The Supreme Court has acquitted three people in a case related to dacoity with murder while pointing out glaring discrepancies in the investigation on the part of the prosecuting agency.
A three-judge bench of Justices Uday Umesh Lalit, Indu Malhotra and Krishna Murari has set aside the order awarding death penalty to one accused and life imprisonment to two others under Section 396 of Indian Penal Code.
The Court pronounced its verdict in the petition filed by one Hari Om @ Hero who had challenged his conviction and sentence of death which was affirmed by the High Court. Along with the separate two appeals by the accused Sanjay @ Sonu and Saurabh @ Sanju whose appeals were dismissed by the High Court too and the conviction and sentences were affirmed by the High Court.
The three persons were convicted and sentenced by the trial court under Sections 396 of the Indian Penal Code including three others. Initially charges were framed against six persons namely Sanjay @ Sonu, Rijwan, Hassen Khan, Hari Om @ Hero, Saurabh @ Sanju, Rafique @ Bhaiya @ Fareed and were tried for having committed offences under the Section 396 and 412 of IPC and under Section 3(2)(v) of the SC/ST Act.
They were also tried for offences under Sections 25 of the Arms Act 1959 but the Trial Court had convicted them under Section 396 of IPC and awarded death penalty to Hari Om @ Hero and life imprisonment to rest. All of them had challenged the trial court order before the High Court. The High Court had acquitted the three and confirmed the death penalty to Hari Om and life imprisonment to two others which became the subject matter of challenge before the Apex Court.
In these appeals, Senior Counsel B. H. Marlapalle appeared as amicus curiae on behalf of the accused has submitted four points in favour of them to show discrepancies in prosecution’s case.
A) In the face of glaring inconsistencies in the version given by PW5 Ujjwal and in the face of record as it stood, it would be extremely hazardous to accept the testimony of PW5 Ujjwal and make it the basis of conviction of accused Hari Om.
B) There was no link evidence suggesting that the fingerprints were correctly lifted from the house of the deceased, and were duly preserved before sending them for fingerprints expert’s opinion.
C) The only material against accused Sanjay @ Sony and Saurabh @ Sanju 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 of the Apex Court in Musheer Khan alias Badshah Khan and another Vs State of Madhya Pradesh.
D) Out of six named accused charged of having committed offence of dacoity, three accused having being acquitted, whose acquittal was not challenged, the remaining three accused could not be convicted under Section 396 IPC. Reliance was placed on the decision of the Apex Court in Ram Shankar Singh and Others Vs State of Uttar Pradesh and Saktu and Another Vs State of Uttar Pradesh.
The Apex Court dealt with the submission one by one. On the first point regarding the testimony of child witness, the Court pointed out that there were certain inconsistencies or infirmities which are evident from the record.
“Having culled out the essential features emerging from the record, we must State that we find it difficult to place reliance upon the testimony of PW5 Ujjwal and in our view, the said version cannot be made the basis of conviction of Hari Om,” said the Court.
The Supreme Court relied on the judgment in case of Digamber Vaishnav & Another Vs State of Chhattisgarh and in Case of Radhey Shyam Vs State of Rajasthan, wherein it was held that 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. We do not find the 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 doubt,”
said the Court.
Regarding the two others, who were sentenced to life imprisonment, the Court noted apart from the 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. “Whether their inability in the instant case can be fastened with the help of the fingerprint experts report is the question,” said the Court.
The Court pointed out that 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, pointed out by the Court.
It further said that, “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.”
“It must be stated that both Sanjay @ Sonu and Saurabh @ Sanju were unknown faces to PW5 Ujjwal, and were not subjected to any Test Identification. Apart from identification by PW5 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,” held by the Court.
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The Court held,
“In the premises, we accept the appeals preferred by accused Hari Om, Sanjay @ Sonu and Saurabh @ Sanju. While setting aside the orders of conviction and sentence recorded against them, we acquit them of all the charges levelled against them. They be set at liberty, unless their custody is required in connection with any other offence.”