REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1693-1694 OF 2005

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  

2

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,  

3

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 ½ cm x 1 ½  cm x ¼  cm on left eyelid  

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

temple region.  

(2) Abrasion 4 x ½ cm on left cheek.

(3) Abrasion 1 ½  cm x ¾ cm on left side neck, 2 cm below angle  

of mandible.  

(4) Abrasion ½ cm x ½ cm with contusion 1 ½ cm x 1 cm on the  

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

(5) Abrasion 1 ½ 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  

4

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  

5

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  

7

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  

8

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:

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

the city.

• No suggestion came to be made from their side as to what could  

have brought them to the spot at the moment.  

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

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

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

the  western  Sahan  and  then  to  the  apartment  occupied  by  the  

deceased.

• 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.

• 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.

9

• 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.”

10

(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  

11

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  

12

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  

14

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.,  

16

(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

17

18