HARI OM @ HERO versus STATE OF U.P.

HARI OM @ HERO

STATE OF U.P.

(Criminal Appeal No. 1256 of 2017)

JANUARY 05, 2021

[UDAY UMESH LALIT, INDU MALHOTRA ANDKRISHNA MURARI, JJ.]

Penal Code, 1860: ss.396, 412 – Six accused persons triedfor committing offences u/ss.396 and 412 IPC, s.3(2)(v) of theScheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 and s.25 of Arms Act – Trial court convicted all the accusedpersons for offence u/s 396 IPC and awarded life imprisonment tofive accused persons while awarding death sentence to Appellant-Hari Om – High Court affirmed death sentence of appellant-HariOm, life imprisonment of Appellant-Sanjay and Saurabh andacquitted other three accused persons – On appeal, held:Corroboration of the testimony of child witness is not rule but ameasure of caution and prudence – Testimony of child witness cannotbe accepted wherein there are glaring inconsistencies on recordwhich cannot be discarded, hence Appellant-Hari Om cannot beconvicted on such testimony – Apart from the material that samplefingerprints matched with those lifted from the house of the deceased,nothing was brought on record to suggest involvement of appellant-Sanjay and Saurabh – Order of conviction and sentence set aside.

Allowing the appeals, the Court

HELD: 1. The caution expressed by this Court inSuryanarayana vs. State of Karnataka that “corroboration of thetestimony of child witness is not rule but measure of cautionand prudence” is well-accepted principle. [Para 22][75-B]

2. The points on which the testimony of PW5 (a childwitness) gets corroborated by other pieces of material or evidenceon record are - (i)according to him, call was received on mobileof his mother, whereafter she opened the door and let the accusedin. The mobile of his mother bearing number [REDACTED]

Adefinitely received call at about 9.27 p.m. from mobile bearingnumber [REDACTED]. The call lasted for 20 seconds. However,there is nothing on record that the concerned mobile was that ofaccused Hari Om, or any of the accused. The record does notthrow any light, nor any efforts were made by the investigatingmachinery to trace the name of the person holding this mobileBphone number. However, there is some corroboration availablefrom the testimony of PW2 that on 28.10.2008 he had found HariOm standing near vehicle in the vicinity of the house of thedeceased; and upon being asked, accused Hari Om had repliedthat he was calling the deceased-victim. However, according toCPW2, that was at about 11.00 p.m. and not at or about 9.27 p.m.(ii) After being admitted into the house, tea and water was offeredto accused Hari Om and his associates. There were glasses whichwere found in the kitchen which fact certainly corroborates theversion given by PW5. (iii) It was stated that his mother wasoverpowered by two of the accomplices and her throat was slit byDaccused Hari Om. Thereafter, his three siblings were throttledto death, and an attempt was also made to throttle PW5. Themanner in which his mother and siblings were done to death iscorroborated by the medical evidence on record. However, if themother was being overpowered, there were no signs of struggleEand none of her bangles was broken. Further, if her throat wasslit and her left side blood vessels of the neck and trachea werecut, the blood would have instantaneously gushed out. But, therewere no blood spots anywhere else except below the cot wherethe body of deceased-victim was found lying in supine condition.One more striking feature of the matter is that there was noFmedical evidence either in the form of any documents, picturesor even statement of any medical professional that PW5 wasgiven medical attention as result of attempts of throttling. (iv)The location of dead bodies, as mentioned by him, is undoubtedlycorroborated by the site map, inquest panchanama and otherGmaterial. [Para 23][78-D-H; 79-A-E]3. There are certain inconsistencies or infirmities whichare evident from the record - (i) According to PW5, in the morningof 29.10.2008, the first person to see him was PW4, who tookhim to the house of his doctor uncle. However, according to hisHstatement recorded during investigation, he was taken to the

house of his uncle by the neighbours. (ii) according to his courtstatement, after reaching the house of said uncle, he had narratedthe entire incident to his other uncle PW1 and said uncle andtold them that Hari Om and his associates had committed themurders and also told them that he had witnessed the incident.However, the FIR lodged by PW1 spoke otherwise. Accordingto the reporting, the accused were unknown persons. Thereporting also did not disclose that PW5 had survived, despitebeing attempted to be murdered, and that he had witnessed theincident. As matter of fact the FIR did not make any referenceto PW5. (iii) according to PW5, he had narrated the entire incidentto PW4 and darogaji. On this score also, the record spokeotherwise, according to which, till 29.10.2008 the names of HariOm and his associates had not surfaced as suspects at all. Theinitial registration of crime was against unknown persons.(iv)There are other inconsistencies and omissions with regardto the manner in which his siblings were done to death. [Para23][79-F-H; 80-A-C]

4. As against statement of PW5 recorded duringinvestigation, certain other features are available from the recordwhich must be noted-(i) if PW5 was attempted to be murderedand as disclosed by PW4 he had seen ligature mark on theneck of PW5 , there was nothing on record supporting this fact.(ii) Parcha No.2 which was part of papers pertaining toinvestigation, did make reference to the statement of PW5recorded during investigation. However, as stated by PW10, thesaid Parcha was not in his handwriting, though, he was inchargeof investigation. He could not give any answer as to who hadwritten that Parcha. (iii) if according to the Prosecution, PW4was the first person to reach the place of occurrence, his statementwas recorded 26 days after the incident. The response given bythe concerned Investigating Officer shows that no attempts weremade to trace said PW4. (iv) The versions given by PW1 andPW4 in court did not, in any way, suggest that the names ofsuspects were narrated to them by PW5, or that he had told themabout the entire incident. As matter of fact, PW1 went to theextent of asserting that it was through his (PW5) said uncle thathe came to know about the incident. (v) Thus, the version givenby PW5 that he had narrated the entire incident to PW1, PW4

Aand darogaji was not supported by any of them. Moreover, theother person (PW5’s said uncle) to whom similar narration wasgiven by PW5, was not even examined by the prosecution. (vi)The charge-sheet did indicate PW5’s said uncle to be one of therelevant witnesses, and yet he was not examined. On the otherhand, the charge-sheet did not even speak of PW5 to be relevantBand material witness. Having culled out the essential featuresemerging from the record, it is difficult to place reliance uponthe testimony of PW5 and the said version cannot be made thebasis of conviction of Hari Om. Hence it is not safe to rely on theversion given by the child witness in the instant case, who wasCabout five years of age when the incident had occurred. [Paras23, 24, 26][80-D-H; 81-A-D; 82-D]

Digamber Vaishnav and Another v. State of Chhattisgarh(2019) 4 SCC 522 : [2019] 2 SCR 844; Radhey Shyamv. State of Rajasthan (2014) 5 SCC 389 : [2014] 5DSCR 242 – relied on

5. Insofar as accused Sanjay and Saurabh are concerned,apart from the material that their sample fingerprints matchedwith those lifted from the house of the deceased, nothing wasbrought on record to suggest or suspect the involvement of saidEtwo accused. They were acquitted of the charges under Section412 of IPC and under the Arms Act. Whether their liability in theinstant case can be fastened with the help of the fingerprintexpert’s report is the question. According to the record, ExhibitKa 7 was the Panchnama testifying the lifting of the fingerprintsfrom the house of the deceased by Constable. If the fingerprintsFwere picked from the glasses there is nothing to indicate whatmethod was applied to lift the fingerprints from the glassesallegedly used by the accused when they were offered water. Whatthe record indicates is that some photographs were sent to theoffice of the Director, Fingerprint Bureau, Lucknow and nothingGmore. It does not show the procedure adopted for taking suchphotographs, and whether such method is trusted and testedone. The concerned person was not examined, who could havethrown light on these issues. The record also does not showwhether those glasses by themselves were made available forappropriate analysis. There is, thus, no clarity in the processH

adopted by the investigating machinery. In the premises, theappeals preferred by accused Hari Om, Sanjay and Saurabh isaccepted. While setting aside the orders of conviction andsentence recorded against them, they are acquitted of all thecharges levelled against them. [Paras 29, 30, 37][83-G-H; 84-A-C; 88-C]

Musheer Khan alias Badshah Khan and another v. Stateof Madhya Pradesh (2010) 2 SCC 748 : [2010] 2SCR 119; Ram Shankar Singh and Others v. State ofUttar Pradesh AIR (1956) SC 441; Saktu and Anotherv. State of Uttar Pradesh (1973) 1 SCC 202 : [1973] 1 SCC 202; Suryanarayana v. State of Karnataka (2001)9 SCC 129 : [2001] 1 SCR 1; State of Uttar Pradesh v.Krishna Master and Others (2010) 12 SCC 324 : [2010]9 SCR 563; Manmeet Singh alias Goldie v. State ofPunjab (2015) 7 SCC 167; Prakash v. State ofKarnataka (2014) 12 SCC 133 : [2014] 5 SCR 242;Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 –referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1256 of 2017.

From the Judgment and Order dated 03.03.2017 of the High Courtof Judicature at Allahabad in Capital Appeal No. 3086 of 2015 withReference No. 8 of 2015.

AWith

Criminal Appeal Nos. 3, 4 of 2021

Ms. Aishwarya Bhati, Sr. Adv. (AAG), B.H. Marlapalle, Sr. Adv.,Tara Chauhan, Krishan Kumar, Shankar Divate, Ajit Wagh, Ms. Prabhleen

Kaur, Vishnu Shankar Jain, Ms. Dorjasvi Goswami, A.P. Mayee,BA. Rajarajan, P.I. Jose, Harikumar V., Ravi Sagar, Jayant K. Mehta,Sajal Jain, Sibo Sankar Mishra, Sahil Tagotra, Advs. for the appearingparties.

The Judgment of the Court was delivered by

CUDAY UMESH LALIT, J.

1. In Sessions Trial No.234 of 2008, six accused persons, namely,Sanjay @ Sonu, Rijwan, Haseen Khan, Hari Om @ Hero, Saurabh @Sanju, Rafique @ Bhaiye @ Fareed were tried for having committedoffences punishable under Sections 396, 412 of IPC[1] and under SectionD3(2)(v) of the SC/ST[2] Act. These six accused were also tried by theTrial Court[3] for offences under Section 25 of the Arms Act, 1959 inSessions Trial Nos.235 of 2008, 239 of 2008, 237 of 2008, 238 of 2008,236 of 2008 and 504 of 2011 respectively. By its common judgment insaid seven trials, the Trial Court recorded as under: -

“Convict Hariom @ Hero is awarded death sentence for theEoffence u/S 396 IPC. He shall be hanged till death. This orderrelated to death sentence shall be in accordance with theconfirmation of the Hon’ble High Court u/S 366 Cr.P.C.

Accused Hariom @ Hero is acquitted from Section 412 IPC andSection 3(2) 5 of Scheduled Castes and Scheduled TribesF(Prevention of Atrocities) Act and from Section 25 Arms act inCrime No.371/2008.

Convicting accused persons Rijwan, Haseen, Bhaiye @ Fareed@ Rafique, Sanjay @ Sonu, Saurab @ Sanju u/S 396 IPC, theyare awarded life imprisonment and Rs.25,000/- fine to each ofGthe accused.

1 Indian Penal Code

2 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

3 Additional Sessions Judge-2, Firozabad

Accused persons Rijwan, Haseen, Bhaiye @ Fareed @ Rafique,Sanjay @ Sonu, Saurabh @ Sanju are discharged u/S 412 IPCand Section 3(2) 5 of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act and accused Rijwan is acquittedfrom the offence u/S 25 Arms Act in Crime No.369/08, accusedHaseen is acquitted from the offence under Section 25 Arms Actin Crime No.370/08, accused Bhaiye @ Fareed is acquitted fromthe offence under Section 25 Arms Act in Crime No.381/08,accused Sanjay @ Sonu is acquitted from the offence underSection 25 Arms Act in Crime No. 368/08 and accused Saurabh@ Sanju is acquitted from the offence under Section 25 ArmsAct in Crime No.372/08.

75% of the amount of fine shall be given to the sole survivingmember of the victim family i.e. Ujjawal. In case of default ofpayment of fine, accused persons shall serve 6 months of additionalimprisonment.”

2. Death sentence having been awarded to accused Hari Om, thematter stood referred to the High Court[4] by way Reference No.8 of2015. All the aforementioned six accused also filed Criminal AppealNos.3316 of 2015, 3265 of 2015, 3317 of 2015, 3836 of 2015, CapitalAppeal No.3086 of 2015 and Criminal Appeal No.3512 of 2015respectively challenging their convictions and sentences.

3. The High Court by its common judgment and order dated03.03.2017 passed in the aforestated Reference and Appeals: -

(a) affirmed the conviction and sentence of death imposed uponaccused Hari Om and dismissed his Appeal.

(b) affirmed the conviction and sentence awarded to accusedSanjay @ Sonu and Saurabh @ Sanju and dismissed theirAppeals.

(c) accepted the Appeals of accused Haseen Khan, Rafique @Bhaiye and Rijwan and acquitted them of the charges leveledagainst them.

4. Criminal Appeal No.1256 of 2017 is preferred by Hari Omwhile Special Leave Petition (Criminal) Nos.9087 and 9088 of 2017 are

4 The High Court of Judicature at Allahabad

Apreferred by Sanjay @ Sonu and Saurabh @ Sanju respectivelychallenging the judgment and order dated 03.03.2017 passed by the HighCourt. No appeal has been preferred by the State challenging acquittalof Rijwan, Haseen Khan, Rafique @ Bhaiye.

5. Leave granted in aforesaid Special Leave Petitions.B

6. The initial reporting in the instant matter was made by KotwalSingh (later examined as PW1) at about 7.40 am on 28.10.2008 as under:-

“It is submitted that family of my elder brother Shaheed late Sh.Rajpal Singh had constructed house in Nagla Mirja Bada andwere living there. Today, in the night of 27 & 28/10 some unknownCpersons have committed murder of my sister-in-law Smt. NirdoshDevi age 40 years, niece Ku. Poonam age 18 years, nephew Ashishage 12 years and nephew Anshul age 10 years in which neck ofmy sister-in-law is cut and murder of all the three has beencommitted by pressing neck/throttling. The incident has come toDknowledge in the morning today when milkman came. All thefour dead-bodies are lying separately in both two rooms and afterbreaking box, almirah, suitcase etc. they have taken away all thehouse-hold articles, jewellery and cash. List of articles looted willbe submitted subsequently. Report be registered and necessaryaction be taken.”ECrime No.367 of 2008 under Section 394, 302 IPC was, therefore,registered with P.S. Ramgarh, Firozabad against unknown persons.

7. Thereafter, following steps were taken on 28.10.2008:-

A. The investigation into the crime was taken up by PW10 S.O.FGautam, who prepared Site Map (Ext.Ka-20). On the same dayPW9 Sub-Inspector Ram Prasad conducted inquest on the deadbodies of Smt. Nirdosh Devi, Kumari Poonam, Masters Ashishand Anshul and sent them for autopsy. He had found these fourdead bodies lying in supine condition.

B. In the presence of two witnesses, namely, PW3 Harpal Singhand one Mukesh Kumar:-

(i) Blood-stained earth from the floor below the cot wherethe body of Smt. Nirdosh Devi was lying and the portion ofblood stained “baan” (rope) of the cot were taken (vide Ext.HKa-6).

(ii) Finger prints from certain articles like utensils, glassesfrom the house of the deceased were taken by ConstableDharmender Singh, DCRB (vide Ext. Ka-7).

C. Statements of Ompal Singh (later examined as PW2), RamPrakash, Raju (owner of the house where accused Hari Om usedto live) and Manoj Kumari (wife of Hari Om) were also recorded,which disclosed possible involvement of Hari Om and hisassociates.

D. The Post-Mortem on the dead bodies of Smt. Nirdosh Deviand Kumari Poonam was jointly conducted by PW7 Dr. R.A.Sharma and Dr. Ajay Agarwal, while the Post Mortem on thedead bodies of Masters Anshul and Ashish was conducted byPW7 Dr. R. A. Sharma. The injuries on the dead bodies weredescribed by the High Court as under:-

“a. Smt. Nirdosh Devi: aged 40 years

“i. Incised wound 11 cm x 4 cm on lower part front of neck, moreon left side, left side blood vessels cut trachea cut, right and leftside muscle cut. Wound horizontal, marquis clean cut.

ii. Abraded contusion over right side of nose 1 cm x 0.1 cm.

On internal examination, trachea was found cut. Semidigested food was found in stomach. Brain was noted pale. Causeof death was due to shock and hemorrhage as result of antemortem injuries. Vaginal smear made. Slide prepared and sent toPathologist SNMH Firozabad through S.O., P.S. Ramgarh.”

b. Kumari Poonam: aged 18 years

“i. Ligature mark 13 cm x 1.5 cm oblique, lower part of neck inmiddle part and extending upto right side upper part of neck. Ondissection underlying muscles contused.

On internal examination membranes and brain were foundcongested, pleaura, Jarynx, trachea were found congested. Hyoidbone was found fractured. Both lungs congested. Semi digestedfood was found in stomach. Cause of death was due to Asphyxiaas result of strangulation. Vaginal smear made. Slide preparedand sent to Pathologist SNMH Firozabad through S.O., P.S.Ramgarh.”

Ac. Master Ashish: aged 12 years

“i. Multiple contusion on right side, front of neck in an area 6 cmx 3 cm, Average size 1.5 cm x 03. Cm

ii. Contusion 3 cm x 1.5 cm on left side front of neck, middle part.

iii. Multiple contusion left side of face 6 cm x 3 cm, average size1 cm x 0.3 cm.

Cricoid cartilage and Thyroid cartilage found fractured.Death was due to Asphyxia as result of throttling.”

d. Master Anshul: aged 10 years

i. Contusion brown dry over front of neck 12 cm x 5 cm over leftside of neck, 2 cm over right side of neck.

ii. Contusion 1 cm x 2 cm below jaw left side.

iii. Contusion 1.5 cm x 2 cm lower part of neck left side.

On internal examination, cricoid cartilage, thyroid cartilage,Hyoid bone were found fractured. Pleura, trachea were foundcongested. Membranes, brain congested. Semi digested foodpresent in stomach. Spleen and kidneys were noted congested.Cause of death was due to Asphyxia as result of throttling.”

8. Steps taken on the next day i.e. 29.10.2008, were:-

A) Pursuant to information received from the complainant,PW10 S.O. G.P. Gautam along with police party and thecomplainant went to “Sailai Choraha” and at about 11 a.m.apprehended five out of aforesaid six persons while one ofthem, namely, Rafiq @ Bhaiye ran away. These persons werefound to be travelling in Red Tavera vehicle bearingNo.UP83J/7948. From the personal search of these five personsfollowing articles were recovered:-

(a) from Sanjay @ Sonu : country made pistol and two livecartridges

(b) from Rijwan : one country made pistol of 12 Bore and4 live country made cartridges

(c) from Haseen Khan: one country made pistol of 3.15Bore with 3 live cartridges

(d) from Hari Om @ Hero: Double Barrel Pauna rifle andone live cartridge, one Nokia Mobile set of black colour(which was stated to be belonging to the deceased Smt.Nirdosh Devi)

(e) from Saurabh @ Sanju: chhuri (knife).

From the collective possession of these five persons,following articles[5] were also recovered:

“one polythene bag containing one identity card of Rajpaland Pass-Book of Nirdosh Devi & one Pass-Book of jointaccount of Manju Devi & Sanjay, one Pass Book of jointaccount of Nirdosh Devi and Rajpal of Indian State Bank;two bangles of yellow metal (gold) from red colored Shaneelpurse; ring of yellow metal (gold) were recovered withcash of Rs.5,000/-; 02 ladies wrist watches from yellowcolored Shaneel purse, one silver Kardhani (of 5 Lar) ofwhite metal weighing about 250 gms from red Shaneelpurse, one ½ silver Kardhani from Badami colouredShaneel purse and one yellow metal of golden colour wererecovered from red coloured Shaneel purse.”

B. Crime Nos.368 to 372 of 2008 for the offences punishableunder Section 25 of the Arms Act, 1959 were thereafter registeredagainst Sanjay @ Sonu, Rijwan, Hari Om @ Hero, Haseen Khanand Saurabh @ Sanju respectively.

C. Apart from the arrest of the aforesaid five persons, thestatement of Ujjwal, five years old son of Smt. Nirdosh Devi (thelone survivor) was recorded. According to the record, his statementcould not be recorded on the previous day as Ujjwal was undershock and unable to make any statement.

D. chhuri/knife was recovered at the pointing of accused HariOm in the presence of Panchas.

E. The registration of Crime No.367 of 2008 was altered to thatunder Sections 396 and 412 IPC and in respect of offencespunishable under the SC/ST Act.

5 As stated by PW10 S.O. Gautam in his deposition

A9. On 30.10.2008 the investigation was taken over by PW11Dr. B.K. Singh, Circle Officer, Firozabad during the course of which, herecorded statements of various persons. On 24.11.2008, he recordedthe statements of PW1 Kotwal Singh, PW4 Shankar Lal (milkman),Dr. Satya Pal (elder brother of PW1 Kotwal Singh) and constablesDharmendra, Ramesh Chandra, Malkhan and Mawadh Singh.B

10. The sixth person Rafique @ Bhaiye was apprehended on05.11.2008.

11. On 03.12.2008, charge-sheet dated 24.11.2008 was filed byPW11 Dr. B. K. Singh. The basic information about the crime was statedCas under:-

“Statement of Complainant of case, confirmed seizure-memo,statement of Shankar Lal, milkman, confirmed place of incident,statement of family doctor of deceased, Dr. Satyapal, confirmedstatement of constable Shankar, statement of ConstableDDharmendra Singh, confirmed finger-prints report, statement ofthe Constable who got conducted PM, confirmed PM, investigationagainst accused persons viz. Sanjay @ Sonu Sharma, Rizwan,Hassen Khan, Hariom @ Hero, Saurav @ Sanju, Bhaiye @Fareed Khan.

24/11/2008

Charge-sheet u/S 396, 412 IPC & 3(2) 5 SC/ST Act

-----------F

24/11/08

Sent/proceeding of fingerprints match is remaining to be done forexamination of case property.”

GIt is relevant to note that in the charge-sheet there was noreference to the statement dated 29.10.2008 of Ujjwal, the youngestchild of Smt. Nirdosh Devi nor did it say or suggest that he was relevantwitness.

12. On 04.12.2008 PW11 Dr. B. K. Singh sent the finger printslifted from various articles, from inside the house of the deceased asH

well as sample finger prints of Sanjay @ Sonu, Rijwan, Haseen Khan,Hari Om @ Hero and Saurabh @ Sanju for analysis.

13. By its report dated 18.05.2009 the Office of the Director,Finger Print Bureau, Lucknow intimated to the Trial Court, the result offinger prints examination. The relevant portion of the report was as under:

“DISPUTED FINGER PRINTS: finger prints lifted through liftingtape were affixed on four papers. Finger prints have been markedas No.8898 to 8922.

Sample of Finger prints: Sample finger prints of Sh. Sanju @Saurabh, Bhaiye @ Farid, Rijwan, Hariom @ Hero, Sanju @ SonuSharma and Haseen Khan taken on slips/parchi dated 4.12.08.All the right & left 10 fingers print have been marked as No.8923to 8982 respectively.

Sd/- (Illegible)

2. Examination of all the records was conducted in this office,result with reasons are as under :-

D.F.I./P. No.8909 is similar/identical to sample F.I. No.8923. Itsformation and line pattern are same. In enlarged pictures, identicallining pattern have been shown in red lines. Details of which arementioned in Matching list.

Para 2: D.F.P. impression No.8914 is similar/identical to SampleF.P. No.8963. Its formation and lining are same. In the enlargedpicture, similar/identical lining pattern have been shown in redlines. Details of which are mentioned in Matching list.

Para 3 : D.F.P. impression No.8917 is similar/identical to SampleF.P. No.8964. its formation and lining pattern are same. Identicallining pattern have been shown in red lines (illegible) in enlargedpictures. Details of which are mentioned in Matching list.

Para 4 : Lining characteristic are not sufficient in disputed fingerprints No.8904, 8905, 8906, 8907, 8908, 8916, 8919, & 8920 forgiving definite opinion.

Para 5: Disputed Finger Prints No.8898 to 8903, 8910 to 8913,8915, 8918, 8921, 8922 are not clear for matching.”

It must be stated here that the disputed finger print No.8909 liftedfrom glass in the kitchen of the house matched with the thumbimpression of right hand, being sample No.8923, of Sanju @ Saurabhwhile the disputed finger print impressions 8914 and 8917 from anotherglass matched with the sample impressions of the thumb and index fingerof right hand being sample Nos.8963 and 8964 of Sanjay @ Sonu.

14. Appropriate charges were framed on 23.11.2009 against allsix accused. The charges framed in Sessions Trial No.234 of 2008 wereas under:-

“I, Lukmanul Haque, Special Sessions Judge, Court no.4, FirozabadCcharge you accused persons namely Sanjay alias Sonu, Rijwan,Haseen Khan, Hari Om alias Hero, Saurabh alias Sanju, Fareedalias Rafique with following charges.”

First:- This that on 28.10.2008 at the night, time unknown,place Nagla Mirza Bada at the house of deceased under RamgarhDpolice station area, District Firozabad, you murdered thecomplainant’s sister-in-law, nephews, niece and decamped withthe jewelry, cash etc which were kept at the house. This way youhave committed an offence which is punishable u/s 396 of theIPC and is in cognizance of this Court.

Second:- This that the articles which were lotted on theEabove date, time and place. Cash jewelry, watch etc wererecovered from the possession of you people near the Sailai culvertat 11:00 on 29-10-08 under Ramgarh Police Station, DistrictFirozabad, even after knowing that these items were looted youhad kept these with you. This way, you committed an offenceFwhich is punishable offence u/s 412 of the IPC and is incognizance of this Court.

Third:- This that on the above date, time and place ofoccurrence, you committed heinous crimes like loot and murderon people of Scheduled Caste. This way, you committed such anGoffence which is punishable u/s 3(2)5 of the S.C.S.T. Act and isin cognizance of this Court.

I, hereby direct you be tried by this Court under the abovecharges.”

They were tried by the Trial Court in Sessions Trial No.234 ofH2008 and Nos.235-239 of 2008 and No.504 of 2011.

15. The Prosecution examined fifteen witnesses and producedthe relevant material in support of its case, while two witnesses wereexamined on behalf of the Defence.

16. The relevant portions from the testimony of some of theProsecution witnesses were as under:-

A. PW1 Kotwal Singh, brother in law of Smt. Nirdosh Devi, statedin his examination in chief:-

“My brother had become martyr in year 2005. His familyconsisted of wife Smt. Nirdosh Devi, daughter Ku. Poonamand sons viz. Ashish, Anshul and Ujjawal.

In the night of 27/28.10.2008, murder of my sister-in-law Nirdosh Devi, niece Poonam and nephews Ashish andAnshul was committed by miscreants in their house only. Sister-in-law was murdered by slitting throat, while others weremurdered by throttling (strangulating), younger nephew Ujjwalwas throttled to death but survived.

This incident came into knowledge when milkman arrived.I had also gone to the site of incident to see where all fourdead-bodies were lying separately in different rooms. House-hold articles, box, Almirah and suitcase etc. were lying brokenand its articles were scattered. Miscreants had looted cashand jewellery. The articles looted were in my knowledge andI had seen. I had submitted written report of this incident toPolice Station.”

In his cross examination, the witness stated:-

“I came to know about the incident through my elder brother.My elder brother did not come to inform about the incident.Someone from the colony had given information. The saidperson had come to me in the morning at 6.45 am. This personhad come to the house of my brother on foot; I do not knowname of the person whom my brother Satyapal had sent topass information. There were 4-6 more persons with the saidperson whose names I do no know. I reached the site of incidentby running with these persons only, all reached by running. Wehad reached the site of incident within 5-7 minute. When Ireached the site of incident, at that time main door of the house

was open. Only my elder brother Satyapal was there insidethe house, none else from the family. Family members fromNagau reached within an hour, they had been informed by elderbrother through phone.”

“I had gone to police station to give information on the day ofincident and thereafter, I did not go again to police station. Iwrote Exhibit Ka-1 by sitting on Kharanja outside the incident.I, after writing Exhibit 3, submitted in the evening at about 7O’clock. I had taken advice of elder brother Dr. Satyapal inwriting it”

“Till today I do not know name and residence of the milkmanthrough whom I received information. The fact of receivinginformation from my brother Dr. Satyapal, is not written inExhibit Ka-1. Milkman had informed my brother. My brotherSatyapal informed me.”

B. PW2 Ompal Singh who lived in the same neighbourhood statedin examination in chief:-

“…In the night of 27/28.10.2008 at about 11 P.M. andRamprakash were returning back from home from work.House of Mulayam Singh is near house of Nirdosh Devi. Nearto it, red colour four wheeler vehicle was parked. 4-5 peoplewere sitting inside it. Hari Om @ Hero, one of them, wasstanding near the vehicle and he was talking on phone. I askedHari Om, ‘brother why are you standing at this time’ whereuponHari Om replied that I am talking to Faujin Nirdosh Devi. Thenwe left for our home. I knew Hari Om @ Hero because hehad been tenant at the place of Nirdosh Devi. In the samenight, the incident had taken place. I had received informationin the morning. I became sure that Hari Om @ Hero and hisaccomplices committed murder of Nirdosh Kumari and herthree children and the miscreants committed loot.”

This witness also proved recovery memo Ext.Ka-5 and deposedthat on 29.10.2008 at about 05.00 p.m., accused Hari Om had taken outa chhuri/knife from the bricks lying near the southern wall of the houseHof one Sikia.

Nothing was suggested to the witness in his cross examinationthat Hari Om had not been the tenant of Smt. Nirdosh Devi. In his crossexamination conducted on 01.03.2011, the witness stated:-

“On 28.10.08, when police came on the spot then I was on thespot. Then, neither I had any conversation with police nor madeany attempt to talk to the police. I did not tell to the police aboutthe Tavera vehicle being parked on 28.10.08.”

But in his cross examination dated 10.03.2011, the witness stated:-

“On 1.3.11 I had given the statement that I did not have anyconversation with police and I did not make any attempt to talk tothe police. I had conversation with the police at police station andit did not take place on the spot.

I had been in police station from 28.10.08 to 29.10.08. Ihad seen all the accused persons in police station. I cannot saythe name of any other persons except Hari Om. Neither I hadseen any person talking on mobile near the vehicle at the spot on28.10.08 nor did I have any conversation with the person talkingon mobile.”

C. PW3 Harpal Singh, witness in respect of Exhibits Ka-6 andKa-7, proved those documents and stated:-

“Darogaji had collected the fingerprint on shelf, box, attachee,utensils and glasses of the kitchen form the spot in my presenceas specimen. On it, my signature and the signature of MukeshKumar were taken. One Diwanji was also present with Darogaji.Memo was prepared on the spot. This witness has recognisedsignature on Memo (Paper No.5A/2). On this, Exhibit Ka 7 wasmarked.”

D. PW4 Shankarlal, milkman stated in his examination in chief:-

“Family of late Fauzi Rajpal comprised of his wife, daughterand three sons. I knew everyone. The date was 28[th] in the year08. It was Deepawali festival. I had gone to the house of FauziRajpal Singh to deliver the milk at about 6:45 AM.

I made call at the entrance of their house. No one responded. Iknocked the door even then no one responded. I pushed doorwhereupon door opened. Then, (Ujjwal) small child of late Rajpal

Acame to me weeping from inside. Then I peeped inside the roomof the house and found wife and elder son of Fauzi Rajpal lyingdead on the cot. Blood was lying there. girl and boy werelying dead in the other room. On seeing them, I got perturbed. Itook Ujjwal in my arms and informed Dr. Satyapal who is brotherof Fauzi. Then I returned to the place of incident with him. ByBthen, crowd had gathered. Thereafter, I had gone to deliver themilk to some other place from my bicycle.”

The witness, in his cross examination, stated: -

“I did not have the meeting with Kotwal Singh on that day. Idid not have meeting, therefore, I did not give any informationto Kotwal Singh.

I took Ujjawal on my lap and went to Satya Pal. He hada ligature mark of marpeet on his neck. Neither I told this factDto CO nor he asked me. I’m telling this fact for the first time inthe court.

Satya Pal did not go to PS to give information in mypresence. I had given information about the incident to SatyaEPal. Satya Pal had returned to the spot with me. Even them, Idid not have any meeting with Kotwal Singh.

…I could not see the cloth of Faujin because she was insideFthe quilt (lihaaf). Ashish had worn chaukhane shirt and nicker.Ashish was lying dead on the cot. I did not see by touching.Blood was oozing out. Poonam was also inside the quilt. Herface was also visible. She was lying on the ground. Blood wasoozing out. Blood had not dried up. I had seen the body offauzin and her daughter. The blood was oozing out from theirGbodies. They had not dried.”

E. PW5 Ujjwal, the youngest child of Smt. Nirdosh Devi, was offive years of age when the incident had occurred and about eight yearsof age when he was examined in Court. In his examination-in-chief, thewitness stated:-

“It was Deepawali at the time of incident. The incident tookplace in the night. I was sleeping at my house. The phone ofmy mother rang on which my mother went to open the door.Thereafter, on opening the gate, Hari Om uncle and 5 otherpersons came inside the house. 5 uncle (persons) sat on thetakht and Hari Om uncle sat on the cot. At that time, I wasawake. Mother asked them for tea and water but these personsdid not take tea. My sister Poonam came with 6 glasses ofwater and offered them water. Hari Om uncle demanded thekey of almirah from my mother. I already knew Hari Ombecause he had been tenant at my house in the past.

My mother did not give the key when it was demandedby Hari Om. Then, Hari Om caught hold of the neck of mymother. 2 persons among the persons accompanying Hari Omheld the hands and legs of my mother and Hari Om uncle cutthe neck of my mother with iron knife.

One of the persons accompanying Hari Om caught theneck of my sister and killed my sister Poonam. One unclepressed the neck of my brother Ashish. Thereafter, one unclepressed the neck of my other brother Anshul. Then, Hari Omuncle and other 5 persons accompanying him i.e. total 6 personslooted the articles of my house and went. Hari Om uncle alsopressed my neck and threw but I remained lying silently. Onidentifying Hari Om present in the court, stated that accusedHari Om is present in the court today.

On looking at accused persons present in the court, saidthat 5 other persons apart from Hari Om were involved in theincident. Today, they are present in the court.”

“On next day of incident, in the morning, milkman cameand milkman uncle pushed the door and gate opened. On theopening of gate, I narrated the entire facts to the milkmanuncle.”

In his cross examination, the witness stated:-

“…Witness was read over the statement u/s 161 CrPC withthe help of ADGC and Shri Maheshwari, Counsel for the

complainant. Then, the witness stated that in the morning,milkman uncle came. He pushed the door and opened the door.I had got this fact recorded to the police in my statement thatI went to him and narrated entire facts. I cannot state thereason as to why it was not recorded.”

“Darogaji has recorded this fact incorrect in my statement thatin the morning, after rising of the Sun, my neighbours took meout from the house. Then I saw that my uncle Doctor Saaband many persons with him had come to the house. I cannotsay as to how this fact got recorded.”

“When I reached the house of my Tau then my uncle Kotwalalso reached there and I narrated the entire incident of thenight to Tau and Uncle and also told that Hari Om uncle and 5other have committed the incident and also told that I witnessedthe incident. After narrating entire facts to Tau and uncle, Iwent to my house with Milkman uncle and Tau and when policecame after 5 minutes, in the morning, police came. Then, theywere told that Hari Om and 5 uncles came in the night. Theycommitted the incident. I have witnessed the incident. Told theincident to milkman uncle in the morning.”

“After meeting milkman, met Tauji (elder brother of father).When I returned then police had come. Police stayed till eveningand police had asked in my presence as to where mother waslying? Where was brother lying, where was sister lying andafter throttling, where were (they) thrown. Police did not askthe milkman, my uncle Kotwal and elder uncle Satyapal. I hadtold all these facts to the police.”

“I was sleeping on the takht. I had told this fact to the police. IfDarogaji did not record this fact in my statement then I couldnot state the reason. I had told this fact to Darogaji cutting theneck with iron knife. If the fact of iron knife is not recorded inmy statement then I cannot state the reason.

I had told police that two uncles (persons) were holdingthe hand and legs of my mother. I cannot state the reasons asto why this fact is not recorded in my statement.

I had told Darogaji in my statement as such that oneuncle was pressing the neck of my sister. One uncle pressedthe neck of Ashish. This fact is also not recorded separately inmy statement then I cannot state the reason. I had also toldDarogaji that Hari Om had pressed my neck and threw in theother room. If this fact that Hari Om pressed my neck andthrew in other room is not recorded, then I cannot state itsreason. Hari Om demanded key from my mother. If it is notrecorded then I cannot state the reason.

When the neck of my mother was cut, mother had beenoverpowered by them. Then, we brothers and sisters screamedloudly. The house of Hori Lal Darogaji does not exist oppositeto my house. Even there is no house of Ram Prakash. No onecame on our hue and cry. Hari Om tuned the TV in full volume.I had told this fact about the screaming of us (siblings) loudlyand Hari Om opening TV and tuning with full volume to myuncle Kotwal Singh and my elder uncle Satyapal as well as tothe police. These facts were also told to milkman. If this factis not recorded then I cannot state the reason.All the six glasses in which my sister carried the water,were kept in kitchen. The time when the neck of my sisterPoonam was throttled then at that time she was lying in herroom. When the neck of my sister was pressed then I was inmy mother’s room. The neck of Anshul was pressed and theneck of Poonam was pressed. After pressing the neck(illegible), I was thrown on the takht in my mother’s room andI was sleeping on the takht itself.

When the accused persons went then I had gone to seemy sister and brother. I had told this fact to Darogaji that afterthe departure of accused persons, I had gone to see my brotherand sister. If this fact is not recorded in my statement then Icannot state the reason.

I had voluntarily gone to see my brother and sister. Iwas not sent by anyone. I was not thrown in the room of my

70SUPREME COURT REPORTS

brother and sister. I was thrown on the takht itself. This wasthe same room where I was sleeping. It was not other room.After seeing brother and sister, I again sat on the takht andbegan weeping. Thereafter, I slept. When the milkman pushedthe door then I got up.”

BF. PW7 Dr. R.A. Sharma, who had conduced Post Mortem asstated hereinabove, proved the concerned Reports.

In his cross examination in relation to questions about the injuryon the body of Smt. Nirdosh Devi, the witness stated:-

“This fact is correct that injury of neck was clean cut and in aCsingle cut and it was more on left side and less on right side. Itis possible that the time when the injury was caused, at thattime, if the person had been lying. Left portion of the neckwould be above and right part would be under where it wascut. On that side, it is possible to cause injury from heavy sharp-Dedged weapon. Such type of injury is possible if inflicted onthe person who is sleeping or unconscious.”

G. PW9 SI Ram Prasad who conducted inquest on the dead bodyof Smt. Nirdosh Devi, stated in his cross examination: -

“It is correct that at the time of Panchnama, four bangles inEeach hand of deceased were unbroken. It is correct that nobroken bangle was found near deceased.”

H. PW10 SO Gautam, who had conducted the investigation atthe initial state, stated in his examination-in-chief:-

“On 29.10.08. Parcha No.2 was prepared in which arrest of 5Faccused persons namely Sanjay @ Sonu, Rizwan, Hasin Khan,Hari Om @ Hero and Saurabh @ Sanju and the statement ofeye-witness Ujjwal and copy of memo of Arrest of accusedpersons, recovery of illegal weapons and cartridges and thecase properties of Crime No.367/08 were mentioned and TaveraGvehicle bearing No.U.P 83J/7948 used in murder was seized.”

In his cross examination, the witness stated:-

“It is correct that on 28.10.08, in Parcha No.IA, I recorded thestatement of Ompal Singh s/o Hukum Singh, Om Prakash s/oLeeladhar and the name of Hari Om @ Hero is mentioned in

those statements. Besides this, in the statement of Raju s/oRam Kishan also, name of Hari Om @ Hero is mentioned andthe fact that 4-5 boys were sitting in Tavera vehicle is mentionedin these three statements.”

“First Parcha is in my hand-writing and second is in the hand-writing of Sub-Inspector whose name I do not recollect. ThisParcha was written after the alleged recovery. It is incorrectto say that some foul play has been done.”

“It is also correct to say that on 28.10.08, neither any searchfor milkman was made nor his name and address came intothe light till the accused persons were arrested. Whereas apartfrom milkman, there was no other witness to give informationto the complainant of the case.”

“It is correct that it is not mentioned in FIR that child Ujjwalwas left alive and he was the eye-witnesses. In site-map (ExhibitKa-20), presence of child Ujjwal at the time of incident is notmentioned. In the statement u/s 161 Cr.P.C. of child Ujjwal, Ihad recorded that accused persons pressed the neck of Ujjwalbut no medical examination of child Ujjwal has been gotconducted in this regard as to whether there is any pressingmark on the neck or not.”

“In my investigation, I did not find any quilt lying at the place ofincident on the dead-bodies of Smt. Nirdosh and KumariPoonam.”

I. PW11 Dr. B. K. Singh, Circle Officer stated in his examination-in-chief:-

“On 24.11.08, I recorded the statement of complainant KotwalSingh, witness Shankar Lal, Dr. Satya Pal, C/Dharmendra,C/Ramesh Chandra, C/Malkhan, C/Mawadh Singh….

“In the instant case, the gold and silver ornaments concernedwith the alleged loot were stated to have been recovered,whether said ornament were of gold and silver, no suchexamination was got conducted from the Forensic ScienceLaboratory in this regard. Recovered alleged looted articlehad not been got identified by Ujjwal (age 7 years).”

“I had perused record and statements written by previousInvestigating Officer. I did not enquire Ujjwal, neither statementof Ujjwal was verified by previous Investigating Officer afterreading over, nor I met with Ujjwal during investigation. I hadread statement of Ujjwal written by G. P. Gautam (previousI.O.).”

“Owner of Tavera vehicle has not been identified in theinvestigation. I cannot say as to whether accused in Taveravehicle were its owner or not.”

“Witness Satyapal had also given statement that after receivinginformation, he at first reached the place of incident along withKotwal Singh.

Statement of witness Shankar Lal was recorded 26 daysafter the incident. He was the same Shankar Lal who hadinformed the Complainant. After informing, he stated to havegone again on the spot along with Kotwal and Satyapal.”

17. Smt. Manoj Kumari, wife of Hari Om was examined as DW1,who stated that she and her husband were not tenants of Smt. NirdoshDevi at any time. Ms. Pratibha, Junior clerk working in Road TransportOffice of District Firozabad was examined as DW2 who stated that asper official record, the owner of Tavera vehicle bearing No.UP83J7948,at the time the incident had occurred, was one Sunil Kumar s/o OmPrakash Aggarwal.

18. The Trial Court by its judgment dated 06.07.2015 acceptedthe case of prosecution against all six accused in so far as the offencepunishable under Section 396 of the IPC was concerned. It, however,

acquitted all the accused of the other offences with which they werecharged. It was observed that no disclosure statement of the accusedHari Om in relation to recovery of knife was recorded, and as such therequirement of Section 27 of the Indian Evidence Act (“the Act”, forshort) were not satisfied, however, the recovery could still be admissibleunder Section 8 of the Act. It was also observed that there were certainomissions in the statement of Ujjawal recorded during investigation whichwere brought out in his cross examination, but those omissions were notenough to reject his evidence. By its order dated 13.07.015, sentencesas quoted in paragraph 1 hereinabove were imposed by the Trial Court.

19. All six convicted accused preferred criminal appeals as statedearlier challenging their convictions and sentences and so also ReferenceNo.8 of 2015 was made to the High Court for confirmation of the deathsentence awarded to the accused Hari Om.

The High Court by its judgment and order presently under appealaffirmed the conviction and sentence of the accused Hari Om, Sanjay@ Sonu, Saurabh @ Sanju and acquitted the other three accused namedHaseen Khan, Rijwan and Rafique @ Bhaiye of the charges levelledagainst them. The reason for their acquittal was:-

“As far as the accused-appellants Haseen Khan, Rijwanand Bhaiye are concerned, they were neither named nor therecovery from them, was proved beyond reasonable doubt, hence,the same was disbelieved and they were acquitted under Section412 IPC and their fingerprints were also, did not tally with thedisputed fingerprints collected from the spot. They were also notnamed by witness Ujjwal or any other witnesses. According toevidence against them, during investigation there was recoveryand first time they were identified before the court by the witnessUjjwal along with other accused. It is also clear from the recordthat the accused-appellants appeared before the trial court onprevious dates and on subsequent date, witness Ujjawal identifiedthem. Hence, there was sufficient time and opportunity to identifythem. No identification parade took place in the present case.The incident is of the year 2008 and after about three years theywere identified by child witness Ujjawal first time before the court,hence, this evidence is doubtful. Considering the entire facts andcircumstances, including the identification for the first time beforethe court, it is clear that the prosecution failed to prove the case

Abeyond doubt against the appellants Haseen Khan, Rijwan andBhaiye alias Farid alias Rafique and they are entitled for acquittal.”

20. In these appeals Mr. B. H. Marlapalle, learned SeniorAdvocate appeared as Amicus Curiae on behalf of the accused. Hisprincipal submissions were:-B

a) In the face of glaring inconsistencies in the version given byPW5 Ujjawal and in the face of record as it stood, it would beextremely hazardous to accept the testimony of PW5 Ujjwal andmake it the basis of conviction of accused Hari Om.

Cb) There was no link evidence suggesting that the fingerprintswere correctly lifted from the house of the deceased, and wereduly preserved before sending them for fingerprints expert’sopinion.

c) The only material against accused Sanjay @ Sonu and SaurabhD@ Sanju was the fact that their sample fingerprints tallied withthose lifted from the house of the deceased. In the absence ofany substantive evidence, this fact alone would be insufficient tosustain their conviction and sentence. Reliance was placed on thedecision of this Court in Musheer Khan alias Badshah Khanand another vs. State of Madhya Pradesh.[6]

d) Out of six named accused charged of having committed theoffence of dacoity, three accused having being acquitted, whoseacquittal was not challenged, the remaining three accused couldnot be convicted under Section 396 IPC. Reliance was placed onthe decisions of this Court in Ram Shankar Singh and OthersFvs. State of Uttar Pradesh[7]and Saktu and Another vs. State ofUttar Pradesh[8].

21. Ms. Aishwarya Bhati, learned Additional Solicitor Generalappearing for the State, on the other hand, submitted that the testimonyof PW5 Ujjwal was completely worthy of reliance and that even goingGby the rule of prudence, version given by PW5 Ujjwal was fullycorroborated on material particulars. She relied upon the decisions of

6 (2010) 2 SCC 748

7 AIR (1956) SC 441

H8 (1973) 1 SCC 202

this Court in Suryanarayana vs. State of Karnataka[9], State of UttarPradesh vs. Krishna Master and Others[10]and Manmeet Singh aliasGoldie vs. State of Punjab[11].

22. At the outset, we must note the perspective from which theevidence of child witness is to be considered. The caution expressedby this Court in Suryanarayana[9] that “corroboration of the testimonyof child witness is not rule but measure of caution andprudence” is well-accepted principle. While applying said principle tothe facts of that case, this Court in Suryanarayana[9]observed:-

“5. Admittedly, Bhavya (PW 2), who at the time ofoccurrence was about four years of age, is the only solitaryeyewitness who was rightly not given the oath. The time andplace of the occurrence and the attending circumstances of thecase suggest no possibility of there being any other person as aneyewitness. The evidence of the child witness cannot be rejectedper se, but the court, as rule of prudence, is required to considersuch evidence with close scrutiny and only on being convincedabout the quality of the statements and its reliability, base convictionby accepting the statement of the child witness.The evidence ofPW 2 cannot be discarded only on the ground of her being oftender age. The fact of PW 2 being child witness would requirethe court to scrutinise her evidence with care and caution. If sheis shown to have stood the test of cross-examination and there isno infirmity in her evidence, the prosecution can rightly claim aconviction based upon her testimony alone. Corroboration of thetestimony of child witness is not rule but measure of cautionand prudence. Some discrepancies in the statement of childwitness cannot be made the basis for discarding the testimony.Discrepancies in the deposition, if not in material particulars, wouldlend credence to the testimony of child witness who, under thenormal circumstances, would like to mix-up what the witness sawwith what he or she is likely to imagine to have seen. Whileappreciating the evidence of the child witness, the courts arerequired to rule out the possibility of the child being tutored. In theabsence of any allegation regarding tutoring or using the child

9 (2001) 9 SCC 129

10 (2010) 12 SCC 324

11 (2015) 7 SCC 167

witness for ulterior purposes of the prosecution, the courts haveno option but to rely upon the confidence inspiring testimony ofsuch witness for the purposes of holding the accused guilty ornot.

6. This Court in Panchhi v. State of U.P.[12] held that the evidenceof the child witness must be evaluated more carefully and withgreater circumspection because child is susceptible to be swayedby what others tell him and thus an easy prey to tutoring. Theevidence of the child witness must find adequate corroborationbefore it is relied upon, as the rule of corroboration is of practicalwisdom than of law (vide Prakash v. State of M.P.[13]; BabyKandayanathil v. State of Kerala[14]; Raja Ram Yadav v. Stateof Bihar[15]; Dattu Ramrao Sakhare v. State of Maharashtra[16]).

7. To the same effect is the judgment in State of U.P. v. AshokDixit[17].

8. In this case Bhavya (PW 2) when appeared before the trialcourt was of 6 years of age. After questioning the witness, theSessions Judge found, “though the girl is 6 years old she is activeand she understands everything”. Without administering the oathto the witness her statement was recorded wherein she stated:

“I know Saroja, I call her as ammayi, she is my aunt.The person sitting in the court box is my uncle. His name isSuryanarayana. Since I call him as uncle, he is my uncle.

My aunt Saroja is now dead. I know how she died.Several days back after taking lunch my ammayi i.e. my auntSaroja and myself went to the lake to wash the clothes and totake bath. On that day, my uncle Suryanarayana sitting in thecourt pierced with knife the stomach and neck of my ammayi.Hence she suffered injuries and her entire body covered withblood. My ammayi while running after being injured, fell down,I screamed. Immediately I ran and told my father and motherthat uncle killed the aunt. If the knife is shown I can identify (a

12 (1998) 7 SCC 177 : 1998 SCC (Cri) 156113 (1992) 4 SCC 225 : 1992 SCC (Cri) 85314 1993 Supp (3) SCC 667 : 1993 SCC (Cri) 108415 (1996) 9 SCC 287 : 1996 SCC (Cri) 100416 (1997) 5 SCC 341 : 1997 SCC (Cri) 685H17 (2000) 3 SCC 70 : 2000 SCC (Cri) 579

white cloth bag sealed, was opened). I have seen the knifenow. With the same knife that day my uncle pierced my ammayi(this was marked as Ext. P-01) on that day. Police asked meas to what happened, I have told everything to the police.”

9. In her cross-examination the witness stated that before thedate of occurrence the deceased was living with her (witness)parents. At the time of occurrence the witness used to go toaanganwadi school. The witness denied the suggestion that shehad not gone with the deceased to wash the clothes. Nothingfavouring the defence could be extracted out of her in the cross-examination. She denied the suggestion that “my uncle did notpierce my aunt with the knife. It is not correct that I have notseen the knife in the hands of my uncle”. The trial court as wellas the High Court accepted her testimony as no inherent defectwas pointed out by the defence. We also find no reason to take acontrary view. The mere fact that her mother had told that shedid not know any other language except Malyalam and that thewords spoken to by her were not in that language cannot be usedas ground to reject her testimony. The child and her parentsconversed in Malyalam language at their residence which wasexplained to the investigating officer in the language which wasunderstood by him. There is no ground of doubting the veracity ofthe testimony of this child witness as we find that her name ismentioned in the FIR which is proved to have been recordedimmediately after the occurrence. P.H. Krishnappa, the Tahsildarwho prepared the inquest report is also proved to have recordedthe statement of this child witness, wherein, she is shown to havemade similar deposition.Otherwise also there is sufficientcorroboration on record to rule out the possibility of PW 2 beingtutored or used for ulterior purposes by some alleged interestedpersons. In the absence of any inherent defect we do not find anysubstance in the plea to reject the testimony of this child witness.The statement of PW 2 shows that the deceased and the appellantwere living together as husband and wife and she used to addressthem as uncle and aunt. Her testimony to the effect of thedeceased living with PW 1 is sufficiently corroborated by the otherevidence led in the case. The factum of the deceased havingreceived stabbed wound with knife is proved by the medicalevidence. The recovery of the knife at the instance of the appellant,

Ain consequence of his disclosure statement, leaves no doubt tobelieve her statement. The place of occurrence being near thewater tank has not been seriously disputed. The report receivedfrom FSL as per Exhibit P-15 shows that blouse (MO 2), towel(MO 3) and the bangle pieces (MO 4) of the deceased and theknife (MO 1) which was used in the commission of the crime, theBtowel (MO 7), lungi (MO 6) and shirt (MO 5) of the appellantwere found to be stained with blood. Dr Ram Dass (PW 12) hasopined that the injuries found on the dead body of the deceasedcould be caused with weapon like MO 1.”

(emphasis supplied)

23. We may now consider the evidence of PW5 Ujjwal in thebackdrop of the principles discernible from the decisions of this Court asstated above.

(A) The points on which the testimony of PW5 Ujjwal getsDcorroborated by other pieces of material or evidence on record are:

i) According to him, call was received on mobile of hismother, whereafter she opened the door and let the accused in.

The mobile of his mother bearing number [REDACTED]definitely received call at about 9.27 p.m. from mobile bearingEnumber [REDACTED]. The call lasted for 20 seconds.

However, there is nothing on record that the concernedmobile was that of accused Hari Om, or any of the accused. Therecord does not throw any light, nor any efforts were made by theinvestigating machinery to trace the name of the person holdingFthis mobile phone number.

However, there is some corroboration available from thetestimony of PW2 Ompal Singh that on 28.10.2008 he had foundHari Om standing near vehicle in the vicinity of the house of thedeceased; and upon being asked, accused Hari Om had repliedGthat he was calling Smt. Nirdosh Devi. However, according toPW2 Ompal Singh, that was at about 11.00 p.m. and not at orabout 9.27 p.m.

ii) After being admitted into the house, tea and water wasoffered to accused Hari Om and his associates.

There were glasses which were found in the kitchen whichfact certainly corroborates the version given by PW5 Ujjwal.

iii) It was stated that his mother was overpowered by twoof the accomplices and her throat was slit by accused Hari Om.Thereafter, his three siblings were throttled to death, and an attemptwas also made to throttle PW5 Ujjwal.

The manner in which his mother and siblings were done todeath is corroborated by the medical evidence on record.

However, if the mother was being overpowered, there wereno signs of struggle and none of her bangles was broken. Further,if her throat was slit and her left side blood vessels of the neckand trachea were cut, the blood would have instantaneously gushedout. But, there were no blood spots anywhere else except belowthe cot where the body of Smt. Nirdosh Devi was found lying insupine condition.

One more striking feature of the matter is that there wasno medical evidence either in the form of any documents, picturesor even statement of any medical professional that PW5 Ujjwalwas given medical attention as result of attempts of throttling.

iv) The location of dead bodies, as mentioned by him, is undoubtedlycorroborated by the site map, inquest panchanama and othermaterial.

(B) Having dealt with the features which get corroborated to someextent, we will now deal with certain inconsistencies or infirmities whichare evident from the record.

i) According to PW5 Ujjwal, in the morning of 29.10.2008, thefirst person to see him was PW4 Shankar Lal (milkman), whotook him to the house of his doctor uncle (Dr. Satyapal Singh).

However, according to his statement recorded duringinvestigation, he was taken to the house of his uncle by theneighbours.

ii) According to his court statement, after reaching the house ofsaid uncle, he had narrated the entire incident to his other unclePW1 Kotwal Singh and said Dr. Satyapal Singh and told themthat Hari Om and his associates had committed the murders andalso told them that he had witnessed the incident.

AHowever, the FIR lodged by PW1 Kotwal Singh spokeotherwise. According to the reporting, the accused were unknownpersons. The reporting also did not disclose that PW5 Ujjwal hadsurvived, despite being attempted to be murdered, and that he hadwitnessed the incident. As matter of fact the FIR did not makeany reference to PW5 Ujjwal.B

iii) According to PW5 Ujjwal, he had narrated the entire incidentto PW4 Shankar Lal (milkman) and Darogaji.

On this score also, the record spoke otherwise, accordingto which, till 29.10.2008 the names of Hari Om and his associatesChad not surfaced as suspects at all. The initial registration of crimewas against unknown persons.

iv) There are other inconsistencies and omissions with regard tothe manner in which his siblings were done to death.

(C) Apart from the aspects referred to hereinabove touching uponDthe comparison of the version given in court, as against his statementrecorded during investigation, certain other features are available fromthe record which must be noted at this stage.

i) If PW5 Ujjwal was attempted to be murdered and as disclosedby PW4 Shankar Lal (milkman) he had seen ligature mark onEthe neck of PW5 Ujjwal, there was nothing on record supportingthis fact.

ii) Parcha No.2 which was part of papers pertaining to investigation,did make reference to the statement of PW5 Ujjwal recordedduring investigation. However, as stated by PW10 S.O. Gautam,Fthe said Parcha was not in his handwriting, though, he was inchargeof investigation. He could not give any answer as to who hadwritten that Parcha.

iii) If according to the Prosecution, PW4 Shankar Lal was thefirst person to reach the place of occurrence, his statement wasGrecorded 26 days after the incident. The response given by theconcerned Investigating Officer shows that no attempts weremade to trace said Shankar Lal.

iv) The versions given by PW1 Kotwal Singh and PW4 ShankarLal in court did not, in any way, suggest that the names of suspects

were narrated to them by PW5 Ujjwal, or that he had told themabout the entire incident. As matter of fact, PW1 Kotwal Singhwent to the extent of asserting that it was through Dr. SatyapalSingh that he came to know about the incident.

v) Thus, the version given by PW5 Ujjwal that he had narratedthe entire incident to PW1 Kotwal Singh, PW4 Shankar Lal andDarogaji was not supported by any of them. Moreover, the otherperson namely Dr. Satyapal Singh to whom similar narration wasgiven by PW5 Ujjwal, was not even examined by the prosecution.

vi) The charge-sheet did indicate Dr. Satyapal Singh to be one ofthe relevant witnesses, and yet he was not examined. On theother hand, the charge-sheet did not even speak of PW5 Ujjwalto be relevant and material witness.

24. Having culled out the essential features emerging from therecord, we must state that we find it difficult to place reliance upon thetestimony of PW5 Ujjwal and in our view, the said version can not bemade the basis of conviction of Hari Om.

It is true that the assertion made by him that Hari Om used to bea tenant in their house was supported by PW2 Ompal Singh. Even if weaccept that accused Hari Om was known face to PW5 Ujjwal, andthe fact that the incident occurred inside the house where PW5 Ujjwalwould naturally be available, but on the issue whether he had witnessedthe incident, the glaring inconsistencies on record cannot be discarded.In Suryanarayana[9]after setting out the guiding principles forappreciation and consideration of the evidence of child witness, thisCourt had found in paragraph 9, that there were no doubts at all withregard to the veracity to the testimony of the child witness, nor werethere any inherent defects. The name of the child witness figured in thatcase in the FIR and Inquest; and right from the initial stages, her presencewas adverted to, which is why no doubts could be entertained. However,such doubts and defects are quite evident in the present matter.

25. In Digamber Vaishnav and Another vs. State ofChhattisgarh[18], bench of three Judges of this Court, while consideringthe matter in the light of the fact that the child witness had not disclosedabout the accused in the first instance, observed:-

A“…..None of the other witnesses have identified the appellants.Therefore, heavy reliance was placed on the testimony of PW 8.She did not tell PW 1, Badridas about the appellants whiledisclosing about the incident for the first time. This is reflectedfrom the FIR which has been registered against unknown persons.In such circumstances, it is risky to rely on the uncorroboratedBidentification of the appellants at the instance of PW 8, who hasnot disclosed about the appellants at the first instance before PW1 Badridas.”

Similarly, in Radhey Shyam vs. State of Rajasthan[19], theevidence of child witness was not found to be inspiring confidenceCbecause of inconsistencies in the version of the witness, as well as becauseof the absence of corroboration from the other prosecution witnesses.

26. In the circumstances, we do not find it safe to rely on theversion given by the child witness in the instant case, who was aboutfive years of age when the incident had occurred.D27. There are other features from the evidence touching upon theinvolvement of accused Hari Om such as:-

(I) chhuri or knife was said to have been recovered upon beingpointed by accused Hari Om. In the absence of any memorandum,Ethe trial court rejected the theory that such recovery would beadmissible under Section 27 of the Act. It was however observedthat such recovery would be admissible under Section 8 of theAct. Though the conclusion arrived at by the Trial Court is notinconsistent with some of the decisions rendered by this Court,the evidence in that behalf, by itself may not be enough to sustainFthe finding of guilt. It will be one of the factors to be taken intoaccount in the ultimate analysis.

(II) Accused Hari Om was seen in the neighbourhood, or nearthe house of Smt. Nirdosh Devi next to red Tavera vehicle byPW2 Ompal Singh and one Ram Prakash. During investigation,Gstatement of one Raju, owner of the house where accused HariOm resided, was also recorded. Ram Prakash and Raju were notexamined during trial and, as such, apart from the statement ofPW2 Ompal Singh, we do not have any material to support theversion that accused Hari Om was either in the neighbourhood of

Smt. Nirdosh Devi, or was moving about in red Tavera vehicleon 28.10.2008. If the names of accused Hari Om and his associateswere not known as suspects to the police on 28.10.2008, which isthe case of the prosecution, the link in that behalf has to be eitherthrough PW2 Ompal Singh or through Ram Prakash or Raju.When latter two were not examined at all, we have to rely only onthe testimony of PW2 Ompal Singh. His cross-examination revealsthat he made no attempts to talk to the police on 28.10.2008, thoughhe asserted in his examination-in-chief that in the morning of28.10.2008 he was sure that the culprits were accused Hari Omand his associates. The version given by PW2 Ompal Singh is,therefore, not free from doubt.

(III) The sample fingerprints of accused Hari Om did not matchwith any of the fingerprints taken from the house of the deceased.

(IV) With the acquittal of all the accused in respect of offencespunishable under Section 412 IPC and under the Arms Act, thereis no other material pointing towards the involvement of accusedHari Om.

28. Thus, out of three features which could possibly be put againstaccused Hari Om, the version given by the child witness being unworthyto be relied upon, we are left with the evidence of recovery of knife,and the evidence of PW2 that he had spotted accused Hari Om near ared Tavera vehicle in the neighbourhood. The prosecution did not attemptto prove that the call received by Smt. Nirdosh Devi could be associatedwith accused Hari Om. Secondly, the time given by PW2 Ompal Singhagain did not match with the time of the call received by Smt. NirdoshDevi. Further, the evidence of PW2 Ompal Singh also contains inherentinconsistencies. In the premises, we do not find the material on recordsufficient to record conviction of accused Hari Om for the offence underSection 396 IPC, and he must be held entitled to benefit of doubt.

29. We now turn to the submissions b) and c) of Mr. Marlapalle,learned amicus curiae.

Insofar as accused Sanjay @ Sonu and Saurabh @ Sanju areconcerned, apart from the material that their sample fingerprints matchedwith those lifted from the house of the deceased, nothing was broughton record to suggest or suspect the involvement of said two accused.They were acquitted of the charges under Section 412 of IPC and under

Athe Arms Act. Whether their liability in the instant case can be fastenedwith the help of the fingerprint expert’s report is the question.

30. According to the record, Exhibit Ka 7 was the Panchnamatestifying the lifting of the fingerprints from the house of the deceasedby Constable Dharmender Singh. If the fingerprints were picked fromBthe glasses there is nothing to indicate what method was applied to liftthe fingerprints from the glasses allegedly used by the accused whenthey were offered water. What the record indicates is that somephotographs were sent to the office of the Director, Fingerprint Bureau,Lucknow and nothing more. It does not show the procedure adoptedfor taking such photographs, and whether such method is trusted andCtested one. The concerned person was not examined, who could havethrown light on these issues. The record also does not show whetherthose glasses by themselves were made available for appropriate analysis.There is, thus, no clarity in the process adopted by the investigatingmachinery.D31. In Prakash vs. State of Karnataka[20], the evidence concerningfingerprints was examined in the light of the procedure prescribed underthe relevant manual and it was observed:-

“33. Our attention was drawn to the Karnataka Police Manualand it appears that Nanaiah followed the guidelines laid downEtherein and perhaps acted in an overly cautious manner. Guideline1543 provides as follows:

“1543. The opinion of the fingerprint expert is of paramountimportance in the investigation of various crimes. The followinginstructions should be followed regarding chance finger andFfootprints and their developments, preservation of the scene,method of packing and other matters:”

34. Guideline 1544 in the Manual contains various provisions andclause (iv) and clause (v) are relevant for our purposes. Theyread as follows:

“1544. (i)-(iii) ***

(iv) If latent prints are found on portable articles they shouldbe seized under detailed panchnama duly packed and labelledand sent to the Fingerprint Bureau with police officer with

instructions regarding the care of the package during thejourney.

(v) In sending the articles containing latent prints to the Bureau,proper attention must be given to their package. The followingessential points should be borne in mind:

• It should be ensured that no portion of the article whereprints may be found should get into contact with anythingelse and

• The articles should be securely packed in suitablecontainer.”

Clause (iv) was clearly not followed when Nanaiah took theplastic cover along with him and this is an extremely seriouslapse. However, we give him the benefit of doubt and assumethat it is perhaps with clause (v) in mind that Nanaiah took theplastic cover along with him.

35. While we completely disapprove of the manner in which Ext.P-18 was taken away by Nanaiah (and the investigating officerdid nothing about it), the case of the prosecution does not getstrengthened even if valid procedure was followed, since thereis nothing on record to show that the “admitted” fingerprints onExt. P-20 were those of Prakash which could be compared withthe fingerprints on Ext. P-18 and the enlarged photograph beingExt. P-19.

36. Assuming that Ext. P-20 was valid piece of evidence validlyobtained, there is no explanation why it was kept by theinvestigating officer from 14-11-1990 till 9-1-1991 when it wasreceived by Nanaiah. The Karnataka Police Manual highlightsthe importance of keeping safe an article containing fingerprints.In view of its importance, Nanaiah did not trust anyone with theplastic cover bearing the inscription “Canara Bank” (Ext. P-18)and carefully took it along with him to avoid its getting damagedby getting into contact with anything else. On the other hand, wehave the investigating officer keeping Ext. P-20 with him for almosttwo months and in circumstances that seem unclear. We cannotrule out the possibility of Ext. P-20 getting damaged due to carelesshandling.

A37. We are of the opinion that there is no fingerprint evidenceworth it linking Prakash to the murder of Gangamma.”

32. The procedure detailed in the Karnataka Police Manualcaptures the importance of development and preservation as well as themethod of packing and safe keeping. Such procedure, if adopted, willBnot raise any doubts. Secondly, in the aforesaid decision, the conduct ofthe Investigating Officer in keeping the concerned material with him foralmost two months, was not approved by this Court. In the present case,Constable Dharmender Singh was not examined by the Prosecution.There is nothing on record regarding the competence of said DharmenderSingh, and whether he was adequately trained, or was an expert in liftingCthe fingerprints from material such as glasses; nor was any evidence leddetailing out the procedure adopted by him. In the absence of any suchmaterial, it is extremely difficult to rely on the report that the liftedfingerprints from the glasses matched with the sample fingerprints ofaccused Sanjay @ Sonu and Saurabh @ Sanju.D

33. In any case, apart from the fingerprints, there was nothingelse on record against these two accused. It was observed by this Courtin Musheer Khan alias Badshah Khan and another vs. State ofMadhya Pradesh[6]:

“34. It will be noticed that under the Evidence Act, the wordE“admissibility” has very rarely been used. The emphasis is onrelevant facts. In way relevancy and admissibility have beenvirtually equated under the Evidence Act. But one thing is clearthat evidence of fingerprint expert is not substantive evidence.Such evidence can only be used to corroborate some items ofsubstantive evidence which are otherwise on record.”F

34. In Hukam Singh vs. State of Rajasthan[21], the onlycircumstance against the concerned accused pertained to his fingerprintson mirror. That circumstance by itself was not found to be sufficientby this Court to sustain the finding of guilt under Section 302 IPC againstthe accused. It was observed:-G

“6. The last circumstance on which reliance was placed on behalfof the prosecution was the presence of fingerprints of the appellanton the mirror Ex. 1. We fail to see how this circumstance can beregarded as necessarily implicating the appellant in the commission

H21 (1977) 2 SCC 99

of the murders. It was admitted by Sujan Singh that the appellantwas on visiting terms with this family and it is, therefore, possiblethat during one of his visits, the appellant might have touched themirror Ex. 1 and left his fingerprints on it. It is also not altogetherunlikely that even when the appellant was in the hutment of SujanSingh for the purpose of committing the theft of ornaments andother articles belonging to Sujan Singh after the quadruple murdershad been committed by some other persons, he might have touchedthe mirror Ex. 1 and in the process left his fingerprints upon it.The presence of the fingerprints on the mirror Ex. 1 is not such acircumstance as would necessarily lead to the inference that theappellant must have committed the murders of these four membersof Sujan Singh’s family.

7. It is now settled law that in case of circumstantial evidence, allthe incriminating facts and circumstances should be fullyestablished by cogent and reliable evidence and the facts soestablished must be consistent with the guilt of the accused andshould not be capable of being explained away on any otherreasonable hypothesis than that of his guilt. In short, thecircumstantial evidence should unmistakably point to one and oneconclusion only that the accused person and none other perpetratedthe alleged crime. If the circumstances proved in particular caseare not inconsistent with the innocence of the accused and if theyare susceptible of any rational explanation, no conviction can lie.Judged from this standpoint, it is not possible to affirm the convictionof the appellant for the offence of murder of any one or more ofBhanwar Singh, Roop Singh, Lad Kanwar and Inder Kanwar.The three circumstances relied upon by the prosecution are notincompatible with the innocence of the appellant insofar as themurders of these four persons are concerned. They are capableof being explained away on hypothesis other than that of guilt ofthe appellant. We may point out that in any event the view takenby the Sessions Court that the circumstances were not sufficientto found the conviction of the appellant was reasonable viewand the High Court was not justified in reversing it.”

35. It must be stated that both Sanjay @ Sonu and Saurabh @Sanju were unknown faces to PW5 Ujjwal, and were not subjected toany Test Identification. Apart from identification by PW5 Ujjwal in Court

Afor the first time, there is no other material to establish their presence.Thus, even if we accept that fingerprints lifted from the house of thedeceased could be associated with the said two accused, that by itself,in the absence of any substantive piece of evidence, cannot be made thebasis of their conviction. These accused are therefore entitled to thebenefit of doubt.B

36. Having come to the conclusion that all three appellants areentitled to benefit of doubt, we need not go into the fourth submissionadvanced by Mr. Marlapalle, learned Amicus Curiae.

37. In the premises, we accept the appeals preferred by accusedCHari Om, Sanjay @ Sonu and Saurabh @ Sanju. While setting aside theorders of conviction and sentence recorded against them, we acquitthem of all the charges levelled against them. They be set at liberty,unless their custody is required in connection with any other offence.

38. Before we part, we must record our appreciation for the sincereDefforts put in by Mr. B.H. Marlapalle, learned Amicus Curiae and forthe assistance rendered by him.

Devika Gujral

Appeals allowed.