State Of U.P vs Mohd. Iqram & Anr

State of U.P. ...Appellant

Versus

Mohd Iqram & Anr. ...Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These appeals have been preferred by the State of U.P. against

the judgment and order dated 25.04.2003 passed by the High Court of

Judicature at Allahabad in Criminal Appeal Nos. 14 and 60 of 1981,

reversing the judgment and order of the Sessions Court dated

20.12.1980 in Session Trial No. 382 of 1980 passed by the learned

District Judge, Saharanpur, by which both the respondents stood

convicted under Section 302 read with Section 34 of the Indian Penal

Code, 1860 (hereinafter called as `IPC') and had been awarded life

imprisonment.

2. The brief resume of the facts as emerging from the FIR and the

evidence adduced by the parties is set forth:

(A) One Rashmi, deceased, aged about 30 years had been married to

Suresh Kumar (accused, acquitted by the Sessions Court), but her

relations with him and her mother in law always remained strained.

They had no child. Suresh Kumar obtained a decree of divorce on

30.01.1980 under Section 13 of the Hindu Marriage Act, 1955 and as

per the decree, Rashmi, deceased, was permitted to reside in a room

with an enclosed open area towards its West, apart from the rest of the

house, and she was granted maintenance @ Rs.150/- per month till her

life time or remarriage, whichever was earlier. Being aggrieved,

Rashmi, deceased, had preferred an appeal against the said decree of

divorce dated 30.01.1980 and the same was pending before the District

Judge, Saharanpur.

(B) On 15.0.5.1980 at about 9.00 P.M., S.I. Brahm Pal Singh (PW.6)

of Police Station Sadar Bazar accompanied by Head Constable Balvir

Singh (PW.7) and other two constables was on a routine check-up and

general patrolling. On reaching the West of Adarsh School in the close

vicinity of the house of Rashmi, deceased, he and his companions

heard shrieks emanating from the house of Suresh Kumar accused

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known as "Jagadhari Walon Ki Kothi". The police party saw three

persons scaling down the wall of the Sahan towards West of the room

under the occupation of Rashmi, deceased.

(C) On being challenged and flashing of torch light, two of them ran

towards North West and the third towards South. On a chase, the

present two respondents who were running towards North West, were

caught hold by Samay Singh (PW.8) and one Sharif who was present

there. The other accused who ran towards South, managed to escape.

He was named as Suresh Kumar by the present two respondents after

they had been apprehended. The respondents led the police party

inside the Sahan of the said house. The lock inside the door opening in

the Sahan was broken by S.I. Brahm Pal Singh (PW.6) and a woman

was seen lying unconscious on the floor in the room on a cot. In the

meanwhile, Mahesh Kumar (PW.3), (brother of Suresh Kumar), also

came down from the upper storey besides other persons. Mahesh

Kumar (PW.3) took Rashmi, deceased, by car to S.B.D. Hospital,

Saharanpur. The respondents had been taken to the police station Sadar

Bazar where FIR was lodged by S.I. Brahm Pal Singh (PW.6).

However, on receiving the information of death of Rashmi, deceased,

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at about 11.00 P.M. from Mahesh Kumar (PW.3), the case was

converted under Section 302 IPC and investigation ensued.

(D) The post-mortem of the dead body was conducted by Dr. G.R.

Sharma (PW.1) on 16.05.1980, according to which the deceased was

about 30 years of age and had died about 18 hours from the time of

conducting post-mortem. The doctor found the following ante-mortem

injuries on her person:

(1) Lacerated wound 1 = cm x 1 = cm x < cm on left eyelid

with contusion 7.5 x 2 cm extending from left eyelid to left

temple region.

(2) Abrasion 4 x = cm on left cheek.

(3) Abrasion 1 = cm x > cm on left side neck, 2 cm below angle

of mandible.

(4) Abrasion = cm x = cm with contusion 1 = cm x 1 cm on the

right side of neck, 4 cm below angle of mandible.

(5) Abrasion 1 = cm x 1 cm on back of left shoulder joint top.

(6) Abrasion 1 cm x 1 cm on back of left elbow joint.

(7) Contusion 5 cm x 3 cm on right forearm upper 1/3rd medial

side.

(8) Contusion 4 cm x 2 cm on back of inner angle of scapula.

(E) Suresh Kumar was also arrested on 23.05.1980 and he was kept

bapurdah. He was subjected to test identification parade on 6.6.1980

and was identified by S.I. Brahm Pal Singh (PW.6), Head Constable

Balvir Singh (PW.7) and Samay Singh (PW.8) besides Babu Ram and

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Surendra Pal. As all the three accused pleaded not guilty, they were

put to trial. The prosecution, in all, examined 13 witnesses. The

respondent Mohd. Iqram also examined one Bhugan (DW.1), the

Pradhan of village Taharpur in his defence.

(F) On consideration of the evidence on record, the learned trial

court convicted and sentenced the two respondents as mentioned

hereinabove, but acquitted Suresh Kumar (husband of deceased

Rashmi) giving him benefit of doubt entirely on the premise that he

might have been known to the identifying witnesses from before, and

he was shown to the witnesses before being put to test identification.

(G) Being aggrieved, the two respondents filed Criminal Appeal

Nos. 14 and 60 of 1981 before the Allahabad High court which have

been allowed by the judgment and order dated 25.04.2003. Hence,

these appeals.

3. Shri R.K. Gupta, learned counsel appearing on behalf of the

State of U.P., has submitted that the High Court committed an error in

acquitting the respondents without appreciating the facts on record.

The trial court had convicted the respondents on circumstantial

evidence making clear cut observations that the chain of

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circumstances was complete; the said respondents had been arrested

from the place of occurrence; their presence was not likely to be there

as they were not the residents of the area; there had been no theft or

dacoity in the area. Rashmi, deceased, was strangulated with hands

without the aid of any weapon. The High Court ordered acquittal on

the basis that no weapon had been recovered and probably Suresh

Kumar, who had been acquitted by the trial court had committed the

murder after committing rape on the deceased, though the trial court

had recorded a finding that there had been no violence with the body

of the deceased even prior to her strangulation. The High Court has

placed reliance on inadmissible evidence which is not permissible in

law. The judgment and order of the High Court is liable to be set

aside and the appeals deserve to be allowed.

4. On the contrary, Smt. K. Sarada, learned amicus curiae, has

vehemently opposed the appeals contending that the High Court had

given cogent reasons while acquitting the respondents. This Court

should not interfere with the said order as it is based on proper

appreciation of evidence. No motive could be established against the

respondents, thus, appeals are liable to be dismissed.

6 5. We have considered the rival submissions made by both the

learned counsel for the parties and perused the record.

6. As it is a case of acquittal, this Court has to be slow in

interfering with the impugned judgment and order and it is

permissible to reverse the judgment of acquittal only on settled

principles of law. This Court will have to record conclusions that the

findings of fact recorded by the High Court are perverse and, for that

purpose, it is necessary for us to make reference to the evidence on

record very briefly.

7. Mahesh Kumar (PW.3) is the brother of accused Suresh Kumar,

husband of Rashmi, deceased. He had deposed that on 15.5.1980 at

about 9.00 P.M., he was on the roof of his house alongwith his

another brother. He heard shrieks from the room of Rashmi, deceased.

He flashed the light of torch towards the same and found that 2-3

persons were running away from there. He immediately came down

stairs and found that some persons had already gathered there. He

found that these two respondents had been apprehended by the police

and local persons present there. He had gone alongwith these

respondents and police to the room of the deceased and found her

lying on the cot. Mukesh Kumar (PW.3) took her to the hospital

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where she was declared dead. S.I. Brahm Pal Singh (PW.6) has

supported the prosecution case by stating that when he was on patrol

duty on 15.5.1980 and reached near the place of occurrence, he heard

some noise from the residence of Rashmi, deceased. He immediately

went towards the said house and found that three persons were scaling

down the Western wall of the building. The police party chased them

alongwith other persons and apprehended them. Samay Singh (PW.8)

and Sharif had also reached there. One person escaped. Constable

Balvir Singh (PW.7) who had accompanied S.I. Brahm Pal Singh

(PW.6) deposed that they found three persons scaling down the

Western wall of the house and police alongwith other persons chased

them and apprehended two persons while one escaped. Samay Singh

(PW.8) has also made a similar statement supporting the case of the

prosecution. Om Prakash Chaudhry, a practicing advocate, had

deposed about the strained relationship between accused Suresh

Kumar and deceased Rashmi and further deposed that Rashmi,

deceased, had told him 2-3 times that she had an apprehension of

being killed by Suresh Kumar, accused and his mother in law. The

prosecution case stands further supported by Dr. G.R. Sharma (PW.1),

who had conducted the post-mortem examination and in the report

opined that injuries on the person of Rashmi, deceased, could be

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caused by strangulation and use of force.

8. After appreciating the aforesaid evidence including the

deposition of Bhugan (DW.1), the trial court came to the conclusion

that Suresh Kumar, accused, had no motive and his identification was

also not reliable and acquitted him by giving the benefit of doubt.

9. The respondents were convicted by giving cogent reasons on

the basis of the following grounds:

7 None of the accused persons belonged to the locality or even to

the city.

7 No suggestion came to be made from their side as to what could have brought them to the spot at the moment.

7 They were utter strangers to the area operating under cover of

darkness and seen scaling down the wall in a bid to run away.

7 Upon being taken into custody they took the police party inside

the western Sahan and then to the apartment occupied by the

deceased.

7 The medical evidence did not suggest that there was rape or

anything of the kind attempted on Smt. Rashmi. Nor did the

investigation reveal any case of theft.

7 The purse of the deceased was found intact in the room besides

the sum of Rs.107/- and odd. None of the articles was shown to

have been taken away. The object behind those who operated

inside the room, therefore, could not have other than to kill Smt.

Rashmi.

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7 Death was possible in the medical opinion also, to be caused by

strangulation with the hands without the application of any other

instrument or weapon.

10. The High Court after appreciating the evidence acquitted the

respondents on the basis of the following findings:

(I) The simple fact of their running in the lane at

that moment could not be sufficient to fasten the guilt

on their heads. There is no corroboration of any

independent witness that the accused had scaled down

the Western wall of the house.

(II) The deceased was a continuous source of trouble

to her husband Suresh Kumar. She was not reconciled

to the divorce granted in favour of her husband and she

had challenged the same before the appellate court and

her husband had also been burdened with the liability

to pay maintenance to her till her life time. Further

observations made by the Court read as under:

"The post-mortem report shows that seminal

fluid was found in her vaginal part and several

ante-mortem injuries had also been inflicted on

her. The autopsy indicated as if she was subject

to forcible intercourse also before her death.

The greater possibility is that it was her

husband who cut short her life after inflicting

several injuries on her and strangulating her,

but before doing that he even had forcible

sexual intercourse with her exhibiting sadistic

tendency. He did her to death this way,

removing the thorn from his way for all times

to come. After committing the crime, he

managed the vanishing trick from the scene.

The said feature is that the case was given a

different profile relating to him, not coming up

to the standard required to find him guilty."

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(III) There was no electric supply at the relevant time.

Thus, identification of the accused while scaling down

the wall becomes doubtful.

(IV) The weapon used in the offence had not been

recovered.

11. In the aforesaid fact-situation, the case requires very close

scrutiny.

Dr. G.R. Sharma (PW.1) had deposed that the injuries could be

caused by strangulation by hands. Thus, the question of recovering

any weapon as mentioned by the High Court, is totally unwarranted

and uncalled for. More so, nature of the injuries itself reveal that for

causing such injuries, no weapon was required. Non-use of weapon

cannot be illogical, keeping in view the findings recorded in the post

mortem report.

12. So far as the issue of rape of the deceased prior to her murder

by Suresh Kumar, accused, her ex-husband, is concerned, the trial

court has recorded findings of fact on this aspect in the negative.

Undoubtedly, post-mortem report contains such observations, but Dr.

G.R. Sharma (PW.1) has not made any such reference either in his

examination-in-chief or cross-examination. Nor this aspect had ever

been put to either of the three accused in their statements recorded

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under Section 313 of Code of Criminal Procedure, 1973 (hereinafter

called `Cr.P.C.'). We fail to understand as under what circumstances

it was permissible for the High Court to make such observations about

the post-mortem report. Accused Suresh Kumar has been acquitted

by the trial court. The State, for reasons best known to it, did not

prefer any appeal against the said order of acquittal. We are of the

considered opinion that it was not permissible for the High Court to

castigate the accused Suresh Kumar with such observations holding

him guilty of committing rape and subsequently murder of his ex-wife

Rashmi. Undoubtedly, the post-mortem report had been proved but

that does not mean that each and every content thereof is stood proved

or can be held to be admissible. Such observations cannot be termed

to be a substantive piece of evidence. Dr. G.R. Sharma (PW.1) did not

even whisper about the same in his statement made in the court which

is the only substantive piece of evidence in law. The court cannot

place reliance on incriminating material against the accused, unless it

is put to him during his examination under Section 313 Cr.P.C. Thus,

the High Court committed an error by taking into consideration the

inadmissible evidence for the purpose of deciding the criminal appeals

and holding the person guilty who had already been acquitted by the

trial court. The post-mortem report had been examined at the time of

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framing of the charges. The trial court did not frame any charge under

Section 376 IPC or Section 376 read with Section 511 IPC. More so,

no witness had ever mentioned anything in this respect. Thus, it is

beyond any stretch of imagination of any person, how such

observations could be made by the High Court.

13. No matter how weak or scanty the prosecution evidence is in

regard to certain incriminating material, it is the duty of the Court to

examine the accused and seek his explanation on incriminating

material that has surfaced against him. Section 313 Cr.P.C. is based

on the fundamental principle of fairness. The attention of the accused

must specifically be brought to inculpatory pieces of evidence to give

him an opportunity to offer an explanation if he chooses to do so.

Therefore, the court is under a legal obligation to put the incriminating

circumstances before the accused and solicit his response. This

provision is mandatory in nature and casts an imperative duty on the

court and confers a corresponding right on the accused to have an

opportunity to offer an explanation for such incriminatory material

appearing against him. Circumstances which were not put to the

accused in his examination under Section 313 Cr.P.C. cannot be used

against him and have to be excluded from consideration. (Vide:

13 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC

1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992

SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand,

AIR 2011 SC 200)

14. In State of Bihar and Ors. v. Radha Krishna Singh & Ors.,

AIR 1983 SC 684, this Court dealt with the issue of prohibitive value

of the contents of an admitted document and held as under :-

"Admissibility of a document is one thing and its

probative value quite another-these two aspects

cannot be combined. A document may be admissible

and yet may not carry any conviction and weight of

its probative value may be nil......"

(See also: Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933)

Thus, even if the post mortem report revealed any sexual

assault on the deceased victim, such contents are not admissible, in

spite of the fact that the post mortem report had been exhibited and

proved by Dr. G.R. Sharma (PW.1), in view of the facts mentioned

hereinabove.

15. So far as the question of the source of light and identification of

the accused are concerned, the depositions of Mahesh Kumar (PW.3),

brother of Suresh Kumar-accused, Brahm Pal Singh, S.I. (PW.6),

Balvir Singh (PW.7) and Samay Singh (PW.8) reveal that there were

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minimum three torches which had been flashed simultaneously on the

persons who were scaling down the wall and were being chased by the

police as well as by the local residents including Samay Singh (PW.8).

In such a fact-situation, failure of electric supply does not become

fatal.

Brahm Pal Singh (PW.6) and Balvir Singh (PW.7) have

identified the respondents being the persons who were scaling down

the wall and had been apprehended upon an immediate chase.

Therefore, the High Court erred in recording the finding that

identification was doubtful.

Once the prosecution had brought home the evidence of

the presence of the accused at the scene of the crime, then the onus

stood shifted on the defence to have brought forth suggestions as to

what could have brought them to the spot at that dead of night. The

accused were apprehended and therefore, they were under an

obligation to rebut this burden discharged by the prosecution, and

having failed to do so, the trial court was justified in recording its

findings on this issue. The High Court committed an error by

concluding that the prosecution had failed to discharge its burden.

15 Thus, the judgment proceeds on a surmise that renders it

unsustainable.

The trial court did not find evidence of Bhugan (DW.1),

examined by Mohd. Iqram, one of the respondents , worth acceptance.

16. The High Court did not even make any reference to him. It is a

settled legal proposition that in exceptional cases where there are

compelling circumstances, and the judgment under appeal is found to

be perverse i.e. the conclusions of the courts below are contrary to the

evidence on record or its entire approach in dealing with the evidence

is patently illegal, leading to miscarriage of justice or its judgment is

unreasonable based on erroneous law and facts on the record of the

case, the appellate court should interfere with the order of acquittal.

While doing so, the appellate court should bear in mind the

presumption of innocence of the accused and further that the acquittal

by the courts below bolsters the presumption of his innocence.

Interference in a routine manner where the other view is possible

should be avoided, unless there are good reasons for interference.

(See : Babu v. State of Kerala, (2010 (9) SCC 189; Dr. Sunil

Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra,

(2010) 13 SCC 657; Brahm Swaroop & Anr. v. State of U.P., AIR

2011 SC 280; S. Ganesan v. Rama Raghuraman & Ors., (2011) 2

SCC 83; V.S. Achuthanandan v. R. Balakrishna Pillai & Ors.,

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(2011) 3 SCC 317; State of M.P. v. Ramesh & Anr., (2011) 4 SCC

786; Abrar v. State of U.P., (2011) 2 SCC 750; and Rukia Begum &

Ors. v. State of Karnataka, (2011) 4 SCC 779).

17. In the instant case, the circumstantial evidence is so strong that

it points unmistakably to the guilt of the respondents and is incapable

of explanation of any other hypothesis that of their guilt. Therefore,

findings of fact recorded by the High Court are perverse, being based

on irrelevant considerations and inadmissible material.

18. In view of the above, the appeals succeed and are allowed. The

judgment and order of the High Court dated 25.04.2003 is hereby set

aside. The judgment and order of the trial court dated 20.12.1980 in

Sessions Trial No.382 of 1980 is restored. A copy of the order be sent

to the Chief Judicial Magistrate, Saharanpur to ensure that the

respondents be apprehended and sent to jail for serving out the

unserved part of the sentence awarded by the trial court.

....................................J.

(Dr. B.S. CHAUHAN)

.....................................

J.

(SWATANTER KUMAR)

New Delhi,

June 13, 2011

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