VARKEY JOSEPH versus STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE PUTHENCRUZM, KERALA

Citation: [1993] 3 S.C.R. 390 · Decided: 27-04-1993 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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VARKEY JOSEPH 
v. 
STATE OF KERALA, REPRESENTED BY 
THE CIRCLE INSPECTOR OF POLICE 
PUTHENCRUZM,KERALA 
APRIL 27, 1993 
· [K. RAMASWAMY AND R.M. SAHAI, Jj.J 
Constitution of India, 1950: 
Article 134-Appeal-Concurrent findings of trial Court and High 
Court-Supreme Court's interference-Whether trial unfair illegal-Prosecwion 
case whether proved-Appreciation of evidence by Supreme Court-Leading 
q1iestion--What-When to ask-Courr's duty. 
Penal Code, 1860: 
Section 302-Murder-Conviction-Appreciation of evidence by Supreme 
Court in appeal-Leading question- Prosedure-Procec111ion case whether 
proved. 
Evidence Act, 1872: 
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Sections 142. 145. 154-Leading question-What-:--When to 
ask-Intention-Court's duty. 
The prosecution case was that the deceased, a discharged military 
officer managed to have complete hold of the properties of his father and 
excluded his six brothers and four sisters from enjoyment of the p·roperties. 
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The appellant, the youngest brother of the deceased, resented his conduct. 
Later on there was reconciliation between the appellant and the deceased. As 
the appellant nursing grivance against the deceased for his ohstinance to 
exclude him of right ofresidence in their "family property, on 5.8.1988 he came 
to their family house and bolting the door inside, killed the deceased inflicting 
on the body of the deceased 17 incised injuries and one stab injury. 
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The appellant was charged under section 302, lPC. Before the trial 
Court, the prosecution, rel~·ing on the circumstances, \iamely;to motive of 
the accused, (2) preparation, (3) presence of accused in the neighbourhood 
and in the locality immediately before the occurrence, (4) presence of the 
accused in the house on the date of occurrence, (5) his presence immediately 
after th~ occurrence, (6) recoveries pursuant to accused's statement under 
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section 27, and (7) injury found on the finger of the accused, claimed to have 
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VARKEY JOSEPH i·. STA TE OF KERALA. 
391 
· established that the appllant committed the offence of murder. 
The trial Court found the appellant guilty and convicted him under 
section 302, IPC and sentenced him to undergo rigorous imprisonment for life 
for causing the death of his brother. High Court confirmed the comktion on 
appeal. Hence this appeal by special leave. 
Allowing the appeal, this Court, 
HELD: 1.1. Normally when the Trial Court and the High Court 
concurrently found that the accused has committed the crime. this Court 
would refrain to appreciate the evidence. On going through the judgments of 
the Sessions Court and the High Court this Court entertained doubt regard· 
ing the conclusiveness of the appellants' complicence. Therefore, this Court 
directed the appellant to produce the evidence. Accordingly the typed evi· 
dence has been pl'aced on record. From the evidence this Court is satisfied that 
the Courts below did not subject the evidence to critical analysis on the 
touchstone of human conduct and probabilities and OV\\rfo6ked material 
admissions and obvious unfair trial and incurable irregularities leading to 
grave prejudice to the appellant and miscarriage of justice. (395-A-B) 
1.2. From the evidence it is clear that prosecution brought on record the 
circumstantial evidence from obliging witnesses to the police. Appellant was 
said to have been seen before or after the occurrence by several tea shop 
owners and the labourers in the tea stall etc. To corroborate the evidence of 
tea stall owners, labourers were examined that they had seen the appellant 
with blood stained clothes and same were recovered pursuant to the state· 
ment under s. 27 of Evidence Act. It is preposterous to place absolute reliance 
on such suspect evidence. It is curious that the appellant claimed to have gone 
to each tea stall for tea just to enable them to note his movements. The normal 
human conduct would be to avoid any-body noticing him either before or after 
committing the offence. It is highly unbelievable that he had used two types 
of-weapons one stabbing and another cutting weapon. (398-E·F) 
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1.3. The'criminal trial was unfair to the appellant and the procedure 
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adopted in the trial is obviously illegal and unconstitutional. The Sessions 
Court in fairness recorded the evidence in the form of questions put by the 
prosecutor and defence counsel and answers given by each witness. As seen 
the material part of the prosecution case to connect the

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