ANANDA POOJARYversusSTATE OF KARNATAKA

                      [2014] 10 S.C.R. 929


                     ANANDA POOJARY                                    A
                              v.
                   STATE OF KARNATAKA
             (Criminal Appeal No. 2202 of 2014)
                      OCTOBER 14, 2014
                                                                       8
         [J. CHELAMESWAR AND A.K. SIKRI, JJ.]

     Constitution of India, 1950:

      Art. 136 - Interference with concurrent findings recorded
                             1
                                                                       c
by both the courts belo w - Such an exercise would be
justified by the court for the purpose of satisfying itself that the
grave injustice had not resulted in the case - Principles culled
out.

     Penal Code, 1860:                                                 D

     ss.302 and 201- Appellant stated to have murdered the
lady who had bequeathed all her properties to him -
 Conviction by courts below based on circumstantial evidence
- Set aside - Having regard to the seriousness of the nature           E
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, interference with the
judgments of courts below is permissible under the law.
                                                                       F
     Allowing the appeal, the Court

    HELD: 1.1. It would be a natural conduct of any
person to take the patient to a doctor under whose care
and supervision the patient is already put, as that doctor
would be in a position to immediately diagnose the                     G
ailment, knowing well the medical history of the patient.
Therefore, merely because there was some other hospital
nearby and the appellant did not take her at the said
hospital but chose to bring her to Adarsha Hospital,
                           929                                         H
    930    SUPREME COURT REPORTS             [2014] 10 S.C.R.


A where she was a regular patient, is not a circumstance
  which would create any doubt about his integrity or
  conduct. [para 17] [941-E-G]

       1.2. In so far as issuance of death certificate (Ex.P-3)
8 issued by CW-13 is concerned, it has come on record that
  the doctor, CW-13 had seen the dead body of the
  deceased. She formed the opinion that the deceased had
  died of cardiac arrest. Since CW-13 examined the body
  and issued the certificate, it is she who was competent
C to issue such a certificate. [para 18] [941-G-H; 942-A-B]

       1.3. It cannot be said with certainty as to whether the
  deceased 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
D causes of death, in the absence of clear certainty about
  the cause, this Court is of the opinion that High Court
  committed an error in not giving benefit of doubt to the
  accused. [para 21] [943-H; 944-A-B]

E     1.4. The condition in the will that the appellant will
  succeed to the estate of the deceased only if he marries a
  Christian girl cannot be said to be the motive for the
  appellant to have killed the deceased. Death of the
  deceased natural or unnatural would not and could not
F wipe off the condition stated in the will. [para 25] [946-A-
    C]
      1.5. It is a matter of record that the will and the
  documents relating to investments and jewellery were
  handed over to the appellant and, therefore, they were in
G his rightful possession. Therefore, the so called
  'recovery' could not have been a circumstance from ·
  which an adverse inference is drawn. The appellant is
  accordingly acquitted of the charge giving him benefit of
  doubt. [para 26 & 34] [946-F-G; 952-B]
H
   ANANDA POOJARY v. STATE OF KARNATAKA                   931


     2. This Court has interfered with the findings of the       A
courts below, having regard to the seriousness of the
nature of imputation, viz. thaf"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 by Court is-permissible under the law and             B
would be justified for the purpose of satisfying itself that
the grave injustice had not resulted in the case. [para 29-
30] [947-E-G]

     Mahesh Dattatray Thirthkar v. State of Maharashtra, 2009    C
              =
(3) SeR 1122 (2009) 11 SCC 141; Sham Sunder v. Puran
& Anr. 1990 (1) Suppl. seR 662 = (1990) 4 sec 731; Khilli
Ram v. State of Rajasthan 1985 (1) SeR 1136 = 1985 (1)
sec 28; and Suryamoorthi & Anr. v. Govindaswamy & Ors.,
(1989) 3 sec 24 - relied on.
                                                                 ·o
                     Case Law Reference:
    1990 (1) Suppl. SeR 662 relied on               para 30
    1985 (1) SCR 1136           relied on           para 31
                                                                  E
    (1989) 3 sec 24             relied on           para 32
    2009 (3) SCR 1122           relied on           para 33

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2202 of 2014.
                                                                  F
    From the Judgment and Order dated 14.02.2013 in CRLA
No. 178 of 2009 of the High Court of Karnataka at Bangalore.

      Basant R., Shekhar G. Devasa, Karthik Ashok, Shiel Sethi
for the Appellant.                                                G

    V. N. Raghupathy for the Respondent.

    The Judgment of the Court was delivered by

                                                                  H
    932      SUPREME COURT REPORTS               [2014] 10 S.C.R.


A         A.K. SIKRI, J. 1. 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
8 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
  to suffer incarceration for life for allegedly murdering his own
C foster mother.

         3. It is an admitted position, accepted by the two courts
  below, that the deceased Dorathi Kutinho, who was a Teacher,
  h~d brought Ananda Poojary (the appellant) who was her
  student to her house and had showered love and affection like
D 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
E 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
F 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 sa;d Will,
  she had even conferred upon the appellant rights to perform
G all rituals after her death and of her brother Rudolph Kutinho.

       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
H doctor who examined her issued a certificate stating that she
   ANANDA POOJARY v. STATE OF KARNATAKA                      933
               [A.K. SIKRI, J.)
had died of cardiac arrest. However, as per the postmortem          A
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         B
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.
                                                                    c
      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   0
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 Kutinho, who is a resident of America.
                                                                    E
      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            F
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       G
said murder, he took the dead body of Dorathi Kutinho in the
auto-rickshaw of PW-10 Roshan Kumar to Ada rs ha 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.                       H
    934      SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   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.
                                                                '·
8       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 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
c 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
D 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
E 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.

F      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
G against him. No defence evidence was led by the appellant
  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
H death, cause of death Asphyxia by smothering. It is, therefore,
   ANANDA POOJARY v. STATE OF KARNATAKA                     935
               [A.K. SIKRI, J.]

claimed to be a case of murder. The defence maintains that          A
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 elicitea directly   B
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 committiAg the said murder. The trial court
also recorded that the various ingredients proved by the
prosecution are sufficient to complete the chain of                 C
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    D
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 Power of
Attorney; one consent letter; bank certificates. All the above-     E
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 Gorattf Hospital but the appellant insisted on going to
Adarsha Hospital. He also stated that the appellant was found       F
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     G
is the sister of the appellant (extra judicial statement) who
turned hostile. According to the prosecution, it was stated by
 PW-11 that the appell~nt 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   H
    936          SUPREME COURT REPORTS              [2014] 10 S.C.R.


A   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.

B       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:

          (i)     It is not in dispute that' the appellant was residing
                  with the deceased and her mentally retarded
c                 brother Rudolph.

          (ii)    There was no other person except the appellant,
                  deceasedand Rudolph who were residing in the
                  house of the deceased.
D
          (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
E                 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.

F         (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
                  Sam pa Poojarthy (PW-11) who is appellant's
                  sister, the appellant was not willing to marry a
G                 Christian lady.

          (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
H                 deceased was in an uncomfortable condition and
ANANDA POOJARY v. STATE OF KARNATAKA                     937
            [A.K. SIKRI, J.]

        had to be shifted immediately to the hospital. Thus,    A
        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.      B
        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
                                                                c
        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 Adar$ha Hospital and PW-2 directed Dr..
        Rekha to issue a certificate. Thereupon, the D
        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 E
        deceased. On the other hand, 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 F
        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
                                                                G
        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
                                                                H
    938      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A               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
8   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
C   account some very relevant and 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
D   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
E   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
F   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.
G   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
H   seems more like a story/plot made by the prosecution. With
   ANANDA POOJARY v. STATE OF KARNATAKA                      939
               [A.K. SIKRI, J.]

regard to Roshan Kumar (PW-10) an auto-rickshaw driver,              A
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          B
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        C
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         D
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          E
chain and the earpiece from the possession of the appellant
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         F
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         G
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.
                                                                     H
    940          SUPREME COURT REPORTS              [2014] 10 S.C.R.


A   In this scenario, two basic questions which fall for consideration
    are as under:
          (i)     Whether Dorathi's demise was on account of
                  cardiac arrestor the cause of death was asphyxia
                  as a result ofsmothering?
B
          (ii)    In case Dorathi was murdered, whether the
                  appellant is theculprit 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
C formulated. At the same time, we would like to point out that
  some of the aspects of discussion are overlapping as the
  issues are interrelated and, therefore, there would be some
  repeat discussion while answering these questions.

0
    Answer to Question No.1                     l
         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
E   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
F   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
G   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 Rosh an 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
H   the appellant that after finding Dorathi in an uncomfortable
   ANANDA POOJARY v. STATE OF KARNATAKA                     941
               [A.K. SIKRI, J.]

position, he had called Roshan Kumar so that he could take         A
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
                                                                    8
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 C
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 D
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 E
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 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. F
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.
                                                                    G
   . 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 H
    942      SUPREME COURT REPORTS               [2014] 10 S.C.R.


A   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
B   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
c   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.

         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
0
    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,
E   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
F   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
G   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 deceas~d.
    (to be taken from the statement of PW-2 (doctor) at page 73-
    74.
H
   ANANDA POOJARY v. STATE OF KARNATAKA                        943
               [AK. SIKRI, J.]

     20. There is one more very crucial and critical                   A
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 7th March, 2006
wherein it was stated that the 'murder was committed by                B
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            C
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     D
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         E
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 from the discussion. It would be also relevant to point        F
out at this stage even PW-2 namely Dr. Ch~ndrashekhar 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 categoric Jlly          •
mentioned that at that time, she was treated for hypertension          G
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   H
    944           SUPREME COURT REPORTS             [2014] 10 S.C.R.


A   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
B   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
C   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
    show more signs of innocence of the appellant.
D
         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
E   murder of Dorathi. The circumstances which are found against
    the appellant are:

           (i)     Motive on the part of the appellant to commit the
                   murder ofDorathi stands established.

F          (ii)    Appellant and the deceased were last seen
                   together.

           (iii)   Injuries which are found on the body of the ,
                   deceased showunnatural death. (This aspect is
G                  already dealt with by us above).
           (iv)    Certain recoveries are made pursuant to the
                   disclosurestatement of the appellant which nail him
                   of the offence.

H         24. As far as the company of the appellant with the
   ANANDA POOJARY v. STATE OF KARNATAKA                         945
               [A.K. SIKRI, J.]

deceased and they were together is not in dispute so 'last seen'        A
aspect is proved. In fact, the c:ij.Jpellant 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-1 O Roshan Kumar and went in           B
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       C
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.          D
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            E
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          F
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 commit the murder              G
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
                                                                        H
    946     SUPREME COURT REPORTS                [2014] 10 S.C.R.


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
B 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
C 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.
D 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 could have been achieved by killing
  such a helpless lady, a little prematurely.
E
        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
F 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
G 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
H of the deceased which she had bequeathed to the appellant.
   ANANDA POOJARY v. STATE OF KARNATAKA                       947
               [A.K. SIKRI, J.]

A very disturbing, but crucial, aspect emerged from the answer        A
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
bolsters our conclusion that the appellant is an innocent person      B
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,
                                                                      c
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
                                                                      0
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        E
of the courts below. However, having regard to the seriousness
of the nature of imputation, viz. that of murder, coupled with the
fact tl'lat 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         F
of action is supported by various judgments of this Court, some
of which are taken note of below.

     30. In Sham Sunder v. Puran & Anr., (1990) 4 SCC 731 ),
this Court observed that such an exercise would be justified for      G
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     H
    948       SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A         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
B         requiring determination and has also on erroneous
          grounds discredited the evidence and has further failed to
          consider the fact that on account of long &tanding enmity
          between the parties, there is a tendency to involve innocent
          persons and to exaggerate and lead prejudged evidence
c         in regard to the occurrence, the Supreme Court would be
          justified in going into ttie evidence for the purpose of
          satisfying itself that the grave injustice has not resulted in
          the case."

       31. Further in Khi/li Ram v. State of Rajasthan, when the
D 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:
E
          "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
F         version of the incident. PW. 2, the decoy witness 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
G         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
H
   ANANDA POOJARY v. STATE OF KARNATAKA                       949
               [AK. SIKRI, J.]
    in an appeal by special leave is a self-imposed one and           A
    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             8
    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 C
    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 Mangat v. State of Rajasthan, (1983) 1 D
    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 E
    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 F
    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 G
    him. He is discharge from his bail bond."

    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
                                                                      H
    950       SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   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
B
          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
c         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
D         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
E         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
F          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
G detail in Mahesh Dattatray Thirthkarv. State of Maharashtra,
  (2009) 11 sec 141. After taking note of earlier precedents
  explaining the scope of Article 136 of the Constitution, position
  was summarised in para 22 and we reproduce the same:

H         "22. From a close examination of the principles laid down
ANANDA POOJARY v. STATE OF KARNATAKA                      951
            [A.K. SIKRI, J.]

by this Court in the aforesaid series of decisions as A
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:
                                                             B
        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.                 C

       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.                    D

       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              E
       perverse and unsupportable from the evidence on
       record.

       The appreciation of evidence and finding results in
       serious miscarriage of justice or manifest illegality.    F

       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 G
       that justice has failed and the findings are likely to
       result in unduly excessive hardship.

       When the High Court has redetermined a fact in
       issue in a civil appeal, and erred in drawing
       interferences based on presumptions.                      H
    952      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A               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
8   is accordingly acquitted of the charge. He shall be released
    forthwith.

    Rajendra Prasad                                     Appeal allowed.