STATE OF U. P.versusMOHD .. IQRAM & ANR.

                   [2011] 6 S.C.R. 1017


                     STATE OF U. P.                         A
                            v.
                 MOHD .. IQRAM & ANR.
        (Criminal Appeal No. 1693-1694 of 2005)
                     JUNE 13, 2011
                                                            B
 [DR. B. S. CHAUHAN AND SWATANTER KUMAR, JJ.)

    Penal Code, 1860:

     s.302134 - Murder - Circumstantial evidence - Shrieks  c
of victim heard in the night by police party on general
patrolling - Three persons seen scaling down the wall near
the room of victim - Two of them (accused) apprehended -
Accused led the police and witnesses to the room of victim
where she was found lying unconscious - She died in hospital 0
- Accused totally strangers to the area - Medical evidence
that death could be caused by strangulation by hands -
Conviction by trial court - Acquittal by High Court - HELD:
Circumstantial evidence is so strong that it points
unmistakably to the guilt of accused and incapable of any E
other hypothesis - Accused were identified as the persons
scaling down the wall and apprehended upon immediate
chase - High Court erred in holding that the finding of
identification was doubtful - Findings recorded by High Court
are perverse being based on irrelevant considerations and
inadmissible material - Judgment of High Court set aside F
and that of trial court restored - Circumstantial evidence -
Constitution of India, 1950 - Article 136 - Appeal against
acquittal.

    Evidence:                                               G
    Burden of proof - HELD: Once presence of accused at
the scene of crime where they were apprehended is
established, onus stood shifted on the defence to have
                          1017                              H
    1018    SUPREME COURT REPORTS                 [2011) 6 S.C.R.

A brought forth suggestions for their presence there at the dead
    of night - They were under an obligation to rebut the burden
    discharged by prosecution - High Court erred in concluding
    that prosecution had failed to discharge its burden - Penal
    Code, 1860 - s.302134.
B
        Code of Criminal Procedure, 1973:
        s.313 - Affording of opportunity to accused to explain
  incriminating material against him - Conviction of two
  accused and acquittal of third one by trial court - High Court
C in the appeal filed by convicts making observations that
  greater possibility was that the acquitted accused committed
  the murder after he had forcible sexual intercourse with the
  victim, and acquitted both the accused - HELD: Court cannot
  place reliance on incriminating material against accused,
D unless it is put to him during his examination u/s 313 - This
  prohibition is mandatory in nature - Besides, the trial court
  did not frame any charge uls 376 - Observations in post-
  mortem report cannot be termed to be substantive piece of
  evidence when the doctor did not say anything about the same
E in his statement in court which only is the substantive piece
  of evidence in law - Evidence - Proving of contents of post- '
  mortem report.
        Appeal against Acquittal ,_ HELD: In exceptional cases
  where there are compelling circumstances, and the judgment
F under appeal is found to be perverse leading to miscarriage
  of justice, the appellate court should interfere with the order
  of acquittal - 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
G hypothesis than that of their guilt - Therefore, findings of fact
  recorded by the High Court are perverse, being based on
  irrelevant considerations and inadmissible material.
        JUDGMENT:
H       Observations by High Court against acquitted person -
      STATE OF U. P. v. MOHO. IQRAM & ANR.              1019


Trial court convicted two accused and acquitted the third one   A
- Convicts filed appeal - High Court acquitting the two
accused made observation that it was possible that the
accused acquitted by trial court committed the crime - HELD:
It was not permissible for the High Court to castigate the
person who had been acquitted by the trial court and whose      8
acquittal had not been challenged before it.

     Accused-respondents nos. 1 and 2 along with
another accused 'SK', were prosecuted for causing the
death of the wife of accused 'SK'. The prosecution case
was that 'SK' obtained a decree of divorce against his          C
wife 'R' who, as per the decree was permitted to reside
in a room with an enclosed open area belonging to 'SK'
and was granted maintenance of Rs.150/- per month. 'R'
had challenged the decree in an appeal. On 15.5.1980 at
about 9 p.m., when the Sub Inspector of Police (PW.6)           D
alongwith the Head Constable (PW.7) and two constables
was on general patrolling, they heard shrieks emanating
from the house of 'SK' and saw three persons scaling
down the wall of the 'Sahan' towards the west of the room
under occupation of 'R'. The two accused-respondents            E
nos. 1 and 2 were caught and the third one who
managed to escape was named by them as 'SK'. The
respondents led the police party to the room of 'R' where
she was found lying unconscious. Meanwhile 'PW.3', the.
brother of 'SK' also reached there and took 'R' to the          F
hospital. The respondents were taken to the Police
Station where an FIR was lodged. On receiving the
information of the death of 'R' the case was converted
into one uls 302 IPC. The trial court, after taking into
consideration the facts that the respondents-accused            G
were strangers to the area, the evidence neither
suggested rape nor theft and the death was possible in
the medical opinion to have been caused by
strangulation with hands, convicted the accused-
respondents u/s 302/34 IPC and sentenced them to                H
    1020   SUPREME COURT REPORTS             [2011] 6 S.C.R.

A imprisonment for life. On appeal by the respondents, the
  High Court acquitted them. The High Court, also, made
  observations that greater possibility was that it was
  accused 'SK' who strangulated 'R' to death after he had
  forcible sexual intercourse with her.
B      Allowing the appeals filed by the State, the Court

       HELD: 1. The observation by the High Court that the
  weapon used in the offence had not been recovered is
  totally unwarranted and uncalled for. More so, the nature
C of the injuries, as per the post mortem report and
  evidence of the doctor (PW-1 ), itself reveal that for        1




  causing such injuries, no weapon was required. [para
  11] [1032-B]                         .

       2.1. So far as the issue of rape of the deceased prior
0
  to her murder by accused 'SK', her ex-husband, is
  concerned, the trial court has recorded findings of fact
  on this aspect in the negative. Undoubtedly, the post-
  mortem report contains such observations, but the
  doctor (PW.1) has not made any such reference either in
E his examination-in-chief or cross-examination. Nor had
  this aspect ever been put to any of the three accused in
  their statements recorded u/s 313 Cr.P .C. It was not
  permissible for the High Court to make such observations
  about the post-mortem report. [para 12] [1032-C-F]
F
      2.2. Besides, 'SK' has been acquitted by the trial
  court. The State did not prefer any appeal against his
  acquittal. This Court is of the considered opinion that it
  was not permissible for the High Court to castigate 'SK'
G with such observations holding him guilty of committing
  rape and subsequently murdering his ex-wife 'R'.
  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,
H Such observations cannot be termed to be a substantive
      STATE OF U. P. v. MOHD. IQRAM & ANR.             1021


piece of evidence. The doctor (PW.1) did not even              A
whisper about the same in his statement made in the
court which is the only substantive piece of evidence in
law. The post-mortem report had been examined at the
time of framing of the charges. The trial court did not
frame any charge u/s 376 IPC or s. 376 read with s. 511        B
IPC. More so, no witness had ever mentioned anything
in this respect. Thus, such observations could not be
made by the High Court. [para 12] [1032-E-H; 1033-A-C]

    State of Bihar and Ors. v. Radha Krishna Singh & Ors.,     C
19S3 (2) SCR ·sos= AIR 19S3 SC 6S4; and Madan Mohan
Singh v. Rajni Kant AIR 2010 SC 2933; relied on

     3.1. The court cannot place reliance on incriminating
material against the accused, unless it is put to him
during his examination u/s 313 Cr.P.C. 'thus, the High         D
Court committed an error by taking into consideration the
inadmissible evidence for the purpose of deciding the
criminal appeals and holding the person as guilty who
already stood acquitted by the trial court. [para 12) [1032-
H; 1033-A-B]                                                   E

    3.2. Section 313 Cr.P.C. is based on the fundamental
principle of fairness. 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        F
opportunity to offer an explanation for the incriminatory
material appearing against him. Circumstances which
were not put to the accused in his examination u/s 313
Cr.P.C. cannot be used against him and have to be
excluded from consideration. [para 13] [1033-D-F]
                                                               G
    Sharad Birdhichand Sarda v. State of Maharashtra, 19S5
(1) SCR 88 = AIR 1984 SC 1622; State of Maharashtra v.
Sukhdeo Singh & Anr., 1992 (3) SCR 480 =AIR 1992 SC
2100; and Paramjeet Singh @ Pamma v. State of
                                                               H
   1022    SUPREME COURT REPORTS                [2011] 6 S.C.R.


A Uttarakhand, 2010 (11) SCR 1064 =AIR 2011 SC 200;
  relied on

       4.1. So far as the question of the source of light and
  identification of the accused is concerned, the
8 depositions of 'PW.3', 'PW.6', 'PW.7' and 'PW.8' reveal that
  there were 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 'PW.8'. In such a
C fact-situation, failure of electric supply does not become
  fatal. [para 15] [1034-D-E]

       4.2. 'PW.6' and 'PW.7' have identified the
  respondents being the persons who were scaling down
  the wall and had been apprehended upon an immediate
D chase. Therefore, the High Court erred in recording the
  finding that identification was doubtful. [para 15] [1034-
  F]

      5.1. Once the prosecution had brought home the
E 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
F 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. Thus, the
  judgment proceeds on a surmise that renders it
G unsustainable. [para 15) [1034-G-H; 1035-A-B]

       5.2. 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
H conclusions of the courts below are contrary to the
      STATE OF U. P. v. MOHD. IQRAM & ANR.             1023


evidence on record or its entire approach in dealing with A
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 8
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 the C
interference. [1035-C-E]

     Babu v. State of Kera/a, 2010 (9) SCR 1039 =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., 2010 (15) SCR 1 =AIR 2011 SC 280;     D
S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC 83;
V.S. Achuthanandan v. R. Ba/akrishna Pillai & Ors., (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 Kamataka, (2011) 4 SCC 779 -          E
referred to.

     5.3. 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       F
hypothesis than that of their guilt. Therefore, findings of
fact recorded by the High Court are perverse, being
based on irrelevant considerations and inadmissible
material. The judgment of the High Court is set aside, and
that of the trial court is restored. [para 17-18] [1035-H;     G
1036-A-C]
                    Case Law Reference:
    1985 (1) SCR 88            relied on           para 13
                                                               H
    1024   SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A       1992 (3) SCR 480            relied on           para 13

        2010 (11)SCR1064            relied on           para 13

        1983 (2) SCR 808            relied on           para 14

        AIR 2010 SC 2933            relied on           para 14
B
        2010 (9) SCR 1039           referred to         para 16

        2010 (15) SCR 1             relied on            para 16

        (201 O) 13 sec 657          referred to          para 16
c       (2011) 2 sec 83             referred to          para 16

        (2011) 3 sec 311            referred to          para 16

        (2011) 4 sec 786            referred to          para 16
D       (2011) 2 sec 150            referred to          para 16
        (2011) 4 sec 119            referred to          para 16

        CRIMINAL APPELALTE JURISDICTION : Criminal Appeal
    No. 1693-1694 of 2005.
E
        From the Judgment & Order dated 25.4.2003 of the High
    Court of Judicature at Allahabad in Criminal Appeal No. 14 and
    60 of 1981.

      R.K. Gupta, Rajiv Dubey (for Kamlendra Mishra) for the
F Appellant.

        K. Sarada Devi for the Respondents.

        The Judgment of the Court was delivered by
G        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
H
      STATE OF U. P. v. MOHD. IQRAM & ANR.                1025
             [DR. B.S. CHAUHAN, J.]

20.12.1980 in Session Trial No. 382 of 1980 passed by the         A
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.
                                                                  B
    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    C
·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      D
 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.          E

     (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     F
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 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.                         G

    (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)        H
      1026     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


. A 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
  B 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,
  c 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, at about 11.00
    P.M. from Mahesh Kumar (PW.3), the case was converted
    under Section 302 IPC and investigation ensued.
  0
         (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
  E 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.
  F          (2)   Abrasion 4 x % cm on left cheek.

             (3)   Abrasion 1 % cm x % cm on left side neck, 2 cm
                   below angle of mandible.

  G          (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.
  H
      STATE OF U. P. v. MOHD. IQRAM & ANR.                  1027
             [DR. B.S. CHAUHAN, J.]

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

      (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.                                                B

      (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                c
Singh (PW.8) besides Babu Ram and 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. lqram also examined one Bhugan (DW.1), the Pradhan
of village Taharpur in his defence.                                 o
      (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            E
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 60of1981 before the Allahabad High court         F
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 G
appreciating the facts on record. The trial court had convicted ·
the respondents on circumstantial evidence making clear cut
observations that the chain of circumstances was complete; the
said respondents had been arrested from the place of
                                                                  H
    1028    SUPREME COURT REPORTS                 [2011) 6 S.C.R.


A 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
s 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
c 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
D 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 res~·ondents, thus, appeals
  are liable to be dismissed.
E
       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
F 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.
G
      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
H room of Rashmi, deceased. He flashed the light of torch
      STATE OF U. P. v. MOHD. IQRAM & ANR.               1029
             [DR. B.S. CHAUHAN, J.]

towards the same and found that 2-3 persons were running         A ·
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     B
her lying on the cot. Mukesh Kumar (PW.3) took her to the
hospital 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            c
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
                                                                 0
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           E
(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,         F
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 caused by strangulation and use of force.                     G

    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
                                                                 H
    1030    SUPREME COURT REPORTS                 [2011] 6 S.C.R.

A 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:
B              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
c              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.
D              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 nut suggest that there
E              was rape or anything of the kind attempted on Smt.
               Rashmi. Nor did the investigation reveal any case
               of theft.

               The purse of the decea~ed was found intact in the
               room besides the sum of Rs.107/- and odd. None
F              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.

G              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
H acquitted the respondents on the basis of the following findings:
   STATE OF U. P. v. MOHD. IQRAM & ANR.                   1031
          [DR. S.S. CHAUHAN, J.]

(I) The simple fact of their running in the lane at that moment    A
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.
                                                                   B
 (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       C
 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        D
        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       E
        forcible sexual intercourse with her exhibiting
        sadistic tendency. He did her to death this way,
        removing the thorn f~om his way for all times to
        come. After committing the crime, he managed the
        vanishing trick from the scene. The said feature is        F
        that the case was· given a different profile relating
        to him, not coming up to the standard required to
        find him guilty."

· (Ill) There was no electric supply at the relevant time. Thus,
  identification of the accused while scaling down the wall        G
  becomes doubtful.
· (IV) The weapon used in the offence had not been
  recovered.
                                                                   H
    1032    SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A        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 recoveri~g any weapon as mentioned by the High Court, is
8
  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.

C       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
D 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 under
  Section 313 of Code of Criminal Procedure, 1973 (hereinafter
  called 'Cr.P.C.'). We fail to understand as under what
E 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
F 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 ,
G 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
H
       STATE OF U. P. v. MOHD. IQRAM & ANR.                 1033
              [DR. B.S. CHAUHAN, J.]

it is put to him during his examination under Section 313            A
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 framing of the charges.      B
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 obsel'Vations
could be made by the High Court.                                     c
      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       D
of fairness. The attention ofthe 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       E
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               F
examination under Section 313 Cr.P.C. cannot be used
against him and have to be excluded from consideration. (Vide:
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                G
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        H
held as under :-
    1034    SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A       "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. .... ."
B
       (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
C 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
0 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 minimum three torches
  which had been flashed simultaneously on the persons who
E 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
F   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.

G      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
H therefore, they were under an obligation to rebut this burden
      STATE OF U. P. v. MOHO. IQRAM & ANR.                   1035
             [DR. !3.S. CHAUHAN, J.]

discharged by the prosecution, and having failed to do so, the        A
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. Thus, the
judgment proceeds on a surmise that renders it unsustainable.
                                                                      B
    The trial court did not find evidence of Bhugan (OW.1 ),
examined by Mohd. lqram, 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      C
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       D
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         E
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 Kera/a, (2010 (9) SCC 189; Dr. F
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., (2011) 3 SCC 317; State of
M.P. v. Ramesh & Anr., (2011) 4 SCC 786; Abrar v. State of G
U.P., (2011) 2 SCC 750; and Rukia Begum & Ors. v. State of
Kamataka, (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    H
    1036    SUPREME COURT REPORTS                 (2011] 6 S.C.R.


A 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
8
  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
C apprehended and sent to jail for serving out the unserved part
  of the sentence awarded by the trial court.

    R.P.                                        Appeals allowed.