State Of U.P vs Mohd. Iqram & Anr

2. The brief resume of the facts as emerging from the FIR and the evidence adduced by the parties is set forth:

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.

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:

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).

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.

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.

Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

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.