Hari Om @ Hero vs State of U.P.

2. The points on which the testimony of PW5 (a child witness) 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 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 the deceased-victim. However, according to PW2, 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. (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. 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 deceased-victim was found lying in supine condition. 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 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. [Para 23][78-D-H; 79-A-E]

3. There are certain inconsistencies or infirmities which are evident from the record - (i) According to PW5, in the morning of 29.10.2008, the first person to see him was PW4, who took him to the house of his doctor uncle. 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 and said uncle and told them that 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 spoke otherwise. According to the reporting, the accused were unknown persons. The reporting also did not disclose that PW5 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. (iii) according to PW5, he had narrated the entire incident to PW4 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. [Para 23][79-F-H; 80-A-C]

4. As against statement of PW5 recorded during investigation, certain other features are available from the record which must be noted-(i) if PW5 was attempted to be murdered and as disclosed by PW4 he had seen a ligature mark on the neck of PW5 , 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 recorded during investigation. However, as stated by PW10, 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 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 PW4. (iv) The versions given by PW1 and PW4 in court did not, in any way, suggest that the names of suspects were narrated to them by PW5, or that he had told them about the entire incident. As a matter of fact, PW1 went to the extent of asserting that it was through his (PW5) said uncle that he came to know about the incident. (v) Thus, the version given by PW5 that he had narrated the entire incident to PW1, PW4 and darogaji was not supported by any of them. Moreover, the other person (PW5’s said uncle) to whom similar narration was given by PW5, was not even examined by the prosecution. (vi) The charge-sheet did indicate PW5’s said uncle 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 to be a relevant and material witness. Having culled out the essential features emerging from the record, it is difficult to place reliance upon the testimony of PW5 and the said version cannot be made the basis of conviction of Hari Om. Hence it is not 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. [Paras 23, 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 Shyam v. State of Rajasthan (2014) 5 SCC 389 : [2014] 5 SCR 242 – relied on

5. Insofar as accused Sanjay and Saurabh 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. According to the record, Exhibit Ka 7 was the Panchnama testifying the lifting of the fingerprints from the house of the deceased by Constable. 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 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. In the premises, the appeals preferred by accused Hari Om, Sanjay and Saurabh is accepted. While setting aside the orders of conviction and sentence recorded against them, they are acquitted of all the charges levelled against them. [Paras 29, 30, 37][83-G-H; 84-AC; 88-C]

Musheer Khan alias Badshah Khan and another v. State of Madhya Pradesh (2010) 2 SCC 748 : [2010] 2 SCR 119; Ram Shankar Singh and Others v. State of Uttar Pradesh AIR (1956) SC 441; Saktu and Another v. 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 of Punjab (2015) 7 SCC 167; Prakash v. State of Karnataka (2014) 12 SCC 133 : [2014] 5 SCR 242; Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 – referred to.