Case: Ananda Poojary Vs. State Of Karnataka

the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The place and the maner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct – a feature which the two Courts have overlooked. We are of the opinion that this is a case where the evidence has to be looked into with a view to finding out whether the prosecution case can at all be accepted. The restriction on appreciation of evidence in an appeal by special leave is a self-imposed one and is not a jurisdictional bar. While we reiterate that ordinarily this Court would refrain from re-examining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self-imposed restriction.XX XX XX13. We are prepared to agree with Counsel for the State of Rajasthan that ordinarily a case of this type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand v. State (Delhi Administration), 1979 Cri.L.J. 329 and Kishan Chand Mangal v. State of Rajasthan, (1983) 1 SCR 569 , but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharge from his bail bond.” 32. Yet again in Suryamoorthi & Anr. v. Govindaswamy & Ors., (1989) 3 SCC 24 , the Court observed that discretion conferred by Article 136 of the Constitution is wide enough to permit this Court to interfere even on facts in suitable cases if the approach of the courts below had resulted in grave miscarriage of justice. “13. The learned counsel for the accused submitted that we should not disturb the concurrent findings of fact recorded by both the Courts. We are conscious of the fact that ordinarily this Court exercising jurisdiction under Article 136 of the Constitution is slow in substituting its findings of fact in place of those recorded by the courts below. However, this does not mean that this Court has no power to do so. The discretion conferred by Article 136 of the Constitution is wide enough to permit this Court to interfere even on facts in suitable cases if the approach of the courts below has resulted in grave miscarriage of justice. By way of self-imposed discipline, this Court does not ordinarily reappreciate or reassess the evidence unless it is of opinion that the approach of the courts below has resulted in failure of justice necessitating correction. If the courts below have misread the evidence resulting in miscarriage of justice it becomes the duty of this Court to interfere in the interest of administration of justice. In our view, the present is one such case which calls for interference. The approach of the courts below in doubting the capacity of PWs 1 and 2 to possess Rs.73,600/- and requiring them to prove how PW 2 had over a period of 10 years saved the said amount notwithstanding the find of Rs.33,600/-, was wrong and resulted in an erroneous conclusion.” 33. Legal position, explaining the contours and width of power under Article 136 of the Constitution was narrated in detail in Mahesh Dattatray Thirthkar v. State of Maharashtra, (2009) 11 SCC 141. After taking note of earlier precedents explaining the scope of Article 136 of the Constitution, position was summarised in para 22 and we reproduce the same: “22. From a close examination of the principles laid down by this Court in the aforesaid series of decisions as referred to herein above on the question of exercising power to interfere with findings of fact by this Court under Article 136 of the Constitution, the following principles, therefore, emerge: * The powers of this Court under Article 136 of the Constitution of India are very wide. * It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly. * When the evidence adduced by the parties in support of their respective cases fell short of reliability and acceptability and as such it is highly unsafe and improper to act upon it. * The appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. * The appreciation of evidence and finding results in serious miscarriage of justice or manifest illegality. * Where findings of subordinate courts are shown to be “perverse or based on no evidence or irrelevant evidence or there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship. * When the High Court has redetermined a fact in issue in a civil appeal, and erred in drawing interferences based on presumptions. * The judgment was not a proper judgment of reversal. 34.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is one more very crucial and critical circumstance which needs to be highlighted at this stage. Death took place on 1st March, 2006; UBR was registered only on 4th March, 2006 and postmortem conducted on 5th March, 2006. On that basis, FIR was registered on 7th March, 2006 wherein it was stated that the murder was committed by unknown persons. It shows that till that time, the appellant was not the suspect at all. Why and under what circumstances he came under cloud and roped in as an accused person, would be dealt with us a little later at an appropriate stage. For now, we revert back to the postmortem report. PW-1 is the doctor who conducted the postmortem and gave his report (Ex.P-1) in which he has stated that after the postmortem examination, he gave the tentative cause of death as cerebral and pulmonary oedema secondary to smothering. This opinion of his, which is only tentative, is based on his examination of the body whereby he observed certain external injuries. In his cross-examination, he categorically admitted that the type of contusion found on the body could be caused if that portion came in contact with rough and hard surface. He also admitted in the cross-examination that presence of alcohol was found in the dead body. Therefore, possibility cannot be ruled out that after consuming the alcohol, Dorathi might have fallen and hit herself on a rough and hard surface. This vital portion of the testimony of the doctor is not even adverted to and conveniently omitted from the discussion. It would be also relevant to point out at this stage even PW-2 namely Dr. Chandrashekhar under whose regular treatment the deceased was, had stated that the deceased had come to his hospital for treatment on 05.11.2005, 08.11.2005 and 25.11.2005. He also categorically mentioned that at that time, she was treated for hypertension and depression. He also mentioned that she was an alcoholic and he had advised her to quit drinking. Even this part of testimony of PW-2 is overlooked by the courts below.21. In the aforesaid scenario, it cannot be said with certainty as to whether Dorathi died of smothering or being a heart patient, the actual cause of death was cardiac arrest. In such circumstances, when there was a possibility of both the causes of death, in the absence of clear certainty about the cause, we are of the opinion that High Court committed an error in not giving benefit of doubt to the accusedfind that very curious aspect is attributed as a motive on the part of the appellant. It is stated that in the Will, a condition was put that the appellant will succeed to the estate of Dorathi only if he marries a Christian lady and the appellant who was Hindu by religion did not want to marry a Christian girl. This gives rise to an important poser: whether killing of Dorathi would have solved this dilemma of the appellant, if at all such dilemma was there. Answer is to be emphatic NO. Death of Dorathi, natural or unnatural, would have the only consequence of bringing the Will as operational. That would not and could not wipe off the aforesaid condition stated in the Will. Therefore, it can hardly be treated as a motive on the part of the appellant to kill Dorathi. On the other hand, having regard to very cordial and lovable relationship between the appellant and Dorathi which was as pious as mother and son, it was very unlikely that appellant would kill Dorathi even when Dorathi had already Willed away her properties in favour of the appellant. One has to keep in mind another important aspect namely Dorathi was of advanced age and was suffering from hypertension, depression and other old age related ailments. Therefore, no purpose could have been achieved by killing such a helpless lady, a littlealleged recoveries are nothing but make belief. We get an uncanny feeling that this aspect is introduced just to make the appellant a suspect and thereafter to rope him in a case of murder. It is a matter of record that Will, documents relating to investments and jewellery were handed over to the appellant and, therefore, they were in his rightful possession. He had not taken away and kept these things at any other place. The so called recovery is from the house itself. It is from the service station, which is situated in the same house where all lived. Therefore, this could not have been a circumstance from which an adverse inference is drawn. We hardly see this to be valid reason to suspect thearguments, we put a query to the learned counsel for the parties as we were curious about the properties of the deceased which she had bequeathed to the appellant. A very disturbing, but crucial, aspect emerged from the answer given by the parties which was that these assets were disposed of by PW-3 and his brother when the trial of the case is still on and the verdict of guilt had not been pronounced by the Session Judge. This speaks volume about many possibilities and bolsters our conclusion that the appellant is an innocent person who has been roped in, in a false case with a view to rob him of the properties and assets which Dorathi had Willed to the appellant out of her love and affection, to the exclusion of all others including PW-3 and his brother who is a resident ofalso inquired about the whereabouts of Rudolph, mentally challenged brother of Dorathi. The answer was equally startling. We were informed that within few months of Dorathis death, he also died. Obviously, with the appellant in jail, there was nobody to look after and take care of Rudolph. His foster brother Anthony Kutinho (PW-3) and other brother Simon Kutinho (resident of America) did not care to look after him, after the arrest of theare conscious of the fact that with the aforesaid analysis of the evidence, we have interfered with the findings of the courts below. However, having regard to the seriousness of the nature of imputation, viz. that of murder, coupled with the fact that findings of the courts below are the result of ignoring vital material and unsustainable inferences, such an exercise is permissible under the law.