The Supreme Court on Tuesday(05.01.2021) in the case of Hari Om v. the State of UP acquitted a person who had been convicted and sentenced to death by a trial court and the Allahabad High Court for the offence of dacoity with murder under Section 396 of the Indian Penal Code (IPC).
In this case, six accused were convicted by the Trial Court after they were found guilty of offences punishable under Sections 396, 412 of the IPC and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. One of them, Hari Om @ Hero was awarded the death sentence. They were accused of committing the murder of a woman and her three children out of which two of them were minors.
In appeal and death reference, the Allahabad High Court upheld the death sentence awarded to Hari Om and upheld conviction and sentence imposed on two others, while acquitting the other three. Therefore the three convicts, including Hari Om, approached the Apex Court.
The Learned Amicus Curiae BH Marlapalle submitted that there were glaring inconsistencies in the testimony of one of the main witnesses, Ujjwal, who was the 5-year-old son of Nirdosh Devi and the lone survivor.
Marlapalle further pointed out that there was no evidence suggesting that the fingerprints were correctly lifted from the house of the deceased, and were duly preserved before sending them for the fingerprints expert’s opinion.
It was even argued that the only material against the accused Sanjay and Saurabh was 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, he contended.
The Supreme Court accepted these arguments.
The apex court referred to certain “inconsistencies” from the record and said it is difficult to place reliance upon the testimony of the minor child, who was the son of one of the victims, and his version cannot be made the basis of conviction of the accused who was awarded capital punishment for the 2008 case.
"Even if we 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 Radhey Shyam vs. the State of Rajasthan, 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. 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."
A bench headed by Justice U U Lalit also acquitted two other accused, who were facing life term in the case after their conviction by the trial court was upheld by the Allahabad High Court, giving them the benefit of doubt.
The bench, also comprising justices Indu Malhotra and Krishna Murari observed that there is no material on record sufficient to record the conviction of accused Hari Om for the offence under Section 396 IPC, and he must be held entitled to benefit of the doubt. Regarding the other two accused, the bench observed that, apart from the fingerprints, there was nothing else on record against them. "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 the doubt", the court said while allowing the appeals.
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