1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1256 OF 2017
HARI OM @ HERO …APPELLANT
VERSUS
STATE OF U.P. …RESPONDENT
WITH
CRIMINAL APPEAL NO. 3 OF 2021
(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.9087 OF 2017)
AND
CRIMINAL APPEAL NO. 4 OF 2021
(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.9088 OF 2017)
J U D G M E N T
Uday 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,
2
Rafique @ Bhaiye @ Fareed were tried for having committed offences
punishable under Sections 396, 412 of IPC1
and under Section 3(2)(v) of the
SC/ST2 Act. These six accused were also tried by the Trial Court3
for
offences under Section 25 of the Arms Act, 1959 in Sessions 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 in said seven trials, the Trial
Court recorded as under: -
“Convict Hariom @ Hero is awarded death sentence for the
offence u/S 396 IPC. He shall be hanged till death. This
order related to death sentence shall be in accordance with
the confirmation of the Hon’ble High Court u/S 366 Cr.P.C.
Accused Hariom @ Hero is acquitted from Section 412 IPC
and Section 3(2) 5 of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act and from Section 25
Arms act in Crime No.371/2008.
Convicting accused persons Rijwan, Haseen, Bhaiye @
Fareed @ Rafique, Sanjay @ Sonu, Saurab @ Sanju u/S
396 IPC, they are awarded life imprisonment and
Rs.25,000/- fine to each of the accused.
Accused persons Rijwan, Haseen, Bhaiye @ Fareed @
Rafique, Sanjay @ Sonu, Saurabh @ Sanju are discharged
u/S 412 IPC and Section 3(2) 5 of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act and
accused Rijwan is acquitted from the offence u/S 25 Arms
Act in Crime No.369/08, accused Haseen is acquitted from
the offence under Section 25 Arms Act in Crime
No.370/08, accused Bhaiye @ Fareed is acquitted from the
offence under Section 25 Arms Act in Crime No.381/08,
accused Sanjay @ Sonu is acquitted from the offence under
Section 25 Arms Act in Crime No. 368/08 and accused
1
Indian Penal Code
2
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
3 Additional Sessions Judge-2, Firozabad
3
Saurabh @ Sanju is acquitted from the offence under
Section 25 Arms Act in Crime No.372/08.
75% of the amount of fine shall be given to the sole
surviving member of the victim family i.e. Ujjawal. In case
of default of payment of fine, accused persons shall serve 6
months of additional imprisonment.”
2. Death sentence having been awarded to accused Hari Om, the matter
stood referred to the High Court4 by way Reference No.8 of 2015. All the
aforementioned six accused also filed Criminal Appeal Nos.3316 of 2015,
3265 of 2015, 3317 of 2015, 3836 of 2015, Capital Appeal No.3086 of 2015
and Criminal Appeal No.3512 of 2015 respectively challenging their
convictions and sentences.
3. The High Court by its common judgment and order dated 03.03.2017
passed in the aforestated Reference and Appeals: -
(a) affirmed the conviction and sentence of death imposed upon
accused Hari Om and dismissed his Appeal.
(b) affirmed the conviction and sentence awarded to accused
Sanjay @ Sonu and Saurabh @ Sanju and dismissed their
Appeals.
4
The High Court of Judicature at Allahabad
4
(c) accepted the Appeals of accused Haseen Khan, Rafique @
Bhaiye and Rijwan and acquitted them of the charges leveled
against them.
4. Criminal Appeal No.1256 of 2017 is preferred by Hari Om while
Special Leave Petition (Criminal) Nos.9087 and 9088 of 2017 are preferred
by Sanjay @ Sonu and Saurabh @ Sanju respectively challenging the
judgment and order dated 03.03.2017 passed by the High Court. No appeal
has been preferred by the State challenging acquittal of Rijwan, Haseen
Khan, Rafique @ Bhaiye.
5. Leave granted in aforesaid Special Leave Petitions.
6. The initial reporting in the instant matter was made by Kotwal Singh
(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 a house in Nagla Mirja
Bada and were living there. Today, in the night of 27 &
28/10 some unknown persons have committed murder of
my sister-in-law Smt. Nirdosh Devi age 40 years, niece Ku.
Poonam age 18 years, nephew Ashish age 12 years and
nephew Anshul age 10 years in which neck of my sister-inlaw is cut and murder of all the three has been committed
by pressing neck/throttling. The incident has come to
knowledge in the morning today when milkman came. All
the four dead-bodies are lying separately in both two rooms
and after breaking box, almirah, suitcase etc. they have
taken away all the house-hold articles, jewellery and cash.
List of articles looted will be submitted subsequently.
Report be registered and necessary action be taken.”
5
Crime 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.
Gautam, who prepared Site Map (Ext.Ka-20). On the same day
PW9 Sub-Inspector Ram Prasad conducted inquest on the dead
bodies of Smt. Nirdosh Devi, Kumari Poonam, Masters Ashish and
Anshul and sent them for autopsy. He had found these four dead
bodies lying in supine condition.
B. In the presence of two witnesses, namely, PW3 Harpal
Singh and one Mukesh Kumar:-
(i) Blood-stained earth from the floor below the cot where
the body of Smt. Nirdosh Devi was lying and the portion of blood
stained “baan” (rope) of the cot were taken (vide Ext. Ka-6).
(ii) Finger prints from certain articles like utensils, glasses
from the house of the deceased were taken by Constable
Dharmender Singh, DCRB (vide Ext. Ka-7).
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C. Statements of Ompal Singh (later examined as PW2), Ram
Prakash, Raju (owner of the house where accused Hari Om used
to live) and Manoj Kumari (wife of Hari Om) were also recorded,
which disclosed possible involvement of Hari Om and his
associates.
D. The Post-Mortem on the dead bodies of Smt. Nirdosh Devi
and Kumari Poonam was jointly conducted by PW7 Dr. R.A.
Sharma and Dr. Ajay Agarwal, while the Post Mortem on the dead
bodies of Masters Anshul and Ashish was conducted by PW7 Dr. R.
A. Sharma. The injuries on the dead bodies were described 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, more on left side, left side blood vessels cut
trachea cut, right and left side 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.
Semi digested food was found in stomach. Brain was
noted pale. Cause of death was due to shock and
hemorrhage as a result of ante mortem injuries.
Vaginal smear made. Slide prepared and sent to
Pathologist SNMH Firozabad through S.O., P.S.
Ramgarh.”
b. Kumari Poonam: aged 18 years
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“i. Ligature mark 13 cm x 1.5 cm oblique, lower
part of neck in middle part and extending upto right
side upper part of neck. On dissection underlying
muscles contused.
On internal examination membranes and brain
were found congested, pleaura, Jarynx, trachea were
found congested. Hyoid bone was found fractured.
Both lungs congested. Semi digested food was found
in stomach. Cause of death was due to Asphyxia as a
result of strangulation. Vaginal smear made. Slide
prepared and sent to Pathologist SNMH Firozabad
through S.O., P.S. Ramgarh.”
c. Master Ashish: aged 12 years
“i. Multiple contusion on right side, front of neck in
an area 6 cm x 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 size 1 cm x 0.3 cm.
Cricoid cartilage and Thyroid cartilage found
fractured. Death was due to Asphyxia as a result of
throttling.”
d. Master Anshul: aged 10 years
i. Contusion brown dry over front of neck 12 cm x 5
cm over left side 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 found congested. Membranes,
brain congested. Semi digested food present in
stomach. Spleen and kidneys were noted congested.
Cause of death was due to Asphyxia as a result of
throttling.”
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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 the
complainant went to “Sailai Choraha” and at about 11 a.m.
apprehended five out of aforesaid six persons while one of them,
namely, Rafiq @ Bhaiye ran away. These persons were found to
be travelling in a Red Tavera vehicle bearing No.UP83J/7948.
From the personal search of these five persons following articles
were recovered:-
(a) from Sanjay @ Sonu : country made pistol and two
live cartridges
(b) from Rijwan : one country made pistol of 12 Bore
and 4 live country made cartridges
(c) from Haseen Khan: one country made pistol of 3.15
Bore with 3 live cartridges
(d) from Hari Om @ Hero: Double Barrel Pauna rifle and
one 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: a chhuri (knife).
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From the collective possession of these five persons, following
articles5 were also recovered:
“one polythene bag containing one identity card of
Rajpal and Pass-Book of Nirdosh Devi & one PassBook of joint account of Manju Devi & Sanjay, one
Pass Book of joint account of Nirdosh Devi and
Rajpal of Indian State Bank; two bangles of yellow
metal (gold) from red colored Shaneel purse; a ring of
yellow metal (gold) were recovered with cash of
Rs.5,000/-; 02 ladies wrist watches from yellow
colored Shaneel purse, one silver Kardhani (of 5 Lar)
of white metal weighing about 250 gms from red
Shaneel purse, one ½ silver Kardhani from Badami
coloured Shaneel purse and one yellow metal of
golden colour were recovered from red coloured
Shaneel purse.”
B. Crime Nos.368 to 372 of 2008 for the offences punishable
under Section 25 of the Arms Act, 1959 were thereafter registered
against Sanjay @ Sonu, Rijwan, Hari Om @ Hero, Haseen Khan
and Saurabh @ Sanju respectively.
C. Apart from the arrest of the aforesaid five persons, the
statement of Ujjwal, five years old son of Smt. Nirdosh Devi (the
lone survivor) was recorded. According to the record, his statement
could not be recorded on the previous day as Ujjwal was under
shock and unable to make any statement.
5 As stated by PW10 S.O. Gautam in his deposition
10
D. A chhuri/knife was recovered at the pointing of accused Hari
Om in the presence of Panchas.
E. The registration of Crime No.367 of 2008 was altered to that
under Sections 396 and 412 IPC and in respect of offences
punishable under the SC/ST Act.
9. On 30.10.2008 the investigation was taken over by PW11 Dr. B.K.
Singh, Circle Officer, Firozabad during the course of which, he recorded
statements of various persons. On 24.11.2008, he recorded the statements
of PW1 Kotwal Singh, PW4 Shankar Lal (milkman), Dr. Satya Pal (elder
brother of PW1 Kotwal Singh) and constables Dharmendra, Ramesh
Chandra, Malkhan and Mawadh Singh.
10. The sixth person Rafique @ Bhaiye was apprehended on
05.11.2008.
11. On 03.12.2008, charge-sheet dated 24.11.2008 was filed by PW11
Dr. B. K. Singh. The basic information about the crime was stated as
under:-
“Statement of Complainant of case, confirmed seizurememo, statement of Shankar Lal, milkman, confirmed place
of incident, statement of family doctor of deceased, Dr.
Satyapal, confirmed statement of constable Shankar,
statement of Constable Dharmendra Singh, confirmed
finger-prints report, statement of the Constable who got
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conducted PM, confirmed PM, investigation against
accused persons viz. Sanjay @ Sonu Sharma, Rizwan,
Hassen Khan, Hariom @ Hero, Saurav @ Sanju, Bhaiye @
Fareed Khan.
Sd/-
24/11/2008
Charge-sheet u/S 396, 412 IPC & 3(2) 5 SC/ST Act
No.261
-----------
24/11/08
Sent/proceeding of fingerprints match is remaining to be
done for examination of case property.”
It is relevant to note that in the charge-sheet there was no reference
to the statement dated 29.10.2008 of Ujjwal, the youngest child of Smt.
Nirdosh Devi nor did it say or suggest that he was a relevant witness.
12. On 04.12.2008 PW11 Dr. B. K. Singh sent the finger prints lifted
from various articles, from inside the house of the deceased as 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 of finger
prints examination. The relevant portion of the report was as under:
“DISPUTED FINGER PRINTS: finger prints lifted through
lifting tape were affixed on four papers. Finger prints have
been marked as No.8898 to 8922.
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Sample of Finger prints: Sample finger prints of Sh. Sanju
@ Saurabh, Bhaiye @ Farid, Rijwan, Hariom @ Hero,
Sanju @ Sonu Sharma and Haseen Khan taken on
slips/parchi dated 4.12.08. All the right & left 10 fingers
print have been marked as No.8923 to 8982 respectively.
Sd/- (Illegible)
Sd/- (Illegible)
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. Its formation and line pattern are same. In
enlarged pictures, identical lining pattern have been shown
in red lines. Details of which are mentioned in Matching
list.
Para 2: D.F.P. impression No.8914 is similar/identical to
Sample F.P. No.8963. Its formation and lining are same. In
the enlarged picture, similar/identical lining pattern have
been shown in red lines. Details of which are mentioned in
Matching list.
Para 3 : D.F.P. impression No.8917 is similar/identical to
Sample F.P. No.8964. its formation and lining pattern are
same. Identical lining pattern have been shown in red lines
(illegible) in enlarged pictures. Details of which are
mentioned in Matching list.
Para 4 : Lining characteristic are not sufficient in disputed
finger prints No.8904, 8905, 8906, 8907, 8908, 8916, 8919,
& 8920 for giving 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 lifted
from a glass in the kitchen of the house matched with the thumb impression
of right hand, being sample No.8923, of Sanju @ Saurabh while the
disputed finger print impressions 8914 and 8917 from another glass
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matched with the sample impressions of the thumb and index finger of right
hand being sample Nos.8963 and 8964 of Sanjay @ Sonu.
14. Appropriate charges were framed on 23.11.2009 against all six
accused. The charges framed in Sessions Trial No.234 of 2008 were as
under:-
“I, Lukmanul Haque, Special Sessions Judge, Court no.4,
Firozabad charge you accused persons namely Sanjay alias
Sonu, Rijwan, Haseen Khan, Hari Om alias Hero, Saurabh
alias Sanju, Fareed alias 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 Ramgarh police station area, District Firozabad, you
murdered the complainant’s sister-in-law, nephews, niece
and decamped with the jewelry, cash etc which were kept
at the house. This way you have committed an offence
which is punishable u/s 396 of the IPC and is in cognizance
of this Court.
Second:- This that the articles which were lotted on the
above date, time and place. Cash jewelry, watch etc were
recovered from the possession of you people near the Sailai
culvert at 11:00 on 29-10-08 under Ramgarh Police Station,
District Firozabad, even after knowing that these items
were looted you had kept these with you. This way, you
committed an offence which is a punishable offence u/s 412
of the IPC and is in cognizance of this Court.
Third:- This that on the above date, time and place of
occurrence, you committed heinous crimes like loot and
murder on people of Scheduled Caste. This way, you
committed such an offence which is punishable u/s 3(2)5 of
the S.C.S.T. Act and is in cognizance of this Court.
I, hereby direct you be tried by this Court under the
above charges.”
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They were tried by the Trial Court in Sessions Trial No.234 of 2008
and Nos.235-239 of 2008 and No.504 of 2011.
15. The Prosecution examined fifteen witnesses and produced the
relevant material in support of its case, while two witnesses were examined
on behalf of the Defence.
16. The relevant portions from the testimony of some of the
Prosecution witnesses were as under:-
A. PW1 Kotwal Singh, brother in law of Smt. Nirdosh Devi,
stated in his examination in chief:-
“My brother had become martyr in year 2005. His
family consisted of wife Smt. Nirdosh Devi, daughter
Ku. Poonam and 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 and Anshul was committed by
miscreants in their house only. Sister-in-law was
murdered by slitting throat, while others were
murdered by throttling (strangulating), younger
nephew Ujjwal was 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 four dead-bodies were lying
separately in different rooms. House-hold articles,
box, Almirah and suitcase etc. were lying broken and
its articles were scattered. Miscreants had looted cash
and jewellery. The articles looted were in my
knowledge and I had seen. I had submitted a written
report of this incident to Police Station.”
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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 said person had come to me
in the morning at 6.45 am. This person had come to
the house of my brother on foot; I do not know name
of the person whom my brother Satyapal had sent to
pass information. There were 4-6 more persons with
the said person whose names I do no know. I reached
the site of incident by running with these persons
only, all reached by running. We had reached the site
of incident within 5-7 minute. When I reached the
site of incident, at that time main door of the house
was open. Only my elder brother Satyapal was there
inside the house, none else from the family. Family
members from Nagau reached within an hour, they
had been informed by elder brother through phone.”
… … …
“I had gone to police station to give information on
the day of incident and thereafter, I did not go again
to police station. I wrote Exhibit Ka-1 by sitting on
Kharanja outside the incident. I, after writing Exhibit
3, submitted in the evening at about 7 O’clock. I had
taken advice of elder brother Dr. Satyapal in writing
it”
… … …
“Till today I do not know name and residence of the
milkman through whom I received information. The
fact of receiving information from my brother Dr.
Satyapal, is not written in Exhibit Ka-1. Milkman had
informed my brother. My brother Satyapal informed
me.”
B. PW2 Ompal Singh who lived in the same neighbourhood
stated in examination in chief:-
“…In the night of 27/28.10.2008 at about 11 P.M. and
Ramprakash were returning back from home from
work. House of Mulayam Singh is near house of
Nirdosh Devi. Near to it, red colour four wheeler
vehicle was parked. 4-5 people were sitting inside it.
Hari Om @ Hero, one of them, was standing near the
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vehicle and he was talking on phone. I asked Hari
Om, ‘brother why are you standing at this time’
whereupon Hari Om replied that I am talking to
Faujin Nirdosh Devi. Then we left for our home. I
knew Hari Om @ Hero because he had been tenant at
the place of Nirdosh Devi. In the same night, the
incident had taken place. I had received information
in the morning. I became sure that Hari Om @ Hero
and his accomplices committed murder of Nirdosh
Kumari and her three children and the miscreants
committed loot.”
This witness also proved recovery memo Ext.Ka-5 and
deposed that on 29.10.2008 at about 05.00 p.m., accused Hari Om
had taken out a chhuri/knife from the bricks lying near the southern
wall of the house of one Sikia.
Nothing was suggested to the witness in his cross
examination that Hari Om had not been the tenant of Smt. Nirdosh
Devi. In his cross examination conducted on 01.03.2011, the
witness stated:-
“On 28.10.08, when police came on the spot then I
was on the spot. Then, neither I had any conversation
with police nor made any attempt to talk to the police.
I did not tell to the police about the 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 any conversation with police and I did not make
any attempt to talk to the police. I had conversation
with the police at police station and it did not take
place on the spot.
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I had been in police station from 28.10.08 to
29.10.08. I had seen all the accused persons in police
station. I cannot say the name of any other persons
except Hari Om. Neither I had seen any person
talking on mobile near the vehicle at the spot on
28.10.08 nor did I have any conversation with the
person talking on mobile.”
C. PW3 Harpal Singh, witness in respect of Exhibits Ka-6 and
Ka-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 presence as specimen. On it, my signature
and the signature of Mukesh Kumar were taken. One
Diwanji was also present with Darogaji. Memo was
prepared on the spot. This witness has recognised
signature on Memo (Paper No.5A/2). On this,
Exhibit Ka 7 was marked.”
D. PW4 Shankarlal, milkman stated in his examination in
chief:-
“Family of late Fauzi Rajpal comprised of his wife, a
daughter and three sons. I knew everyone. The date
was 28th in the year 08. It was Deepawali festival. I
had gone to the house of Fauzi Rajpal Singh to deliver
the milk at about 6:45 AM.
I made a call at the entrance of their house. No one
responded. I knocked the door even then no one
responded. I pushed door whereupon door opened.
Then, (Ujjwal) small child of late Rajpal came to me
weeping from inside. Then I peeped inside the room
of the house and found wife and elder son of Fauzi
Rajpal lying dead on the cot. Blood was lying there.
A girl and a boy were lying dead in the other room.
On seeing them, I got perturbed. I took Ujjwal in my
arms and informed Dr. Satyapal who is brother of
Fauzi. Then I returned to the place of incident with
him. By then, crowd had gathered. Thereafter, I had
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gone to deliver the milk 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. I did not have meeting, therefore, I did not give
any information to Kotwal Singh.
… … …
I took Ujjawal on my lap and went to Satya Pal.
He had a ligature mark of marpeet on his neck.
Neither I told this fact to CO nor he asked me. I’m
telling this fact for the first time in the court.
… … …
Satya Pal did not go to PS to give information
in my presence. I had given information about the
incident to Satya Pal. Satya Pal had returned to the
spot with me. Even them, I did not have any meeting
with Kotwal Singh.
… … …
…I could not see the cloth of Faujin because she was
inside the 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. Her face was also
visible. She was lying on the ground. Blood was
oozing out. Blood had not dried up. I had seen the
body of fauzin and her daughter. The blood was
oozing out from their bodies. They had not dried.”
E. PW5 Ujjwal, the youngest child of Smt. Nirdosh Devi, was
of five years of age when the incident had occurred and about eight
years of age when he was examined in Court. In his examinationin-chief, the witness stated:-
“It was Deepawali at the time of incident. The
incident took place in the night. I was sleeping at my
house. The phone of my mother rang on which my
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mother went to open the door. Thereafter, on opening
the gate, Hari Om uncle and 5 other persons came
inside the house. 5 uncle (persons) sat on the takht
and Hari Om uncle sat on the cot. At that time, I was
awake. Mother asked them for tea and water but these
persons did not take tea. My sister Poonam came with
6 glasses of water and offered them water. Hari Om
uncle demanded the key of almirah from my mother.
I already knew Hari Om because he had been tenant
at my house in the past.
My mother did not give the key when it was
demanded by Hari Om. Then, Hari Om caught hold
of the neck of my mother. 2 persons among the
persons accompanying Hari Om held the hands and
legs of my mother and Hari Om uncle cut the neck of
my mother with iron knife.
One of the persons accompanying Hari Om caught
the neck of my sister and killed my sister Poonam.
One uncle pressed the neck of my brother Ashish.
Thereafter, one uncle pressed the neck of my other
brother Anshul. Then, Hari Om uncle and other 5
persons accompanying him i.e. total 6 persons looted
the articles of my house and went. Hari Om uncle
also pressed my neck and threw but I remained lying
silently. On identifying Hari Om present in the court,
stated that accused Hari Om is present in the court
today.
On looking at accused persons present in the court,
said that 5 other persons apart from Hari Om were
involved in the incident. Today, they are present in
the court.”
… … …
“On next day of incident, in the morning, milkman
came and milkman uncle pushed the door and gate
opened. On the opening of gate, I narrated the entire
facts to the milkman uncle.”
In his cross examination, the witness stated:-
“…Witness was read over the statement u/s 161 CrPC
with the help of ADGC and Shri Maheshwari,
Counsel for the complainant. Then, the witness stated
that in the morning, milkman uncle came. He pushed
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the door and opened the door. I had got this fact
recorded to the police in my statement that I went to
him and narrated entire facts. I cannot state the reason
as to why it was not recorded.”
… … …
“Darogaji has recorded this fact incorrect in my
statement that in the morning, after rising of the Sun,
my neighbours took me out from the house. Then I
saw that my uncle Doctor Saab and many persons
with him had come to the house. I cannot say as to
how this fact got recorded.”
… … …
“When I reached the house of my Tau then my uncle
Kotwal also reached there and I narrated the entire
incident of the night to Tau and Uncle and also told
that Hari Om uncle and 5 other have committed the
incident and also told that I witnessed the incident.
After narrating entire facts to Tau and uncle, I went to
my house with Milkman uncle and Tau and when
police came after 5 minutes, in the morning, police
came. Then, they were told that Hari Om and 5 uncles
came in the night. They committed the incident. I
have witnessed the incident. Told the incident 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 evening and police had asked in my
presence as to where mother was lying? Where was
brother lying, where was sister lying and after
throttling, where were (they) thrown. Police did not
ask the milkman, my uncle Kotwal and elder uncle
Satyapal. I had told all these facts to the police.”
… … …
“I was sleeping on the takht. I had told this fact to the
police. If Darogaji did not record this fact in my
statement then I could not state the reason. I had told
this fact to Darogaji cutting the neck with iron knife.
If the fact of iron knife is not recorded in my
statement then I cannot state the reason.
I had told police that two uncles (persons) were
holding the hand and legs of my mother. I cannot
21
state the reasons as to why this fact is not recorded in
my statement.
I had told Darogaji in my statement as such that
one uncle was pressing the neck of my sister. One
uncle pressed the neck of Ashish. This fact is also not
recorded separately in my statement then I cannot
state the reason. I had also told Darogaji that Hari Om
had pressed my neck and threw in the other room. If
this fact that Hari Om pressed my neck and threw in
other room is not recorded, then I cannot state its
reason. Hari Om demanded key from my mother. If
it is not recorded then I cannot state the reason.
When the neck of my mother was cut, mother
had been overpowered by them. Then, we brothers
and sisters screamed loudly. The house of Hori Lal
Darogaji does not exist opposite to my house. Even
there is no house of Ram Prakash. No one came on
our hue and cry. Hari Om tuned the TV in full
volume. I had told this fact about the screaming of us
(siblings) loudly and Hari Om opening TV and tuning
with full volume to my uncle Kotwal Singh and my
elder uncle Satyapal as well as to the police. These
facts were also told to milkman. If this fact is 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 sister Poonam was throttled then at that
time she was lying in her room. When the neck of my
sister was pressed then I was in my mother’s room.
The neck of Anshul was pressed and the neck of
Poonam was pressed. After pressing the neck
(illegible), I was thrown on the takht in my mother’s
room and I was sleeping on the takht itself.
When the accused persons went then I had
gone to see my sister and brother. I had told this fact
to Darogaji that after the departure of accused
persons, I had gone to see my brother and sister. If
this fact is not recorded in my statement then I cannot
state the reason.
I had voluntarily gone to see my brother and
sister. I was not sent by anyone. I was not thrown in
the room of my brother and sister. I was thrown on
the takht itself. This was the same room where I was
22
sleeping. It was not other room. After seeing brother
and sister, I again sat on the takht and began weeping.
Thereafter, I slept. When the milkman pushed the
door then I got up.”
F. PW7 Dr. R.A. Sharma, who had conduced Post Mortem as
stated hereinabove, proved the concerned Reports.
In his cross examination in relation to questions about the
injury on the body of Smt. Nirdosh Devi, the witness stated:-
“This fact is correct that injury of neck was clean cut
and in a single cut and it was more on left side and
less on right side. It is possible that the time when the
injury was caused, at that time, if the person had been
lying. Left portion of the neck would be above and
right part would be under where it was cut. On that
side, it is possible to cause injury from heavy sharpedged weapon. Such type of injury is possible if
inflicted on the person who is sleeping or
unconscious.”
G. PW9 SI Ram Prasad who conducted inquest on the dead body
of Smt. Nirdosh Devi, stated in his cross examination: -
“It is correct that at the time of Panchnama, four
bangles in each hand of deceased were unbroken. It
is correct that no broken bangle was found near
deceased.”
H. PW10 SO Gautam, who had conducted the investigation at
the initial state, stated in his examination-in-chief:-
“On 29.10.08. Parcha No.2 was prepared in which
arrest of 5 accused persons namely Sanjay @ Sonu,
Rizwan, Hasin Khan, Hari Om @ Hero and Saurabh
@ Sanju and the statement of eye-witness Ujjwal and
copy of memo of Arrest of accused persons, recovery
of illegal weapons and cartridges and the case
properties of Crime No.367/08 were mentioned and
23
Tavera vehicle 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 the statement of Ompal Singh s/o Hukum
Singh, Om Prakash s/o Leeladhar and the name of
Hari Om @ Hero is mentioned in those statements.
Besides this, in the statement of Raju s/o Ram Kishan
also, name of Hari Om @ Hero is mentioned and the
fact that 4-5 boys were sitting in Tavera vehicle is
mentioned in 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. This Parcha was written after the
alleged recovery. It is incorrect to say that some foul
play has been done.”
… … …
“It is also correct to say that on 28.10.08, neither any
search for milkman was made nor his name and
address came into the light till the accused persons
were arrested. Whereas apart from milkman, there
was no other witness to give information to the
complainant of the case.”
… … …
“It is correct that it is not mentioned in FIR that child
Ujjwal was left alive and he was the eye-witnesses.
In site-map (Exhibit Ka-20), presence of child Ujjwal
at the time of incident is not mentioned. In the
statement u/s 161 Cr.P.C. of child Ujjwal, I had
recorded that accused persons pressed the neck of
Ujjwal but no medical examination of child Ujjwal
has been got conducted in this regard as to whether
there is any pressing mark on the neck or not.”
… … …
“In my investigation, I did not find any quilt lying at
the place of incident on the dead-bodies of Smt.
Nirdosh and Kumari Poonam.”
24
I. PW11 Dr. B. K. Singh, Circle Officer stated in his
examination-in-chief:-
“On 24.11.08, I recorded the statement of
complainant Kotwal Singh, 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
concerned with the alleged loot were stated to have
been recovered, whether said ornament were of gold
and silver, no such examination was got conducted
from the Forensic Science Laboratory in this regard.
Recovered alleged looted article had not been got
identified by Ujjwal (age 7 years).”
… … …
“I had perused record and statements written by
previous Investigating Officer. I did not enquire
Ujjwal, neither statement of Ujjwal was verified by
previous Investigating Officer after reading over, nor
I met with Ujjwal during investigation. I had read
statement of Ujjwal written by G. P. Gautam
(previous I.O.).”
… … …
“Owner of Tavera vehicle has not been identified in
the investigation. I cannot say as to whether accused
in Tavera vehicle were its owner or not.”
… … …
“Witness Satyapal had also given statement that after
receiving information, he at first reached the place of
incident along with Kotwal Singh.
Statement of witness Shankar Lal was recorded
26 days after the incident. He was the same Shankar
Lal who had informed the Complainant. After
informing, he stated to have gone 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. Nirdosh Devi at
25
any time. Ms. Pratibha, Junior clerk working in Road Transport Office of
District Firozabad was examined as DW2 who stated that as per official
record, the owner of Tavera vehicle bearing No.UP83J7948, at the time the
incident had occurred, was one Sunil Kumar s/o Om Prakash Aggarwal.
18. The Trial Court by its judgment dated 06.07.2015 accepted the case
of prosecution against all six accused in so far as the offence punishable
under Section 396 of the IPC was concerned. It, however, acquitted all the
accused of the other offences with which they were charged. It was
observed that no disclosure statement of the accused Hari Om in relation to
recovery of knife was recorded, and as such the requirement of Section 27
of the Indian Evidence Act (“the Act”, for short) were not satisfied,
however, the recovery could still be admissible under Section 8 of the Act.
It was also observed that there were certain omissions in the statement of
Ujjawal recorded during investigation which were brought out in his cross
examination, but those omissions were not enough to reject his evidence.
By its order dated 13.07.015, sentences as quoted in paragraph 1
hereinabove were imposed by the Trial Court.
19. All six convicted accused preferred criminal appeals as stated
earlier challenging their convictions and sentences and so also Reference
26
No.8 of 2015 was made to the High Court for confirmation of the death
sentence awarded to the accused Hari Om.
The High Court by its judgment and order presently under appeal
affirmed the conviction and sentence of the accused Hari Om, Sanjay @
Sonu, Saurabh @ Sanju and acquitted the other three accused named
Haseen Khan, Rijwan and Rafique @ Bhaiye of the charges levelled against
them. The reason for their acquittal was:-
“As far as the accused-appellants Haseen Khan,
Rijwan and Bhaiye are concerned, they were neither named
nor the recovery from them, was proved beyond reasonable
doubt, hence, the same was disbelieved and they were
acquitted under Section 412 IPC and their fingerprints were
also, did not tally with the disputed fingerprints collected
from the spot. They were also not named by witness Ujjwal
or any other witnesses. According to evidence against
them, during investigation there was recovery and first time
they were identified before the court by the witness Ujjwal
along with other accused. It is also clear from the record
that the accused-appellants appeared before the trial court
on previous dates and on subsequent date, witness Ujjawal
identified them. Hence, there was sufficient time and
opportunity to identify them. No identification parade took
place in the present case. The incident is of the year 2008
and after about three years they were identified by child
witness Ujjawal first time before the court, hence, this
evidence is doubtful. Considering the entire facts and
circumstances, including the identification for the first time
before the court, it is clear that the prosecution failed to
prove the case beyond doubt against the appellants Haseen
Khan, Rijwan and Bhaiye alias Farid alias Rafique and they
are entitled for acquittal.”
27
20. In these appeals Mr. B. H. Marlapalle, learned Senior Advocate
appeared as Amicus Curiae on behalf of the accused. His principal
submissions were:-
a) In the face of glaring inconsistencies in the version given by
PW5 Ujjawal and in the face of record as it stood, it would be
extremely hazardous to accept the testimony of PW5 Ujjwal and
make it the basis of conviction of accused Hari Om.
b) There was no link evidence suggesting that the fingerprints
were correctly lifted from the house of the deceased, and were duly
preserved before sending them for fingerprints expert’s opinion.
c) The only material against accused Sanjay @ Sonu and
Saurabh @ Sanju was the fact that their sample fingerprints tallied
with those lifted from the house of the deceased. In the absence of
any substantive evidence, this fact alone would be insufficient to
sustain their conviction and sentence. Reliance was placed on the
decision of this Court in Musheer Khan alias Badshah Khan and
another vs. State of Madhya Pradesh.
6
d) Out of six named accused charged of having committed the
offence of dacoity, three accused having being acquitted, whose
acquittal was not challenged, the remaining three accused
6
(2010) 2 SCC 748
28
could not be convicted under Section 396 IPC. Reliance was placed
on the decisions of this Court in Ram Shankar Singh and Others
vs. State of Uttar Pradesh7
and Saktu and Another vs. State of
Uttar Pradesh8
.
21. Ms. Aishwarya Bhati, learned Additional Solicitor General
appearing for the State, on the other hand, submitted that the testimony of
PW5 Ujjwal was completely worthy of reliance and that even going by the
rule of prudence, version given by PW5 Ujjwal was fully corroborated on
material particulars. She relied upon the decisions of this Court in
Suryanarayana vs. State of Karnataka9
, State of Uttar Pradesh vs.
Krishna Master and Others10 and Manmeet Singh alias Goldie vs. State
of Punjab11
.
22. At the outset, we must note the perspective from which the evidence
of a child witness is to be considered. The caution expressed by this Court
in Suryanarayana9
that “corroboration of the testimony of a child witness
is not a rule but a measure of caution and prudence” is a well-accepted
7
AIR (1956) SC 441
8
(1973) 1 SCC 202
9
(2001) 9 SCC 129
10
(2010) 12 SCC 324
11 (2015) 7 SCC 167
29
principle. While applying said principle to the facts of that case, this Court
in Suryanarayana9 observed:-
“5. Admittedly, Bhavya (PW 2), who at the time of
occurrence was about four years of age, is the only solitary
eyewitness who was rightly not given the oath. The time
and place of the occurrence and the attending circumstances
of the case suggest no possibility of there being any other
person as an eyewitness. The evidence of the child witness
cannot be rejected per se, but the court, as a rule of
prudence, is required to consider such evidence with close
scrutiny and only on being convinced about the quality of
the statements and its reliability, base conviction by
accepting the statement of the child witness. The evidence
of PW 2 cannot be discarded only on the ground of her
being of tender age. The fact of PW 2 being a child witness
would require the court to scrutinise her evidence with care
and caution. If she is shown to have stood the test of crossexamination and there is no infirmity in her evidence, the
prosecution can rightly claim a conviction based upon her
testimony alone. Corroboration of the testimony of a child
witness is not a rule but a measure of caution and prudence.
Some discrepancies in the statement of a child witness
cannot be made the basis for discarding the testimony.
Discrepancies in the deposition, if not in material
particulars, would lend credence to the testimony of a child
witness who, under the normal circumstances, would like to
mix-up what the witness saw with what he or she is likely
to imagine to have seen. While appreciating the evidence of
the child witness, the courts are required to rule out the
possibility of the child being tutored. In the absence of any
allegation regarding tutoring or using the child witness for
ulterior purposes of the prosecution, the courts have no
option but to rely upon the confidence inspiring testimony
of such witness for the purposes of holding the accused
guilty or not.
6. This Court in Panchhi v. State of U.P.12 held that the
evidence of the child witness must be evaluated more
carefully and with greater circumspection because a child is
susceptible to be swayed by what others tell him and thus
an easy prey to tutoring. The evidence of the child witness
must find adequate corroboration before it is relied upon, as
the rule of corroboration is of practical wisdom than of law
12
(1998) 7 SCC 177 : 1998 SCC (Cri) 1561
30
(vide Prakash v. State of M.P.13; Baby Kandayanathil v.
State of Kerala14; Raja Ram Yadav v. State of Bihar15;
Dattu Ramrao Sakhare v. State of Maharashtra16).
7. To the same effect is the judgment in State of U.P. v.
Ashok Dixit17
.
8. In this case Bhavya (PW 2) when appeared before the
trial court was of 6 years of age. After questioning the
witness, the Sessions Judge found, “though the girl is 6
years old she is active and she understands everything”.
Without administering the oath to 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 is Suryanarayana. 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 aunt Saroja and myself went
to the lake to wash the clothes and to take bath.
On that day, my uncle Suryanarayana sitting in
the court pierced with a knife the stomach and
neck of my ammayi. Hence she suffered injuries
and her entire body covered with blood. My
ammayi while running after being injured, fell
down, I screamed. Immediately I ran and told my
father and mother that uncle killed the aunt. If
the knife is shown I can identify (a white cloth
bag sealed, was opened). I have seen the knife
now. With the same knife that day my uncle
pierced my ammayi (this was marked as Ext. P01) on that day. Police asked me as to what
happened, I have told everything to the police.”
9. In her cross-examination the witness stated that before
the date of occurrence the deceased was living with her
(witness) parents. At the time of occurrence the witness
used to go to aanganwadi school. The witness denied the
suggestion that she had not gone with the deceased to wash
13
(1992) 4 SCC 225 : 1992 SCC (Cri) 853
14
1993 Supp (3) SCC 667 : 1993 SCC (Cri) 1084
15
(1996) 9 SCC 287 : 1996 SCC (Cri) 1004
16
(1997) 5 SCC 341 : 1997 SCC (Cri) 685
17 (2000) 3 SCC 70 : 2000 SCC (Cri) 579
31
the clothes. Nothing favouring the defence could be
extracted out of her in the cross-examination. She denied
the suggestion that “my uncle did not pierce my aunt with
the knife. It is not correct that I have not seen the knife in
the hands of my uncle”. The trial court as well as the High
Court accepted her testimony as no inherent defect was
pointed out by the defence. We also find no reason to take
a contrary view. The mere fact that her mother had told that
she did not know any other language except Malyalam and
that the words spoken to by her were not in that language
cannot be used as a ground to reject her testimony. The
child and her parents conversed in Malyalam language at
their residence which was explained to the investigating
officer in the language which was understood by him. There
is no ground of doubting the veracity of the testimony of
this child witness as we find that her name is mentioned in
the FIR which is proved to have been recorded immediately
after the occurrence. P.H. Krishnappa, the Tahsildar who
prepared the inquest report is also proved to have recorded
the statement of this child witness, wherein, she is shown to
have made similar deposition. Otherwise also there is
sufficient corroboration on record to rule out the possibility
of PW 2 being tutored or used for ulterior purposes by some
alleged interested persons. In the absence of any inherent
defect we do not find any substance in the plea to reject the
testimony of this child witness. The statement of PW 2
shows that the deceased and the appellant were living
together as husband and wife and she used to address them
as uncle and aunt. Her testimony to the effect of the
deceased living with PW 1 is sufficiently corroborated by
the other evidence led in the case. The factum of the
deceased having received stabbed wound with a knife is
proved by the medical evidence. The recovery of the knife
at the instance of the appellant, in consequence of his
disclosure statement, leaves no doubt to believe her
statement. The place of occurrence being near the water
tank has not been seriously disputed. The report received
from FSL as per Exhibit P-15 shows that blouse (MO 2),
towel (MO 3) and the bangle pieces (MO 4) of the deceased
and the knife (MO 1) which was used in the commission of
the crime, the towel (MO 7), lungi (MO 6) and shirt (MO
5) of the appellant were found to be stained with blood. Dr
Ram Dass (PW 12) has opined that the injuries found on the
dead body of the deceased could be caused with a weapon
like MO 1.”
(emphasis supplied)
32
23. We may now consider the evidence of PW5 Ujjwal in the backdrop
of the principles discernible from the decisions of this Court as stated
above.
(A) The points on which the testimony of PW5 Ujjwal gets
corroborated by other pieces of material or evidence on record are:
i) According to him, a call was received on mobile of his
mother, whereafter she opened the door and let the accused in.
The mobile of his mother bearing number 9411926017
definitely received a call at about 9.27 p.m. from a mobile bearing
number 9758835941. The call lasted for 20 seconds.
However, there is nothing on record that the concerned
mobile was that of accused Hari Om, or any of the accused. The
record does not throw any light, nor any efforts were made by the
investigating machinery to trace the name of the person holding this
mobile phone number.
However, there is some corroboration available from the
testimony of PW2 Ompal Singh that on 28.10.2008 he had found
Hari Om standing near a vehicle in the vicinity of the house of the
deceased; and upon being asked, accused Hari Om had replied that
he was calling Smt. Nirdosh Devi. However, according to PW2
33
Ompal Singh, 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
offered to accused Hari Om and his associates.
There were glasses which were found in the kitchen which
fact certainly corroborates the version given by PW5 Ujjwal.
iii) It was stated that his mother was overpowered by two of the
accomplices and her throat was slit by accused Hari Om.
Thereafter, his three siblings were throttled to death, and an attempt
was also made to throttle PW5 Ujjwal.
The manner in which his mother and siblings were done to
death is corroborated by the medical evidence on record.
However, if the mother was being overpowered, there were
no signs of struggle and none of her bangles was broken. Further,
if her throat was slit and her left side blood vessels of the neck and
trachea were cut, the blood would have instantaneously gushed out.
But, there were no blood spots anywhere else except below the cot
where the body of Smt. Nirdosh Devi was found lying in supine
condition.
34
One more striking feature of the matter is that there was no
medical evidence either in the form of any documents, pictures or
even a statement of any medical professional that PW5 Ujjwal was
given medical attention as a result of attempts of throttling.
iv) The location of dead bodies, as mentioned by him, is
undoubtedly corroborated by the site map, inquest panchanama and
other material.
(B) Having dealt with the features which get corroborated to some
extent, we will now deal with certain inconsistencies or infirmities which
are evident from the record.
i) According to PW5 Ujjwal, in the morning of 29.10.2008, the
first person to see him was PW4 Shankar Lal (milkman), who took
him to the house of his doctor uncle (Dr. Satyapal Singh).
However, according to his statement recorded during
investigation, he was taken to the house of his uncle by the
neighbours.
ii) According to his court statement, after reaching the house of
said uncle, he had narrated the entire incident to his other uncle
PW1 Kotwal Singh and said Dr. Satyapal Singh and told them that
35
Hari Om and his associates had committed the murders and also
told them that he had witnessed the incident.
However, the FIR lodged by PW1 Kotwal Singh spoke
otherwise. According to the reporting, the accused were unknown
persons. The reporting also did not disclose that PW5 Ujjwal had
survived, despite being attempted to be murdered, and that he had
witnessed the incident. As a matter of fact the FIR did not make
any reference to PW5 Ujjwal.
iii) According to PW5 Ujjwal, he had narrated the entire incident
to PW4 Shankar Lal (milkman) and Darogaji.
On this score also, the record spoke otherwise, according to
which, till 29.10.2008 the names of Hari Om and his associates had
not surfaced as suspects at all. The initial registration of crime was
against unknown persons.
iv) There are other inconsistencies and omissions with regard to
the manner in which his siblings were done to death.
(C) Apart from the aspects referred to hereinabove touching upon the
comparison of the version given in court, as against his statement recorded
36
during investigation, certain other features are available from the record
which must be noted at this stage.
i) If PW5 Ujjwal was attempted to be murdered and as
disclosed by PW4 Shankar Lal (milkman) he had seen a ligature
mark on the neck of PW5 Ujjwal, there was nothing on record
supporting this fact.
ii) Parcha No.2 which was part of papers pertaining to
investigation, did make a reference to the statement of PW5 Ujjwal
recorded during investigation. However, as stated by PW10 S.O.
Gautam, the said Parcha was not in his handwriting, though, he was
incharge of investigation. He could not give any answer as to who
had written that Parcha.
iii) If according to the Prosecution, PW4 Shankar Lal was the
first person to reach the place of occurrence, his statement was
recorded 26 days after the incident. The response given by the
concerned Investigating Officer shows that no attempts were made
to trace said Shankar Lal.
iv) The versions given by PW1 Kotwal Singh and PW4 Shankar
Lal 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
37
them about the entire incident. As a matter of fact, PW1 Kotwal
Singh went to the extent of asserting that it was through Dr.
Satyapal Singh that he came to know about the incident.
v) Thus, the version given by PW5 Ujjwal that he had narrated
the entire incident to PW1 Kotwal Singh, PW4 Shankar Lal and
Darogaji was not supported by any of them. Moreover, the
other person namely Dr. Satyapal Singh to whom similar narration
was given by PW5 Ujjwal, was not even examined by the
prosecution.
vi) The charge-sheet did indicate Dr. Satyapal Singh to be one
of the relevant witnesses, and yet he was not examined. On the
other hand, the charge-sheet did not even speak of PW5 Ujjwal to
be a relevant and material witness.
24. Having culled out the essential features emerging from the record,
we must state that we find it difficult to place reliance upon the testimony
of PW5 Ujjwal and in our view, the said version can not be made the basis
of conviction of Hari Om.
It is true that the assertion made by him that Hari Om used to be a
tenant in their house was supported by PW2 Ompal Singh. Even if we
38
accept that accused Hari Om was a known face to PW5 Ujjwal, and the fact
that the incident occurred inside the house where PW5 Ujjwal would
naturally be available, but on the issue whether he had witnessed the
incident, the glaring inconsistencies on record cannot be discarded. In
Suryanarayana9
after setting out the guiding principlesfor appreciation and
consideration of the evidence of a child witness, this Court had found in
paragraph 9, that there were no doubts at all with regard to the veracity to
the testimony of the child witness, nor were there any inherent defects. The
name of the child witness figured in that case in the FIR and Inquest; and
right from the initial stages, her presence was 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 of Chhattisgarh18
, a
bench of three Judges of this Court, while considering the matter in the light
of the fact that the child witness had not disclosed about the accused in the
first instance, observed:-
“…..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 while disclosing about the incident for the
first time. This is reflected from the FIR which has been
registered against unknown persons. In such circumstances,
it is risky to rely on the uncorroborated identification of the
appellants at the instance of PW 8, who has not disclosed
18 (2019) 4 SCC 522
39
about the appellants at the first instance before PW 1
Badridas.”
Similarly, in Radhey Shyam vs. State of Rajasthan19, the evidence
of a child witness was not found to be inspiring confidence because of
inconsistencies in the version of the witness, as well as because of the
absence of corroboration from the other prosecution witnesses.
26. In the circumstances, we do not find it safe to rely on the version
given by the child witness in the instant case, who was about five years of
age when the incident had occurred.
27. There are other features from the evidence touching upon the
involvement of accused Hari Om such as:-
(I) A chhuri or knife was said to have been recovered upon being
pointed by accused Hari Om. In the absence of any memorandum,
the trial court rejected the theory that such recovery would be
admissible under Section 27 of the Act. It was however observed
that such recovery would be admissible under Section 8 of the Act.
Though the conclusion arrived at by the Trial Court is not
inconsistent with some of the decisions rendered by this Court,
19 (2014) 5 SCC 389
40
the evidence in that behalf, by itself may not be enough to sustain
the finding of guilt. It will be one of the factors to be taken into
account in the ultimate analysis.
(II) Accused Hari Om was seen in the neighbourhood, or near the
house of Smt. Nirdosh Devi next to a red Tavera vehicle by PW2
Ompal Singh and one Ram Prakash. During investigation,
statement of one Raju, owner of the house where accused Hari Om
resided, was also recorded. Ram Prakash and Raju were not
examined during trial and, as such, apart from the statement of PW2
Ompal Singh, we do not have any material to support the version
that accused Hari Om was either in the neighbourhood of Smt.
Nirdosh Devi, or was moving about in a red Tavera vehicle on
28.10.2008. If the names of accused Hari Om and his associates
were not known as suspects to the police on 28.10.2008, which is
the case of the prosecution, the link in that behalf has to be either
through PW2 Ompal Singh or through Ram Prakash or Raju. When
latter two were not examined at all, we have to rely only on the
testimony of PW2 Ompal Singh. His cross-examination reveals
that he made no attempts to talk to the police on 28.10.2008, though
he asserted in his examination-in-chief that in the morning of
41
28.10.2008 he was sure that the culprits were accused Hari Om and
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 match
with any of the fingerprints taken from the house of the deceased.
(IV) With the acquittal of all the accused in respect of offences
punishable under Section 412 IPC and under the Arms Act, there is
no other material pointing towards the involvement of accused Hari
Om.
28. Thus, out of three features which could possibly be put against
accused Hari Om, the version given by the child witness being unworthy to
be relied upon, we are left with the evidence of recovery of a knife, and the
evidence of PW2 that he had spotted accused Hari Om near a red Tavera
vehicle in the neighbourhood. The prosecution did not attempt to prove that
the call received by Smt. Nirdosh Devi could be associated with accused
Hari Om. Secondly, the time given by PW2 Ompal Singh again did not
match with the time of the call received by Smt. Nirdosh Devi. Further, the
evidence of PW2 Ompal Singh also contains inherent inconsistencies. In
the premises, we do not find the material on record sufficient to record
42
conviction of accused Hari Om for the offence under Section 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 are
concerned, apart from the material that their sample fingerprints matched
with those lifted from the house of the deceased, nothing was brought on
record to suggest or suspect the involvement of said two accused. They
were acquitted of the charges under Section 412 of IPC and under the Arms
Act. Whether their liability in the instant case can be fastened with the help
of the fingerprint expert’s report is the question.
30. According to the record, Exhibit Ka 7 was the Panchnama testifying
the lifting of the fingerprints from the house of the deceased by Constable
Dharmender Singh. If the fingerprints were picked from the glasses there
is nothing to indicate what method was applied to lift the fingerprints from
the glasses allegedly used by the accused when they were offered water.
What the record indicates is that some photographs were sent to the office
of the Director, Fingerprint Bureau, Lucknow and nothing more. It does
not show the procedure adopted for taking such photographs, and
whether such method is a trusted and tested one. The concerned person was
43
not examined, who could have thrown light on these issues. The record also
does not show whether those glasses by themselves were made available for
appropriate analysis. There is, thus, no clarity in the process adopted by the
investigating machinery.
31. In Prakash vs. State of Karnataka20, the evidence concerning
fingerprints was examined in the light of the procedure prescribed under the
relevant manual and it was observed:-
“33. Our attention was drawn to the Karnataka Police
Manual and it appears that Nanaiah followed the guidelines
laid down therein and perhaps acted in an overly cautious
manner. Guideline 1543 provides as follows:
“1543. The opinion of the fingerprint expert is of
paramount importance in the investigation of
various crimes. The following instructions should
be followed regarding chance finger and
footprints and their developments, preservation of
the scene, method of packing and other matters:”
34. Guideline 1544 in the Manual contains various
provisions and clause (iv) and clause (v) are relevant for our
purposes. They read as follows:
“1544. (i)-(iii) * * *
(iv) If latent prints are found on portable articles
they should be seized under a detailed
panchnama duly packed and labelled and sent
to the Fingerprint Bureau with a police officer
with instructions regarding the care of the
package during the journey.
(v) In sending the articles containing latent
prints to the Bureau, proper attention must be
20(2014) 12 SCC 133
44
given to their package. The following essential
points should be borne in mind:
• It should be ensured that no
portion of the article where prints
may be found should get into
contact with anything else and
• The articles should be securely
packed in a suitable container.”
Clause (iv) was clearly not followed when Nanaiah
took the plastic cover along with him and this is an
extremely serious lapse. However, we give him the
benefit of doubt and assume that it is perhaps with
clause (v) in mind that Nanaiah took the plastic 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 officer did nothing about it), the case of the
prosecution does not get strengthened even if a valid
procedure was followed, since there is nothing on record to
show that the “admitted” fingerprints on Ext. P-20 were
those of Prakash which could be compared with the
fingerprints on Ext. P-18 and the enlarged photograph being
Ext. P-19.
36. Assuming that Ext. P-20 was a valid piece of evidence
validly obtained, there is no explanation why it was kept by
the investigating officer from 14-11-1990 till 9-1-1991
when it was received by Nanaiah. The Karnataka Police
Manual highlights the importance of keeping safe an article
containing fingerprints. In view of its importance, Nanaiah
did not trust anyone with the plastic cover bearing the
inscription “Canara Bank” (Ext. P-18) and carefully took it
along with him to avoid its getting damaged by getting into
contact with anything else. On the other hand, we have the
investigating officer keeping Ext. P-20 with him for almost
two months and in circumstances that seem unclear. We
cannot rule out the possibility of Ext. P-20 getting damaged
due to careless handling.
37. We are of the opinion that there is no fingerprint
evidence worth it linking Prakash to the murder of
Gangamma.”
45
32. The procedure detailed in the Karnataka Police Manual captures the
importance of development and preservation as well as the method of
packing and safe keeping. Such a procedure, if adopted, will not raise any
doubts. Secondly, in the aforesaid decision, the conduct of the Investigating
Officer in keeping the concerned material with him for almost 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 Dharmender Singh, and whether he was
adequately trained, or was an expert in lifting the fingerprints from material
such as glasses; nor was any evidence led detailing out the procedure
adopted by him. In the absence of any such material, it is extremely difficult
to rely on the report that the lifted fingerprints from the glasses matched
with the sample fingerprints of accused Sanjay @ Sonu and Saurabh @
Sanju.
33. In any case, apart from the fingerprints, there was nothing else on
record against these two accused. It was observed by this Court in Musheer
Khan alias Badshah Khan and another vs. State of Madhya Pradesh6
:
“34. It will be noticed that under the Evidence Act, the word
“admissibility” has very rarely been used. The emphasis is
on relevant facts. In a way relevancy and admissibility have
been virtually equated under the Evidence Act. But one
thing is clear that evidence of fingerprint expert is not
46
substantive evidence. Such evidence can only be used to
corroborate some items of substantive evidence which are
otherwise on record.”
34. In Hukam Singh vs. State of Rajasthan21
, the only circumstance
against the concerned accused pertained to his fingerprints on a mirror. That
circumstance by itself was not found to be sufficient by this Court to sustain
the finding of guilt under Section 302 IPC against the accused. It was
observed:-
“6. The last circumstance on which reliance was placed on
behalf of the prosecution was the presence of fingerprints
of the appellant on the mirror Ex. 1. We fail to see how this
circumstance can be regarded as necessarily implicating the
appellant in the commission of the murders. It was admitted
by Sujan Singh that the appellant was on visiting terms with
this family and it is, therefore, possible that during one of
his visits, the appellant might have touched the mirror Ex.
1 and left his fingerprints on it. It is also not altogether
unlikely that even when the appellant was in the hutment of
Sujan Singh for the purpose of committing the theft of
ornaments and other articles belonging to Sujan Singh after
the quadruple murders had been committed by some other
persons, he might have touched the 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 a circumstance
as would necessarily lead to the inference that the appellant
must have committed the murders of these four members of
Sujan Singh’s family.
7. It is now settled law that in case of circumstantial
evidence, all the incriminating facts and circumstances
should be fully established by cogent and reliable evidence
and the facts so established must be consistent with the guilt
of the accused and should not be capable of being explained
away on any other reasonable hypothesis than that of his
guilt. In short, the circumstantial evidence should
unmistakably point to one and one conclusion only that the
accused person and none other perpetrated the alleged
21 (1977) 2 SCC 99
47
crime. If the circumstances proved in a particular case are
not inconsistent with the innocence of the accused and if
they are susceptible of any rational explanation, no
conviction can lie. Judged from this standpoint, it is not
possible to affirm the conviction of the appellant for the
offence of murder of any one or more of Bhanwar Singh,
Roop Singh, Lad Kanwar and Inder Kanwar. The three
circumstances relied upon by the prosecution are not
incompatible with the innocence of the appellant insofar as
the murders of these four persons are concerned. They are
capable of being explained away on a hypothesis other than
that of guilt of the appellant. We may point out that in any
event the view taken by the Sessions Court that the
circumstances were not sufficient to found the conviction
of the appellant was a reasonable view and 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 to any Test
Identification. Apart from identification by PW5 Ujjwal in Court for the
first time, there is no other material to establish their presence. Thus, even
if we accept that fingerprints lifted from the house of the deceased could be
associated with the said two accused, that by itself, in the absence of any
substantive piece of evidence, cannot be made the basis of their conviction.
These accused are therefore entitled to the benefit of doubt.
36. Having come to the conclusion that all three appellants are entitled
to benefit of doubt, we need not go into the fourth submission advanced by
Mr. Marlapalle, learned Amicus Curiae.
48
37. In the premises, we accept the appeals preferred by accused Hari
Om, Sanjay @ Sonu and Saurabh @ Sanju. While setting aside the orders of
conviction and sentence recorded against them, we acquit them 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 sincere
efforts put in by Mr. B.H. Marlapalle, learned Amicus Curiae and for the
assistance rendered by him.
………………………J.
[Uday Umesh Lalit]
………………………J.
[Indu Malhotra]
………………………J.
[Krishna Murari]
New Delhi;
January 05, 2021.
