the deceased thrice on the evening of  

the  date  of  incident  as  this  has  been  established  by  the  

evidence of Sini (PW.2) and Omana Poulose (PW.9).  The High  

Court did not see any reason to disbelieve the evidence of Sini  

(PW.2) and Omana Poulose (PW.9) in this regard.  The High  

Court failed to notice the observation of the Trial Court that  

Sini (PW.2) and Omana Poulose (PW.9) both 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  

2

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  other  number  to  where  the   call  is  received  would  be  recorded  in  the  computer.  The direction and charge would also  be recorded in that ….. I did not say to police  

2

that before first accused came there one or two   times to make telephone call.  The dates before  that  he came to make telephone could not be  remembered.  It was in the evening.  I could not   remember the time.”  

It is strange that Paily (PW.21), the Investigating Officer  

did not make any reference at any stage to Krishnan (PW.14)  

in his evidence 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.      

2

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  deceased  (PW.9),  had  given  two-three  calls  but  Benny  

(PW.10) did not talk to her and the explanation given by the  

appellant  was  that  as  Benny  (PW.1)  had  mis-behaved  with  

Sweety, she might have telephoned her mother. Thus, Omana  

Poulose (PW.9), wanted to talk to Benny (PW.10) seeking his  

explanation, though, the deceased told her mother (PW.9) that  

Benny (PW.10)  was not there.  However,  Benny (PW.10)  had  

deposed in his examination that he was there, but outside the  

house. No explanation was furnished by Benny (PW.10) as to  

why he did not want to talk to Omana Poulose (PW.9).   

2

31. It is in evidence that the appellant had purchased a huge  

quantity (1 Kg.)  of Sodium Cyanide on 26th/27th 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  

2

taken.   It  is  strange  that  a  dealer,  indulging  in  an  illegal  

business has trusted an unknown person and supplied him  

such  a  huge  quantity  of  sodium  cyanide  without  verifying  

whether  he had a jewellery shop or not.  The Trial Court had  

rightly disbelieved him as such a conduct is against normal  

human behaviour and, particularly, when Xavior (PW.7) has  

himself  stated  that  he used to give  sodium cyanide only to  

known  persons  having   jewellery  shop.   Other  witnesses,  

particularly, Jaison (PW.4) and Davis (PW.5), deposed  that the  

appellant had told them that he wanted to purchase Sodium  

Cyanide for killing the stray dogs on the streets.  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  

3

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 the prosecution as to why  

only Churidar Top (M.O.5) alone was sent for medical analysis  

As per the chemical analyst report in respect of Churidar Top  

(M.O.5),  a yellowish water soluble material (stain) was found.  

However,  it  does  not  lead  to  the  inference  that  M.O.5  

contained  any  evidence  of  having  Cyanide.   Dr.  V.K.  

Ramankutty (PW.17) has stated that Sodium Cyanide is water  

soluble  and  since  a  water  soluble  stain  was  found  on  the  

3

Churidar Top, on chemical examination Sodium Cyanide could  

have been detected.  

33. It is evident from the record that Benny (PW.10) was not  

known to the deceased, Sweety  or any of her family members  

before Sweety’s marriage. The record reveals that Smt. 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  

3

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  house  just  after  the  marriage  and  could  not  have  

attended the wedding of  Benny (PW.10)  leaving  his  mother,  

who was suffering from cancer, in the hospital.  However, it is  

also on record that Benny (PW.10) had taken loan from the  

appellant  and  two  cheques  issued  by  Benny  (PW.10)  had  

bounced and some complaints were also pending between the  

parties.  

34. On the fateful night, when Sweety had been taken to the  

hospital, the house of Omana Poulose (PW.9) remained open  

and a large number of persons visited the 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  

3

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 the said Della was the daughter of the  

appellant’s elder brother and was only 8 years old at the time  

of the incident.  Fr. Johnson G. Alappat (PW.8)  admitted that  

in order  to find out the truth and take proper action against  

3

the culprit in this case an ”Action Council” was formed under  

his patronage.  He further deposed as under:

“I  informed the  police  that  Sweety  and  Babu  were at Kozhikkode for seven days.  I informed  the  S.P.  that  there  is  something  to  suspect   about that.  I informed the Dy. S.P. that I knew  during  the  time  of  inquest  there  were  seven  injuries  on  Sweety’s  body.   I  doubted  it   happened  during  the  time  of  the  Kozhikkode  journey. I told the police that this aspect is 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.   

3

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  appellant  was  not  satisfied  with  the  sexual  

behaviour of Sweety deceased.  

While  the  High  Court  was  satisfied  with  this  alleged  

motive,  it  failed  to  notice  the  glaring  contradiction  that  

surrounded it. On the one hand, the prosecution’s case alleges  

that the motive behind the appellant’s murder of his deceased  

wife was that she was refusing to have sexual relations with  

him.  On the  other  hand,  the  prosecution’s  case  is  that  the  

deceased,  Sweety,  was taking  an ayurvedic  contraceptive  at  

the behest of the appellant. There is absolutely no explanation  

3

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  untoward  

3

incident  about  which  the  appellant  had  confronted  the  

deceased,  the  possibility  of  some  involvement  of  Benny  

(PW.10)  cannot  be  ruled  out  or  it  could  also  cause  

embarrassment  to  deceased.   In  a  case  of  circumstantial  

evidence, motive must be established at least to certain extent.  

Had there been a motive on the part of the appellant to get rid  

of  deceased and he had purchased the Sodium Cyanide on  

26th/27th May,  2000,  from  Xavior  (PW.7),  it  is  difficult  to  

believe that he was waiting upto 1.6.2000 and that he would  

have advised his wife to take the Cyanide under the guise of  

an Ayurvedic contraceptive medicine at the residence of her  

parents.       

36. 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. The High Court observed as under:   

3

“…..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 released forthwith if  he is in custody  

and not wanted in any other case.  The appeal is allowed  

accordingly.  

3

…………………………….J.  (P. SATHASIVAM)

……………………..……..J. New Delhi, (Dr. B.S. CHAUHAN) August 11, 2010

4