This case discussed the recording of evidence and its veracity in the given circumstances, especially the evidence recorded by the Child witnesses.
Brief Facts of the Case
This case arises out of an incident that took place in the year 2008 in which Smt. Nirdosh Devi, aged 40, her niece Kumari Poonam aged 18, her Ashish aged 12 and, her nephew Anshul aged 10 were murdered.
There were six accused in this case, tried for committing offences punishable under Sections 396, 412 of IPC and under Section 3(2)(v) of the SC/ST Act. They were also tried by the Trial Court for offences under Section 25 of the Arms Act, 1959.
In the trial Court, all the six were acquitted of all the charges except under Section 396 of the IPC. All the six preferred criminal appeals challenging their conviction and sentences before the High Court.
The Allahabad High Court affirmed the death sentence awarded to the accused Hari Om. Further, the conviction and life sentence of the other two accused i.e., Sanjay @ Sonu, Saurabh @ Sanju was also affirmed. However, the three accused named Haseen Khan, Rijwan, and Rafique @ Bhaiye, were acquitted.
This appeal was filed challenging the convictions and sentences mentioned above.
Appellant’s Argument
The submissions were made by the Amicus Curiae on behalf of the accused. It was submitted that there were inconsistencies in the version given by PW5 Ujjawal, who is the five-year-old son of Smt. Nirdosh Devi and it would be extremely hazardous to accept the testimony of PW5 Ujjawal and make it the basis of conviction of the accused Hari Om.
There was no link in the evidence suggesting that the fingerprints were correctly lifted from the house of the deceased and preserved before sending them for fingerprint expert’s opinion.
The only material against the accused Sanjay and Saurabh 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 in the case of Musheer Khan alias Badshah Khan and another vs. State of Madhya Pradesh.
Out of the six accused charged with dacoity, three were acquitted, whose acquittal was not challenged, the three remaining accused could not be convicted under Section 396 IPC. Reliance was placed on the decision of this Court in Ram Shankar Singh and Others vs. State of Uttar Pradesh and Saktu and Another vs. State of Uttar Pradesh.
Respondent’s Argument
The Additional Solicitor General, appearing for the state submitted that the testimony of PW5 Ujjawal was completely worthy of reliance and that even going by the rule of prudence, the version is given by PW5 Ujjawal was fully corroborated on material particulars. The Counsel relied upon the decision of this Court in Suryanarayana vs. the State of Karnataka, State of Uttar Pradesh vs. Krishna Master and Others and Manmeet Singh alias Goldie vs. the State of Punjab.
Observation by the Court
In the Suryanarayana case, it was expressed that “corroboration of the testimony of a Child witness is not a rule but a measure of caution and prudence”, is a well-accepted principle. In the backdrop of the principles discernible from the decision of the Court, the evidence of PW5 Ujjawal was considered.
There were certain points where the testimony of PW5 Ujjawal got corroborated by other pieces of material or evidence on record, however, there also existed certain inconsistencies or infirmities which were evident on record.
After considering the essential features emerging from the record, the Court found it difficult to place reliance upon the testimony of PW5 Ujjawal and the said version cannot be made the basis of conviction of Hari Om.
In paragraph 9 of the judgment in the Suryanarayana case, the Court found that there were no doubts concerning the veracity of the testimony of the Child witnesses, nor were there any inherent defects. The name of the child witness figured in that case in the FIR and Inquest, right from the initial stages, thus no doubts could be entertained. However, such doubts and defects were quiet in the present matter.
In Radhey Shyam vs. the State of Rajasthan, the evidence of the 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. In the given circumstances, the Court did not find it safe to rely on the version given by the Child witness in the instant case, who just five years of age at the time of the incident.
The procedure detailed in the Karnataka Police Manual captures the importance of development and preservation as well as the method of packing and safekeeping. Such a procedure, if adopted, will not raise any doubts. However, in the present case, Constable Dharmendra Singh was not examined by the Prosecution. There exists nothing on record regarding the competence of said Dharmendra Singh in lifting and preserving the fingerprints.
In the absence of any such material, it is extremely difficult to reply to the report that lifted fingerprints from the glass matched with sample fingerprints of Sanjay and Saurabh. There was nothing else on record against them except the Fingerprints. In the Case of Musheer Khan alias Badshah Khan and another vs. State of Madhya Pradesh, it was observed that evidence of fingerprint expert is not substantive evidence. Such evidence can be used only to corroborate some items of substantive evidence.
In the case of Hukam Singh vs. the State of Rajasthan, as well, the Court observed that the mere circumstances against the accused about his fingerprints, by itself, was not found to be sufficient by this Court to sustain the finding of guilt under Section 302 IPC.
All the appellants were entitled to the benefit of the doubt.
The Decision of the Court
The appeals preferred by the three accused namely, Hari Om, Sanjay, and Saurabh were accepted. The order of conviction and sentence against them was also set aside, they were acquitted of all charges levelled against him.
Click here to read the judgment.
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