HARI OM @ HERO versus STATE OF U.P.

Citation: [2021] 13 S.C.R. 49 · Decided: 05-01-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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HARI OM @ HERO
v.
STATE OF U.P.
(Criminal Appeal No. 1256 of 2017)
JANUARY 05, 2021
[UDAY UMESH LALIT, INDU MALHOTRA AND
KRISHNA MURARI, JJ.]
Penal Code, 1860: ss.396, 412 – Six accused persons tried
for committing offences u/ss.396 and 412 IPC, s.3(2)(v) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and s.25 of Arms Act – Trial court convicted all the accused
persons for offence u/s 396 IPC and awarded life imprisonment to
five accused persons while awarding death sentence to Appellant-
Hari Om – High Court affirmed death sentence of appellant-Hari
Om, life imprisonment of Appellant-Sanjay and Saurabh and
acquitted other three accused persons – On appeal, held:
Corroboration of the testimony of a child witness is not a rule but a
measure of caution and prudence – Testimony of child witness cannot
be accepted wherein there are glaring inconsistencies on record
which cannot be discarded, hence Appellant-Hari Om cannot be
convicted on such testimony – Apart from the material that sample
fingerprints matched with those lifted from the house of the deceased,
nothing was brought on record to suggest involvement of appellant-
Sanjay and Saurabh – Order of conviction and sentence  set aside.
Allowing the appeals, the Court
HELD: 1. The caution expressed by this Court in
Suryanarayana vs. State of Karnataka that “corroboration of the
testimony of a child witness is not a rule but a measure of caution
and prudence” is a well-accepted principle. [Para 22][75-B]
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
[2021] 13 S.C.R.49
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SUPREME COURT REPORTS
[2021] 13 S.C.R.
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
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house of his uncle by the neighbours. (ii) according to his court
statement, after reaching the house of said uncle, he had na

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