# BABU v. STATE OF KERALA

- **Citation:** [2010] 9 S.C.R. 1039
- **Court:** Supreme Court of India
- **Decided:** 2010-08-11
- **Case number:** Criminal Appeal No. 104 of 2009
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/babu-v-state-of-kerala-26829
- **Pages:** 37

## Headnote

A
B
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 appellanth 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

## Text

_Characters 0–39,919 of 68,869. This is a partial read: ask again with offset=39919 for what follows._

[2010] 9 S.C.R. 1039
BABU
v.
STATE OF KERALA
(Criminal Appeal No. 104 of 2009)
AUGUST 11, 2010
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
A
B
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 appellanth 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]
2.2. The findings of fact recorded by a court can be
held to be perverse if the 1findings have been arrived at
D
by ignoring or excluding relevant material or by taking
into consideration irrelevant/inadmissible material. The
finding may also be said to be perverse if it is 'against the
E
weight of evidence', or if the finding so outrageously
defies logic as to suffer from the vice of irrationality. [Para
16] [1060-E-F]
Rajinder Kumar Kindra v. Delhi Administration AIR 1984
SC 1805; H.B. Gandhi & Ors. v. Gopi Nath & Sons 1992
supp. (2) SCC 312; Triveni Rubber & Plastics v. Collector
of Central Excise, Cochin AIR 1994 SC 1341; Gaya Din (D)
F
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.
5. Every accused is presumed to be innocent unless
B
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;
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.
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
F
G
. '
-
'
.
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.17dcotor, 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] [1069D-H; 1070-A-C]
6.6. There is ample evidence on record to show that
B
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
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
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
soluble stain was found on the Churidar Top, on chemical
examination Sodium Cyanide could have been detected.
[Para 32] [1070-D-H; 1071-A]
D
E
F
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.Spriest 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]
6.10. In view of the fact that PW.10 had developed
G
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]
G
H
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.
Case Law Reference:
AIR 1974 SC 2165
AIR 1991 SC 315
AIR 2003 SC 1104
Relied on
Relied on
Relied on
Para 7
Para 7
Para 7
BABU v. STATE OF KERALA
1051
(2004) 1 o 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
c
AIR 1934 PC 227
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) 1 o sec 450
Referred to
Para 11
F
(2009) 9 sec 368
Referred to
Para 12
(2009) 4 sec 211
Referred to
Para 13
(2009) 1 o sec 401
Referred to
Para 14
AIR 1984 SC 1805
Relied on
Para 16
G
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) 1 o sec 636
Relied on
Para 16
AIR 1999 SC 677
Referred to
Para 17
B
(2008) 15 sec 430
Relied on
Para 18
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
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
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
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
A
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.
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
E
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
0 Sweety, the poison was given to Sweety by the appellant under
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
[DR. B.S. CHAUHAN, J.]
1055
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
appearing for the appellant, has submitted that the High Court
should not have interfered with the judgment and .order of
acquittal by the Trial Court in a routine manner. The findings of
the Trial Court could not be held to be perverse, being based
on irrelevant material i.e. evidence on record. The Trial Court
had rightly dis-believed the prosecution witnesses as it had an ·
opportunity to watch their demeanour in the court, and to assess
their credibility. The acquittal by the Trial Court bolstered the
presumption of innocence of the appellant. However, the High
Court erred gravely holding that the circumstances pointed out
to the guilt of the appellant and no circumstance had been
brought to the notice of the court which was inconsistent with
his guilt. More.so, while reversing the judgment of acquittal' as
recorded by the Trial Court, the High Court imposed a fine of
D
E
F
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
8
that no one else except the appellant had an opportunity to
commit the offence as he was fully aware that Cyanide is used
for purification and colouring of gold jewellery and he succeeded
in procuring Sodium Cyanide from Xavior (PW.7). The Trial
Court had wrongly dis-believed all the prosecution witnesses.
The High Court had re-appreciated the entire evidence and
C recorded a finding of guilt which does not warrant interference
by this Court. Appeal lacks merit and is liable to be dismissed.
D
6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
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).
c
8. In Sheo Swarup and Ors. v. King Emperor AIR 1934 PC
227, the Privy Council observed as under:
" ... the High Court should and will always give proper weight
and consideration to such matters as (1) the views of the
trial Judge as to the credibility of the witnesses, (2) the
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 .... "
F
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;
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
A
8
c
D
E
F
G
1058
SUPREME COURT REPORTS
[2010] 9 S.C.R.
"(1) An appellate court has full power to review, reappreciate 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
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court
of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
11. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC
450, this Court re-iterated the said view, observing that the
appellate court in dealing with the cases in which the trial courts
H have acquit~ed the accused, should bear in mind that the trial
BABU v. STATE OF KERALA
[DR. B.S. CHAUHAN, J.]
1059
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;
(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
miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the
record of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering
E
F
G
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
[DR. B.S.