Babu vs State Of Kerala

2. This is a most unfortunate case, in which, a young, B.Com 2nd year student, Sweety died under mysterious circumstances within 15 days of her marriage in her parent's house at Chalakudy. The appellant, Babu, is post-graduate and at relevant time had been employed in the Gulf in a firm, namely, Alukkas Jewellery dealing with golden Jewellery. The couple, after marriage on 15.5.2000, stayed for two days with the brother of the appellant at Ollur and they came back to Chalakudy on 17.5.2000, as the parents of Sweety had arranged a reception for them at their house. The couple stayed there for two days and left for Kozhikode on 19.5.2000 and stayed in the house of Benny (PW.10), a friend of the appellant. The couple came back on 22.5.2000 to Chalakudy, the family house of the deceased, Sweety. The couple again went to Kozhikode on 30.5.2000 to attend the marriage of Benny (PW.10) with one Seethal, which was scheduled to be held on 31.5.2000 and returned to Chalakudy, at 4.00 p.m. on 1.6.2000. The appellant left Sweety at her parent's house and went to Amala Hospital to meet his sister and mother as his mother had undergone an operation for cancer and was 2 convalescing. The appellant returned to Sweety's house at about 10.30 p.m. and found that door of her room was bolted from inside and there was no response on calling to her. The door was broke opened by the appellant and Sweety's father. Sweety was found unconscious lying on the floor. She was taken to the Government Hospital, Chalakudy, where she was declared dead by the doctors. Poulose (PW.1), father of the deceased lodged an F.I.R. on 2.6.2000 at 7.00 a.m. and it was registered as Crime No. 242 of 2000. The inquest was conducted on the same day and post mortem was conducted on 3.6.2000, and the deceased was buried thereafter. Paily (PW.21), the Deputy Superintendent of Police while conducting the investigation of the case received information that just few days prior to the incident the appellant had procured Cyanide, thus, he was arrested on 26.6.2000. An alleged confessional statement was made by the appellant that he had purchased Sodium Cyanide from the shop of Xavior (PW.7), who was dealing with jewellery as well as Sodium Cyanide. Xavior, PW.7 made a statement that the appellant had procured 1 Kg. Sodium Cyanide from him between 25.5.2000 and 27.5.2000. 3 The post mortem report revealed that Sweety died of Cyanide poisoning. As per the statement of Omana Poulose (PW.9), mother of the deceased Sweety, the poison was given to Sweety by the appellant under the guise of giving her an ayurvedic contraceptive medicine. Paily (PW.21), the Investigating Officer completed the investigation and submitted a charge sheet against the appellant for the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter called as `IPC'). The appellant pleaded not guilty to the charge of murder and claimed trial. The prosecution examined 21 witnesses in support of its case. Appellant in his statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.') stated that he was innocent and there was a possibility of the involvement of Benny (PW.10), who had misbehaved with Sweety and had sexual intercourse with her on 31.05.2000 when the couple was staying with him. More so, Sweety might have committed suicide because of feelings of guilt for that reason. The Trial Court dis-believed the prosecution witnesses and acquitted the appellant vide judgment and order dated 8.4.2003.

The incident occurred within a very short span of time after the marriage of the deceased with the appellant. They got married on 15.5.2000 and went to Ollur for two days and came back to Chalakudy, the house of the deceased. On 19.5.2000, they went to Kozhikode, house of Benny (PW.10), 2 and returned on 22.5.2000. The deceased appeared in the examination of B.Com 2nd Year on 23.5.2000. The appellant stayed with his brother at Ollur on 26th/27th May, 2000 as he was not feeling well. Omana Poulose (PW.9), mother of the deceased had gone to his brother's house on 27.5.2000 to know the health condition of the appellant's mother as she was suffering from cancer and was to be operated on 30.5.2000. At the instance of the deceased and Omana Poulose, (PW.9), the appellant along with deceased Sweety attended the marriage of Benny (PW.10) on 31.5.2000 at Kozhikode. Immediately after the marriage of Benny (PW.10), his wife Seethal had gone to her parents' house as there was some problem because it was a love marriage and her family members were not happy with the marriage and did not participate in the marriage on 31.5.2000. When the appellant and deceased Sweety were staying with Benny (PW.10), the appellant had taken liquor and had gone outside to make a call to his employer in the Gulf and when he came back after some time he saw the deceased and Benny (PW.10) in a compromising position and did not like the situation. 2 Therefore, the appellant confronted deceased Sweety and she had told him that Benny (PW.10) had forcibly done it. All these explanations had been furnished by the appellant in his statement under Section 313 Cr.P.C.

15. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other 1 view is possible should be avoided, unless there are good reasons for interference.

29. We are of the opinion that all of the aforesaid circumstances raise great doubts about the prosecution's theory regarding the three phone calls by the appellant to the residence of the deceased on the evening of the incident, being an indication of the anxiety of the appellant. Thus, the very genesis of the case stands falsified.

37. In view of the above, the judgment and order of the High Court impugned herein dated 5.8.2008 in Criminal Appeal No.908 of 2004 is hereby set aside and judgment and order of the Trial Court dated 8.4.2003 is restored. The appellant be released forthwith if he is in custody and not wanted in any other case. The appeal is allowed accordingly.