Sec.302 I.P.C - Appreciation of evidence –Whether the Apex court can interfere and reappraise the entire evidence at second appeal – yes - allegations that accused killed her foster mother – all evidence accepted that foster mother and her brother mentally handicapped was looking after well by the Accused and as such she executed a will deed in favour of accused on condition to marry a Christian girl – she has not bequeathed any property to her other brothers –foster mother was taken to hospital on Cardiac Arrest – after treatment , she failed to recover and died- Doctor gave a certificate also to that effect – in post-mortem it was alleged that she was died due to Asphyxia as a result of smothering – both courts convicted the accused for life – Apex court held that lower courts failed to take notice that pending case some of the properties were sold by her brothers and also failed to take notice that mentally handicapped brother was also died within few days after her death as her remaining brothers failed to take care of him and also as the accused was behind the bars and further held that lower courts failed to take notice of the fact that due to condition in the will deed to marry a Christian Girl, by killing foster mother, the accused would not get any property of her immediately – motive failed as alleged by prosecution and also failed to take notice that all jewellery and cash were in safe in the same home, accused has not stolen anything and also failed to take notice that all the recoveries are make belief stories only and held that 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 – Apex court allowed the appeal and set aside the conviction –2015 S.C.(2014) MSK Law Reports 6
Sadly, on 1st March,
2006, Dorathi Kutinho had to rush to a
hospital.
As per the appellant, she had complained of
chest pain. By the
time she
reached the hospital,
she had died. The doctor who
examined her issued
a
certificate stating
that she had died of cardiac arrest.
However, as per
the postmortem done
few days later, the cause of death
was found to be
Asphyxia as a result
of smothering. The appellant
was roped in
as an
accused committing
murder of Dorathi Kutinho and was
put to trial.
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 little
prematurely.
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.
The result of the
aforesaid discussion would be to allow this
appeal,
giving the appellant
benefit of doubt.
The appellant is
accordingly
acquitted of the
charge. He shall be released forthwith.
-