A 3-judge bench of the Supreme Court consisting of Justices Uday Umesh Lalit, Indu Malhotra and Krishna Murari have, through the judgment in the case- Hari Om alias Hero v. State of U.P., delivered on January 5, 2021, held that all the three appellant-accused-Hari Om who was sentenced to death, Sanjay alias Sonu and Saurabh alias Sanju are entitled to benefit of doubt and the Court has allowed their appeals . After setting aside the order of conviction and sentence, the Court has acquitted them of all the charges leveled against them. The Court has directed that they be set at liberty.
As the accused Hari Om was sentenced to death in the case involving the offence of dacoity with murder under section 396 of the IPC by the Addl Sessions Judge – 2, Firozabad, after the trial with 6 other accused persons, during 2008 to 2015, the sentence of death awarded to him was referred to the Allahabad High Court for mandatory confirmation and these accused persons’ criminal appeals were also heard together by the HC.
The HC by its common judgment of all the 7 trials had affirmed the conviction and sentence of death imposed upon the accused Hari Om and dismissed his appeal. The HC had affirmed the conviction and sentence awarded to accused Sanjay and Saurabh and dismissed their appeals. Further, the HC had allowed the appeals of the accused Haseen Khan, Rafique alias Bhaiye and Rijwan and acquitted them of the charges alleged against them.
In the night of October 27 and 28, 2008, these accused persons have allegedly committed the murder of Nirdosh Devi (40) sister-in-law, Poonam (18) niece, Ashish(12) and Anshul (10),the two nephews of the complainant Kotwal Singh. They had also taken away all the jewellery, cash and other house-hold articles. The Court has stated that after having culled out the essential features emerging from the record, it found it difficult to place reliance upon the testimony of the prosecution witness -5 ,Ujjwal and in its view the version given by him cannot be made the basis of conviction of Hari Om.
The testimony by Ujjwal that he had narrated the entire incident to prosecution witnesses Kotwal Singh, Shankar Lal and Darogaji was not supported by any of them. The Court has also found it not safe to rely upon the version give by the child witness, who was about five years old at the time of the incident. With the acquittal of all the accused in respect of offence of dacoity punishable under section 412 IPC and under the Arms Act, there is no other material pointing towards the involvement of Accused Hari Om.
Thus, out of three features, which could possibly be put against the accused Hari Om, the version given by the child witness being unworthy to be relied upon, the Court was left with the evidence of recovery of a knife, and the evidence of PW-2 that he had spotted accused Hari Om near a red Tavera vehicle in the neighborhood. The prosecution did not attempt to prove that the call received by Nirdosn Devi could be associated with the accused Hari Om.
Secondly, the time given by PW-2 Ompal Singh again did not match with the time of the call received by Nirdosh Devi. Further, the evidence of Ompal Singh also contains inherent inconsistencies. In the premises, there has been no material on record sufficient to record conviction of the accused Hari Om for the offence of dacoity with murder under section 396 IPC and he must be held entitled to benefit of doubt.
In this case, Constable Dharmender Singh was not examined by the prosecution. There is nothing on record regarding the competence of said Constable, and whether he was adequately trained, or was an expert in lifting the fingerprints from material such as glasses; nor was any evidence laid detailing out the procedure adopted by him. In the absence of any such material, it is extremely difficult to rely upon the report that the lifted fingerprints from the glasses matched with the sample fingerprints of accused Sanjay and Saurabh. As per the Supreme Court decisions, fingrerprint expert’s evidence is not considered substantive one. It is at best can be used to corroborate some items of substantive evidence.
According to the Supreme Court‘s opinion in its decision of the case- Hukam Singh v. State of Rajasthan-(1977) 2 SCC 99, about the circumstance of the fingerprints of the accused on a mirror, this circumstance cannot be regarded as necessarily implicating the accused in the commission of the murder. The presence of the fingerprints on a mirror is not such a circumstance .which would necessarily lead to the inference that the accused must have committed those 4 murders.
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 conclusion only that only the accused person and none other perpetrated the alleged 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.
It must be stated that both Sanjay and Saurabh were unknown faces to PW-5 Ujjwal, and were not subjected to any Test Identification. Apart from identification by PW-5 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.