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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 – 2014 (10) S.C. 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


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. -2014(10) S.C. MSK Law Reports 6


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