BABUversusSTATE OF KERALA

                   [2010] 9 S.C.R. 1039


                           BABU                                A
                             v.
                   STATE OF KERALA
            (Criminal Appeal No. 104 of 2009)
                    AUGUST 11, 2010
                                                               B
    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

      Penal Code, 1860 - s. 302 - Prosecution case that
husband murdered his wife by giving her sodium cyanide -
Charge framed u/s. 302 - Acquittal by trial court - However, C
conviction by High Court - On appeal, held: Prosecution has
to prove its case beyond reasonable doubt - No direct
evidence regarding taking or administering the poison to
deceasecJ - All circumstances raising doubts - Failure of
prosecution to establish that husband made phone calls to D
the residence of deceased prior to the incident - Sodium
Cyanide not recovered from husband nor remaining amount·
of ayurvedic contraceptive medicine that husband allegedly
mixed Cyanide in., recovered - In case of circumstantial
evidence, motive must be established at least to certain extent E
- Material contradiction in the prosecution case, thus, motive
could not be proved - Thus, order of conviction by High Court
.set aside and judgment of trial court restored - Circumstantial
Evidence - Burden on prosecution to prove its case - Motive
- Appeal against acquittal - Scope of - Power of appellate F
court - Explained.

    According to the prosecution case, the appellant-
h usband persuaded his wife to take an ayurvedic
contraceptive medicine and under the guise he gave her
Sodium Cyanide. The appellant was charge sheeted uls.          G
302 IPC for murdering his wife by giving her Sodium
Cyanide. The trial court acquitted the appellant. However,
the High Court reversed the order of acquittal. Therefore,
the appellant filed the instant appeal.
                           1039                                H
    1040    SUPREME COURT REPORTS               [2010] 9 S.C.R.


A       Allowing the appeal, the Court

       HELD: 1. The appellate court should not ordinarily
  set aside a judgment of acquittal in a case where two
  views are possible, though the view of the appellate court
B may be more, probable one. While dealing with a
  judgment of acquittal, the appellate court has to consider
  the entire evidence on record, so as to arrive at a finding
  as to whether the views of the trial court were perverse
  or otherwise unsustainable. The appellate court is
C entitled to consider whether in arriving at a finding of fact,
  the trial court failed to take into consideration admissible
  evidence and/or look into consideration the evidence
  brought on record contrary to law. Similarly, wrong
  placing of burden of proof may also be a subject matter
  of scrutiny by the appellate court. [Para 7] [1056-E-H]
D
       Balak Ram v. State of U. P. AIR 197 4 SC 2165;
  Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315;
  Shai/endra Pratap & Anr. v. State of UP. AIR 2003 SC 1104;
  Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh
E Singh & Ors. v. State of UP. AIR 2006 SC 2500; State of UP.
  v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v.
  S. Rami Reddy (DJ by his LRs. & Ors. AIR 2008 SC 2066;
  Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla
  Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC
F 98; Ram Singh alias Chhaju v. State of Himachal Pradesh
  (2010) 2 SCC 445; Tulsiram Kanu v. The State AIR 1954 SC
  1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G.
  Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu
  Mohton & Ors. v. State of Bihar AIR 1970 SC 66;
G Sambasivan and Ors. v. State of Kera/a (1998) 5 SCC 412;
  Bhagwan Singh and Ors. v. State of M. P. (2002) 4 SCC 85;
  State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755,
    relied on.

        Sheo Swarup and Ors. v. King Emperor AIR 1934 PC
H
             BABU v. STATE OF KERALA                     1041


227; Chandrappa and Ors. v. State of Karnataka (2007) 4 A
SCC 415; Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC
450; State of Rajasthan v. Naresh @ Ram Naresh (2009) 9
SCC 368; State of Uttar Prades.h v. Banne alias Baijnath &
Ors. (2009) 4 SCC 271; Dhanapal v. State by Public
Prosecutor, Madras (2009) 10 SCC 401, referred to.          B

     2.1. in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the
order of acquittal. The appellate court should bear in mind       C
the presumption of innocence of the accused and further
that the trial court's acquittal bolsters the presumption of
his innocence. Interference in a routine manner where the
other view is possible should be avoided, unless there
are good reasons for interference. [Para 15] [1060-8-D]
                                                                  D
     2.2. The findings of fact recorded by a court can be
held to be perverse if the 1findings 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     E
weight of evidence', or if the finding so outrageously
defies logic as to suffer from the vice of irrationality. [Para
16] [1060-E-F]

     Rajinder Kumar Kindra v. Delhi Administration AIR 1984
                                                                  F
SC 1805; H.B. Gandhi & Ors. v. Gopi Nath & Sons 1992
supp. (2) SCC 312; Triveni Rubber & Plastics v. Collector
of Central Excise, Cochin AIR 1994 SC 1341; Gaya Din (D)
thr. Lrs. & Ors. v. Hanuman Prasad (D) thr. Lrs. & Ors. AIR
2001 SC 386; Gamini Bala Koteswara Rao & Ors. v. State of
Andhra Pradesh thr. Secretary (2009) 10 SCC 636, relied on.       G

    Ku/deep Singh v. Commissioner of Police & Ors. AIR
1999 SC 677, referred to.

    3. When a case rests upon circumstantial evidence,            H
    1042   SUPREME COURT REPORTS             [2010] 9 S.C.R.

A such evidence must satisfy the following tests: (i) the
  circumstances from which an inference of guilt is sought
  to be drawn, must be cogently and firmly established; (ii)
  those circumstances should be of definite tendency
  unerringly pointing towards guilt of the accused; (iii) the
B circumstances, taken cumulatively, should form a chain
  so complete that there is no escape from the conclusion
  that with all human probability the crime was committed
  by the accused and none else; and (iv) the circumstantial
  evidence in order to sustain conviction must be complete
c and incapable of explanation of any other hypothesis
  than that of the guilt of the accused and such evidence
  should not only be consistent with i.he guilt of the
  accused but should be inconsistent with his innocence.
  [Para 18] [1061-C-G]
D       Krishnan v. State represented by Inspector of Police
    (2008) 15 sec 430, relied on.

      Sharad Birdhichand Sarda v. State of Maharashtra AIR
  1984 SC 1622; State of U. P. v. Salish, (2005) 3 SCC 114;
E Pawan v. State of Uttaranchal (2009) 15 SCC 259;
  Subramaniam v State of Tamil Nadu (2009) 14 SCC 415;
  Ramesh v. State of Rajasthan (2009) 12 SCC 603, referred
  to.

F      4.1. The motive is a thing which is primarily known
  to the accused themselves and it is not possible for the
  prosecution to explain what actually promoted or excited
  them to commit the particular crime. The motive may be
  considered as a circumstance which is relevant for
  assessing the evidence but if the evidence is clear and
G unambiguous and the circumstances prove the guilt of
  the accused, the same is not weakened even if the motive
  is not a very strong one. The motive loses all its
  importance in a case where direct evidence of
  eyewitnesses is available. The absence of motive in a
H case depending on circumstantial evidence is a factor
            BABU v. STATE OF KERALA                  1043


that weighs in favour of the accused. [Paras 22 and 23]      A
[1063-B-G]

     State of Uttar Pradesh v. Kishan Pal & Ors. (2008) 16
SCC 73; Pannayar v. State of Tamil Nadu by Inspector of
Police (2009) 9 SCC 152, relied on.
                                                             B
     5. 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. The nature of the offence, its seriousness    C
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. Some statutes
provide for presumption of guilt if the circumstances        D
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   E
fact. However, in cases ·where the statute does not
provide for the burden of proof on the accused, it always
lies on the prosecution. [Para 24] [1063-H; 1064-A-D]

     Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC
16; Narendra Singh v. State of M.P. AIR 2004 SC 3249;
                                                             F
Rajesh Ranjan Yadav v. CBI AIR 2007 SC 451; Noor Aga
v. State of Punjab & Anr. (2008) 16 SCC 417; Krishna
Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 SC 1325,
relied on.
                                                             G
    6.1. In the instant case, the incident occurrec;:I within
a very short span of time af~er/the marriage of the
deceased with the appellant. They got married on
15.5.2009 at the instance of the deceased and her mqther,1
           .'
            -                               '
PW.9. The appellant along with deceaseCI attended the .H
                                                        .
    1044    SUPREME COURT REPORTS              [2010] 9 S.C.R.


A marriage of PW.10 on 31.5.2000 at place 'K'. Immediately
  after the marriage of PW.10, his wife had gone to her
  parents' house as there was some problem. When the
  appellant and deceased were staying with PW.10, the
  appellant took liquor and went outside to make a call to
B his employer and when he came back after some time he
  saw the deceased and PW.10 in a compromising position
  and did not like the situation. Therefore, the appellant
  confronted the deceased and she told him that PW.10
  had forcibly done it. The appellant furnished all these
C explanations in his statement u/s. 313 Cr.P.C. [Para 25)
  [1064-G-H; 1065-A-D]

         6.2. There is no direct evidence whatsoever regarding
    taking or administering the poison. The prosecution's
    case was that the appellant had persuaded the deceased
D   to take an ayurvedic contraceptive medicine and under
    that guise he gave her Sodium Cyanide. PW.9 and PW.2,
    mother and sister of the deceased deposed that there
    were three calls from outside by the appellant to the
    deceased just to know as to whether she had taken the
E   said medicine. As per their evidence, two of the said three
    telephone calls i.e. 1st and 3rd calls were attended to by
    the deceased. The trial court held that as per the
    prosecution's version of events, the deceased had
    already taken the medicine containing Cyanide before
F   attending the third call. From the evidence of PW.17-
    dcotor, 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 even stated that death from
G   Cyanide poisoning generally occurs within 10-20
    minutes of consumption of the poison. This being the
    case, if the deceased 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
H   the last call, she should have vomited already and
             BABU v. STATE OF KERALA                     1045

corrosion would have already occurred in her mouth. But          A
nothing of that sort had occurred. The trial court came

                 -----
to the finding of fact that the said aspect of the
prosecution's case hacfnot been sufficiently established.
The High Court failed to notice, the said finding of the trial
court. [Para 27] [1065-G-H; 1066-A-H; 1067-A]                    B

     6.3. PW.14-telephone booth operator gave evidence
to the extent that the appellant had gone to his booth and
telephoned someone. He stated that he could only be
sure that the appellant had come once or twice around C
the incident; and that normally the people dial the
telephone on their own and that there was a separatio!l
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 PW.14 was not reliable. The High D
Court, however, stated that there was no reason to
disbelieve the prosecutiOn version that the appellant had
called at the residence of the deceased thrice on the
evening of the date of incident as it was established by
the evidence of PW.2 and PW.9. the High Court failed to E
notice the obse.rvation of the .trial court that PW.2 and
PW.9 both were sister and mother of the deceased and
had inimical feelings towards the appellant since they
came to the conclusion that the appellant was
responsible for her death, and their deposition had F
material improvements from their statements recorded
during investigation. The trial court observed that there
was a further irregularity surrounding the investigation
into the alleged phone calls. PW.14 stated that the
telephone booth was computerised and that there would G
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 H
    1046   SUPREME COURT REPORTS              [2010] 9 S.C.R.


A employer of PW.14, who received a copy of these records
  every month. Thi:! prosecution failed to establish that the
  appellant made three phone calls to the residence of the
  deceased prior to the incident. All the circumstances raise
  great doubts about the prosecution theory regarding the
B 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 stood falsified. [Paras 28 and 29]
  [1067-B-H; 1068-A-G-H; 1069-A]
c     6.4. The appellant and the deceased were staying
  with PW.10 on 30-31.5.2000. PW.9, made two-three calls
  but PW.10 did not talk to her and the explanation given
  by the appellant was that PW.10 had mis-behaved with
  the deceased, she might have telephoned her mother.
D Thus, PW.9, wanted to talk to PW.10 seeking his
  explanation, though, the deceased told PW.9 that PW.10
  was not there. However, PW.10 deposed in his
  examination that he was there, but outside the house. No
  explanation was furnished by PW.10 as to why he did not
E have a word with PW.9. [Para 30] [1069-B-C]

       6.5. It is in evidence that the appellant had purchased
  a huge quantity (1 Kg.) of Sodium Cyanide on 26th/27th
  May, 2000, from PW.7. who supplied 1 Kg. Sodium
F Cyanide to the appellant without making a receipt. He
  could not reveal the amount he had taken. It is strange
  that a dealer, indulging in an illegal business trusted an
  unknown person and supplied him such a huge quantity
  of Sodium Cyanide without verifying whether he had a
G jewellery shop or not. The trial court rightly disbelieved
  PW.7 as such a conduct is against normal human
  behaviour and, particularly, when PW.7 himself stated that
  he used to give Sodium Cyanide only to known persons
  having jewellery shop. PW.4 and PW.5, deposed that the
H appellant told them that he wanted to purchase Sodium
            BABU v. STATE OF KERALA                   1047

Cyanide for killing the stray dogs on the streets. Further,   A
the appellant was an employee of a Jewellery shop which
had branches in Kerala and he could have easily
procured the Sodium Cyanide from there. [Para 31] [1069-
D-H; 1070-A-C]
                                                              B
     6.6. There is ample evidence on record to show that
 PW.4, PW.5 and PW.12 were known to and were friends
 of PW.10. PW.10 himself was in the business of cleaning
 and colouring jewellery, and thus, knew how to use
 Sodium Cyanide. To kill a person, a small quantity of a      C
 few milligrams is enough. This means that as per the
 prosecution case, almost an entire one kilogram of
 sodium cyanide should have still been with the appellant.
 No recovery of Sodium Cyanide was made from the
 accused nor was there any recovery of the remaining
 amount of the ayurvedic contraceptive medicine that the      D
 appellant was alleged to have mixed the cyanide in. The
·inquest was conducted by PW.18 and all the clothes
 worn by the deceased were preserved. There is no
 explanation by the prosecution as to why only Churidar
 Top alone was sent for medical analysis As per the           E
 chemical analyst report in respect of Churidar Top, a
 yellowish water soluble material (stain) was found.
 However, it does not lead to the inference that the cloth
 contained any evidence of having Cyanide. PW.17 stated
 that Sodium Cyanide is water soluble and since a water       F
 soluble stain was found on the Churidar Top, on chemical
 examination Sodium Cyanide could have been detected.
 [Para 32] [1070-D-H; 1071-A]

     6.7. It is evident from the record that PW.10 was not    G
known to the deceased, or any of her family members
before the marriage of the deceased. No explanation
could be furnished by PW.9 as to what was the occasion
to inform PW.10 at mid-night about the unfortunate
incident except that he was a good friend of the appellant.
                                                              H
   1048    SUPREME COURT REPORTS                [2010] 9 S.C.R.


A Undoubtedly, there were good relations between the two,
  otherwise the appellant would not have gone to his house
  just after the marriage and would not have attended the
  wedding of PW.10 leaving his mother, who was suffering
  from cancer, in the hospital. However, it is also on record
B that PW.10 had taken loan from the appellant and two
  cheques issued by PW.10 had bounced and some
  complaints were also pending between the parties. [Para
  33] [1071-B-G]

       6.8. On the fateful night, when the deceased was
C taken to the hospital, the house of PW.9 remained open
   and a large number of persons visited the house. PW.S-
   priest came about 12.30 at night and he was the first
 • person to see the glass with white material on Almirah.
   As per PW.8, it was a white colour material, but the
D analyst's report reveals that it was a yellowish colour.
   Two glasses and a container etc. were recovered. The
   recovery was made on 2.6.2000. The said material was
   produced before the Magistrate in court only on 8.6.2000.
   Therefore, it remained in the custody of Investigating
E Officer for 6 days. There is no evidence on record to show
   that said material was kept under the sealed cover.
   According to the deposition of PW.8, the room was open
   and about 25 persons were there. He was informed by
   PW.2 about the three phone calls made by the appellant
F on that day. He deposed that the appellant had talked to
   him for about half an hour and disclosed that 'he loved
   one 'D' and hence, it was the cause of the death of his
   wife'. In fact, it also came in evidence that the said 'D' was
   the daughter of the appellant's elder brother and was only
G 8 years old at the time of the incident. PW.8 admitted that
   in order to find out the truth and take proper action
   against the culprit, an 'Action Council' was formed under
   his patronage. The role PW.8 was not such that may
   inspire confidence. Instead, he gave a new theory from
H his own imagination as it was nobody's case that the
            BABU v. STATE OF KERALA                    1049

couple stayed at place 'K' for seven days. Had it been so,     A
four injuries on the face, at least, could have been noticed
by her family members just on her arrival. Medical
evidence was that injuries found on the person of the
deceased could be caused because of fall after
consumption of cyanide. [Para 34) [1071-G-H; 1072-A-H;         B
1073-A]

     6.9. The trial court dis-believed PW.2 and PW.9 taking
into consideration the fact that they had made
improvements to the extent that their statements were
inconsistent with the statement recorded by the 1.0. u/s.      C
161 Cr.P.C. The well reasoned judgment of the trial court
was 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 PW.10 had deposed that the appellant was not              D
satisfied with the sexual behaviour of the deceased. While
the High Court was satisfied with the alleged motive, it
failed to notice the glaring contradiction that surrounded
it. On the one hand, the prosecution alleges that the
motive behind the appellant's murder of his deceased           E
wife was that she was refusing to have sexual relations
with him. On the other hand, t'ie prosecution case is that
the deceased was taking an ayurvedic contraceptive at
the behest of the appellant. There is absolutely no
explanation for why_the deceased would have taken a            F
contraceptive if she was not having sexual relations with
her husband or anyone else. In view of such material
contradictions, the prosecution was unable to establish
a motive. [Para 34] [1073-C-H; 1074-A-B]
                                                               G
     6.10. In view of the fact that PW.10 had developed
intimacy with the deceased and while travelling in a car
he had fed with his hands while the appellant was asleep
and there had been some untoward incident about which
the appellant had confronted the deceased, the                 H
    1050   SUPREME COURT REPORTS               [2010] 9 S.C.R.


A possibility of some involvement of PW.10 cannot be ruled
  out or it could also cause embarrassment to deceased.
  In a case of circi..mstantial 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 the
B deceased and he had purchased the Sodium Cyanide on
  26th/27th May, 2000, from 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
c her parents. [Para 35] [1074-B-E]
       6.11. The trial court had doubts regarding the
  veracity of the depositions of PW.4, PW.5, and PW.7,
  being friends of PW.10. The trial court, had an advantage
  to watch the demeanour of the witness and was in a
D better position to evaluate their credibility. Thus, the High
  Court ought not to have reversed the judgment of the trial
  court. The High Court erred in empliasising that onus to
  prove his innocence was on the appellant. It could not
  be the requirement of law. The prosecution has to prove
E its case beyond reasonable doubt. In the case of
  circumstantial evidence the burden on prosecution is
  always greater. Therefore, the judgment and order of the
  High Court is set aside and the judgment and order of the
  trial court is restored. [Paras 35, 36 and 37] [1074-B-H;
F 1075-A-B]

         State of Uttar Pradesh v. Kishan Pal & Ors. (2008) 16
    SCC 73; Pannayar v. State of Tamil Nadu by Inspector of
    Police (2009) 9 sec 152, relied on.
G                       Case Law Reference:
        AIR 1974 SC 2165          Relied on           Para 7
        AIR 1991 SC 315           Relied on           Para 7

H       AIR 2003 SC 1104          Relied on           Para 7
      BABU v. STATE OF KERALA           1051

(2004) 1o sec 699      Relied on     Para 7    A
AIR 2006 SC 2500       Relied on     Para 7
AIR 2007 SC 3075       Relied on     Para 7
AIR 2008 SC 2066       Relied on     Para 7    B
(2009) 10 sec 206      Relied on     Para 7
(2009) 16 sec 98       Relied on     Para 7
(2010) 2 sec 445       Relied on     Para 7
AIR 1934 PC 227
                                               c
                       Referred to   Para 8
AIR 1954 SC 1          Relied on     Para 9
AIR 1957 SC 216        Relied on     Para 9
AIR 1963 SC 200        Relied on     Para 9    D

AIR 1970 SC 66        . Relied on    Para 9
(1998) 5 sec 412       Relied on     Para 9
(2002) 4 sec 85        Relied on     Para 9    E
(2001) 3 sec 755       Relied on     Para 9
(2007) 4 sec 415       ~elied on     Para 10
(2008) 1o sec 450      Referred to   Para 11
                                               F
(2009) 9 sec 368       Referred to   Para 12
(2009) 4 sec 211       Referred to   Para 13
(2009) 1o sec 401      Referred to   Para 14
                                               G
AIR 1984 SC 1805       Relied on     Para 16
1992 supp. (2) SCC 312 Relied on     Para 16
AIR 1994 SC 1341       Relied on     Para 16
                                               H
    1052     SUPREME COURT REPORTS               [2010] 9 S.C.R.


A          AIR 2001 SC 386        Relied on            Para 16

           (2009) 1o sec 636      Relied on            Para 16

           AIR 1999 SC 677        Referred to          Para 17

           (2008) 15 sec 430      Relied on            Para 18
B
           AIR 1984 SC 1622       Referred to          Para 19

           (2005) 3 sec 114       Referred to          Para 20

           (2005) 15 sec 259      Referred to          Para 20
c
           (2009) 14 sec 415      Referred to          Para 21

           (2009) 12 sec 603      Referred to.         Para 21

           (2008) 16 sec 73       Relied on            Para 22
D          (2009) 9 sec 152       Relied on            Para 23

           (2001) 6 sec 16        Relied on            Para 24

           AIR 2004 SC 3249       Relied on            Para 24

E          AIR 2007 SC 451        Relied on            Para 24

           (2008) 16 sec 417      Relied on            Para 24

           AIR 2008 SC 1325       Relied on            Para 24

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F
    No. 104 of 2009.

        From the Judgment & Order dated 5.8.2008 of the High
    Court of Kerala at Ernakulam in Criminal Appeal No. 908 of
    2004.
G
        Venkat Subramonium T.R., Romy Chacko, Jasawani
    Mishra for the Appellant.

        R. Sathish, S. Geetha for the Respondent.

H
             BABU v. STATE OF KERALA                      1053


    The Judgment of the Court was delivered by                     A

     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        B
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               C
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 w.ith golden Jewellery. The
couple, after marriage on 15.5.2000, stayed for two days with      D
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.   E
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
                                                                   1
31.5.2000 and returned to Chalakudy, at 4.00 p.m. on 1.6.2000.     F
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 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         G
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
                                                                   H
    1054    SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A   lodged an F.l.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
B   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
c   as well as Sodium Cyanide. Xavior, PW.7 made a statement
    that the appellant had procured 1 Kg. Sodium Cyanide from
    him between 25.5.2000 and 27.5.2000. The post mortem report
    revealed that Sweety died of Cyanide poisoning. As per the
    statement of Omana Poulose (PW.9), mother of the deceased
    Sweety, the poison was given to Sweety by the appellant under
0
    the guise of giving her an ayurvedic contraceptive medicine.
    P(iily (PW.21 ), the Investigating Officer completed the
    investigation and submitted a charge sheet against the
    a·ppellant for the offence under Section 302 of the Indian Penal
E   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
F    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
G    and acquitted the appellant vide judgment and order dated
     8.4.2003.

       3. The High Court considered the submissions made by
  the prosecution that the appreciation of evidence by learned
H Sessions Judge was not proper one, thus, the findings of fact
              BABU v. STATE ,.OF KERALA                     1055
                [DR. B.S. CHAUHAN, J.]

 recorded by the Trial Court were perverse. The circumstances        A
 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       B
.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    c
 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.

      4. Shri Venkat Subramonium T.R., learned counsel D
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 E
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 F
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 G
totally unwarrantec}. There was no direct evidence in the case.
It was a case of circumstantial evidence, thus, the prosecution
had to establish the~9tive for crime. The test for proving a
case of circumstantial evidence stands entirely on a different
footing, than a case of direct evidence. The judgment of Ti"ial H
    1056    SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A   Court did not warrant ~my 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
8
  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
C 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.
D
    LEGAL ISSUES:

    (I) Appeal against Acquittal :

        7. This court time and again has laid down the guidelines
E 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,
F 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
G 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
H
             BABU v. STATE OF KERALA                       1057
               [DR. B.S. CHAUHAN, J.]

U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of A
Bihar AIR 1991 SC 315; Shai/endra Pratap & Anr. v. State of
U. P. Al R 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 (DJ by his LRs. & B
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
                                                                    c
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     D
    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   E
    a Judge who had the advantage of seeing the
    witnesses .... "

     9. The aforesaid principle of law has consistently been
followed by this Court. (See: Tulsiram Kanu v. The State AIR
1954 SC 1; Ba/bir Singh v. State of Punjab Al R 1957 SC 216;
                                                                    F
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 Kera/a (1998) 5 SCC 412;
Bhagwan Singh and Ors. v. State of MP. (2002) 4 SCC 85;
and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC            G
755).

    10. In Chandrappa and Ors. v. State of Karnataka (2007)
4 SCC 415, this Court reiterated the legal position as under:
                                                                    H
    1058    SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A       "(1) An appellate court has full power to review, re-
        appreciate ancl 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
8
        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
c       strong circumstances", "distorted conclusions", "glaring
        mistakes", etc. are not intended to curtail extensive powers
        of an appellate court in an appeal against acquittal. Such
        phraseologies are more in the nature of "flourishes of
        language" to emphasise the reluctance of an appellate
D       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
E
        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,
F       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
G       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
H have acquit~ed the accused, should bear in mind that the trial
              BABU v. STATE OF KERALA                        1059
                [DR. B.S. CHAUHAN, J.]
court's acquittal bolsters the presumption that he is innocent.       A
The appellate court must give due weight and 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.                                                            B

     12. In State of Rajasthan v. Naresh @ Ram Naresh
(2009) 9 sec 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     C
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    D
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;
                                                                      E
     (ii) The High Court's conclusions are contrary to evidence
     and documents on record;

     (iii) The entire approach of the High Court in dealing with
     the evidence was patently illegal leading to grave               F
     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;
                                                                      G
     (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
                                                                      H
    1060    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A       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
8
    sec 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
C acquittal. The appellate court should bear in mind the
  presumption of innocence of the accused ar.d further that the
  trial Court's acquittal bolsters the presumption of his innocence.
  Interference in a routine manner where the other view is
  possible should be avoided, unless there are good reasons for
D 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
E irrelevanUinadmissible 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 &
F 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).
G
        17. In Ku/deep 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
  anc' no reasonable person would act upon it, the order would
H be perverse. But if there is some evidence on record which is
             BABU v. STATE OF KERALA                     1061
               [DR. B.S. CHAUHAN, J.]

acceptable and which could be relied upon, the conclusions        A
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         B
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     c
    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;
                                                                  D
           (ii) those circumstances should be of definite
           tendency unerringly pointing towards guilt of the
           accused;

           (iii) the circumstances, taken cumulatively, should    E
           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   F
           conviction must be complete and incapable of
           explanation of any other hypothesis than that of the
           guilt of the accused and such evidence should not
           only be consistent with the guilt of the accused but
           should be inconsistent with his innocence. (See        G
           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,     H
    1062    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   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 :
B
        (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
c       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 concl~sive nature and
D       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
E       to leave any reasonable ground for the conclusion
        consistent with the innocence of the accused and must
        show that in all human probability the act must have been
        done by the accused.

F        20. A similar view has been re.'.iterated by this Court in
    State of UP. 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
G 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
H evidence produced by the prosecution should not be of such a
             BABU v. STATE OF KERALA                          1063
               [DR. B.S. CHAUHAN, J.]

nature that may make the conviction of the appellant                   A
unsustainable. (See Ramesh v. State of Rajasthan (2009) 12
sec 603).
{!Ill Motive in cases of Circumstantial Evidence

    22. In State of Uttar Pradesh v. Kishan Pal & Ors., (2008)         B
16 sec 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                  c
    prosecution to explain what actually promoted or excited
    them to commit ti1e 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            D
    prove the guilt of the accused, the same is not weakened
    even if the motive is not a very strong on·e. It is also settled
    law that the motive loses all its importarice in a case where
    direct evidence of eyewitnesses is available, because even
    if there may be a very strong motive for the accused               E
    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         F
    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           G
Tamil Nadu by Inspector of Police, (2009) 9 sec 152).

(IV) Burden of Proof and Doctrine of Innocence

      24. Every accused is presumed to be innocent unless the
guilt is proved. The presumption of innocence is a human right.        H
    1064     SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A   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
B   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
C   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
0
    exceptional circumstances, such as those of statutes as
    referred to hereinabove, that the burden. on proof is on the
    accused. The statutory provision even for a presumption of guilt
    of the accused under a particular statute must meet the tests
    of reasonableness and liberty enshrined in Articles 14 and 21
E   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. Oattatraya G. Hegde, AIR
F   2008 SC 1325).

    INSTANT CASE:

       25. The instant case requires to be examined in the light
G 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,
H they went to Kozhikode, house of Benny (PW.10), and returned
              BABU v. STATE OF KERALA                      1065
                [DR. B.S. CHAUHAN, J.]

 on 22.5.2000. The deceased appeared in the examination of          A
  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      B
 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       c
  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        D
  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. Therefore, the appellant confronted deceased Sweety
· and she had told him that Benny (PW .10) had forcibly done it.
                                                                    E
  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.; .. 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          F
 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.
                                                                    G
      27. There is no direct evidence whatsoever regarding
 taking 0f 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          H
    1066     SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   Sini (PW.2), mother and sister of deceased Sweety deposed
    that there were three calls from outside by the appellant to
    Sweety just to know as to whether she had taken the said
    medicine. As per their evidence, two of the said three telephone
    calls i.e. 1st and 3rd calls were attended to by the deceased,
B   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
c   the appellant had called to check if she was going to sleep and
    whet11er 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 b?ck and told again to
    sleep". The Trial Court has observed that this would indicate
0
    that as per the prosecution's version of events, the deceased
    had already ta.ken the medicine containing Cyanide b~fore
    attending the third call. From the evidence of Dr. V.K.
    Ramankutty, Professor of Forensic Medicine (PW.17), it is
E   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 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
F   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
G   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
H   a few minutes." The Trial Court came to the finding of fact that
               BABU v. STATE OF KERALA                         1067
                 [DR. B.S. CHAUHAN, J.]

this aspect of the prosecution's case had not been sufficiently         A
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 had          B
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             C
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          D
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               E
Poulose (PW.9) both were sister and mother of the deceased
Sweety and had inimical feeling!" towards the appellant since
they have come to the conclusion that the appellant was
responsible for her death and their deposition had material
improvements from their statements recorded during                      F
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        G
. 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
                                                                        H
    1068     SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A   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:
B
         "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
c        recorded in that ..... I did not say to police 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."
D
        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. Jn case, the High Court as well
   as the trial Court found Krishnan (PW.14) to be unreliable and
E Paily (PW.21), the 1.0. 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
F 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
   pr.osecution has f,i'liled to establish that the appellant made
   three phone calls to the residence of the deceased prior to the
G ·incident.

         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
H
              BABU v. STATE OF KERALA                         1069
                [DR. B.S. CHAUHAN, J.]

an indication of the anxiety of the appellant. Thus, the very          A
genesis of the case stands falsified.

     30. Admittedly, the appellant and deceased were staying
with Benny (PW.10) on 30-31.5.2000. Omana Pou lose, mother
of the deceased (PW.9), had given two-three calls but Benny            B
(PW.10) did not talk to her and the explanation given by the
appellant was that as Benny (PW.10) had mis-behaved with
Sweety, she might have telephoned her mother. Thus, Omana
Pou lose (PW.9), wanted to talk to Benny (PW.10) seeking his
explanation, though, the deceased told her mother (PW.9) that          C
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).

      31. It is in evidence that the appellant had purchased a         D
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            E
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            F
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            G
supply to him. He simply stated that he used to purchase it from
Tamilians. Xavior (PW.7) supplied 1 Kg. sodium cyanide to the
appellant without making a receipt. He could not reveal the
amount he had taken. It is strange that a dealer, indulging in
an illegal business has trusted an unknown person and supplied
                                                                       H
    1070     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A 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
B 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
c 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
D   in the business of cleaning and colouring jewellery, and thus,
    knew how to use Sodium Cyanide. To kill a person, a small
    quantity of a few milligrams is enough. This meahs 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
E   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
F   2.6.2000 by L.K. Somanathan, Tahsildar (PW.18) and the
    clothes worn by the deceased were preserved which included
    Churidar Bottom (M.0.1 }, Bathing Towel (M.0.2), Chuddy
    (M.0.3), Brasiere (M.0.4) and Churidar Top (M.0.5). There is
    no explanation by the prosecution as to why only Churidar Top
G   (M.0.5) alone was sent for medical analysis As per the
    chemical analyst report in respect of Churidar Top (M.0.5), a
    yellowish water soluble material (stain) was found. However, it
    does not lead to the inference that M.0.5 contained any
    evidence of having Cyanide. Dr. V.K. Ramankutty (PW.17) has
H   stated that Sodium Cyanide is water soluble and since a water
              BABU v. STATE OF KERALA                      1071
                [DR. B.S. CHAUHAN, J.]

soluble stain was found on the Churidar Top, on chemical             A
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            B
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/      C
him about the unfortunate incident. It is even admitted by Benhy
(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     D
her to the hospital. Immediately after receiving a telephone call
at mid-night, Benny (PW.10) had left for Chalakudy from
Kozhikode and had reached Thrissur. He telephoned and came
to know that Sweety had died. No explanation could be
furnished by Omana Poulose (PW.9), mother of the deceased             E
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        F
 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.                               G

    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            H
    1072     SUPREME COURT REPORTS                  (2010} 9 S.C.R.


A   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
    day. As per Fr. Johnson Alappat (PW.8), it was a white colour
    material, but the analyst's rep9rt reveal that it was a yellowish
    colour. Two glasses and a container etc. were recovered and
B   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
C   kept under the sealed cover. ~ccording 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
D   hour and disclosed that "he loved one Della and hence, it was
    the cause of Sweety's qeath." 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
E   the truth and take proper action against 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
F       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
G       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
H
               BABU v. STATE OF KERALA                        1073
                 [DR. S.S. CHAUHAN, J.]

    new theory from his own imagination as it was nobody's case        A
    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.            B

      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        C
 statement recorded by the 1.0. 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         D
 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       E
 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 that has been provided for         F
 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               G
 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
                                                                       H
    1074    SUPREME COURT REPORTS                     [2010] 9 S.C.R.


A   (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 io establish a
    motive in the instant case.
B
       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
C incident about which the appellant had confronted the deceased,
  the possibility of some involvement of Benny (Pl/J.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
D 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.
E
      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
F was in a better position to evaluate their credibility. Thus, the
  High court ought not to have reversed the judgment of the Trial
  Court. The High Court observed as under:

        "..... that it was the accused and the accused only who
        could have caused her to take the poison. The above
G       circumstances clearly point only to the guilt of the accused
        and no circumstance has been brought to our notice,
        whi-:.:h is inconsistent with his guilt ..... ". (emphasis added)

       In fact, the High Court has erred in emphasising that onus
H to prove his innocence was on the appellant. It could not be the
              BABU v. STATE OF KERALA                       1075
                [DR. B.S. CHAUHAN, J.]

requirement of law. In fact the prosecution has to prove its case    A
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
                                                                     8
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.

N.J.                                            Appeal allowed.