2021 Supreme(SC) 5

SUPREME COURT OF INDIA
UDAY UMESH LALIT, KRISHNA MURARI, INDU MALHOTRA, JJ.
Hari Om @ Hero – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal Nos. 1256 of 2017, 3, 4 of 2021, Special Leave Petition (Crl.) Nos. 9087, 9088 of 2017
Decided On : 05-01-2021

IMPORTANT POINTS
(1) Death sentence cannot be awarded on evidence of a child witness.
(2) Corroboration of testimony of a child witness is not a rule but a measure of caution and prudence.

Headnote:

(A) Criminal Law – Appreciation of evidence – Child witness – Evidence of child witness cannot be rejected per se, but court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about quality of statements and its reliability, base conviction by accepting statement of child witness – Corroboration of testimony of a child witness is not a rule but a measure of caution and prudence – Some discrepancies in statement of a child witness cannot be made basis for discarding the testimony – Evidence of 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. (Para 22)

(B) Indian Penal Code, 1860 – Sections 396 and 412 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(2)(v) – Arms Act, 1959 – Section 25 – Dacoity with murder – Death sentence and life imprisonment – Manner in which mother and siblings of child witness were done to death is corroborated by medical evidence on record – However, such doubts and defects are quite evident in present matter and it is difficult to place reliance upon testimony of child witness and said version cannot be made basis of conviction of appellant – It is not safe to rely on version given by child witness in instant case who was about five years of age when incident had occurred – If fingerprints were picked from glasses there is nothing to indicate what method was applied to lift fingerprints from glasses allegedly used by accused when they were offered water – What record indicates is that some photographs were sent to office of Director, Fingerprint Bureau, Lucknow and nothing more – It does not show procedure adopted for taking such photographs and whether such method is a trusted and tested one – Concerned person was not examined, who could have thrown light on these issues – Record also does not show whether those glasses by themselves were made available for appropriate analysis – There is no clarity in process adopted by investigating machinery – Apart from fingerprints, there was nothing else on record against these two accused – Accused are entitled to benefit of doubt – Appellants acquitted of all charges. (Paras 23, 24, 26, 30, 33, 35 and 37)

Facts of the Case:

Six accused persons, namely, Sanjay @ Sonu, Rijwan, Haseen Khan, Hari Om @ Hero, Saurabh @ Sanju, Rafique @ Bhaiye @ Fareed were tried for having committed offences punishable under Sections 396, 412 of IPC and under Section 3(2)(v) of the SC/ST Act. These six accused were also tried by the Trial Court for offences under Section 25 of 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. Death sentence having been awarded to accused Hari Om, the matter stood referred to the High Court 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. High Court (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. (c) accepted the Appeals of accused Haseen Khan, Rafique @ Bhaiye and Rijwan and acquitted them of charges levelled against them.

Findings of Court:

Name of 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.

Result : Appeals allowed.