Child witness – not reliable – cannot – basis of conviction of Appellant.-SC
January 05, 2021
Nirdosh Devi age 40 years, niece Ku. Poonam age 18 years, nephew Ashish age 12 years and nephew Anshul age 10 years. All the four dead-bodies are lying separately in both two rooms and after breaking box, almirah, suitcase etc. they have taken away all the house-hold articles, jewelry and cash. Report be registered and necessary action be taken. Six accused persons, namely. Sanjay @ Sonu, Rijwan, Haseen Khan, Hari Om @ Hero, Saurabh @ Sanju, Rafique @ Bhaiye @ Fareed were tried for having committed offences. punishable under Sections 396, 302,412 of IPC and under Section 3(2)(v) of the SC/ST Act. These six accused were also tried for offences under Section 25 of the Arms Act, 1959. By its common judgment in said seven trials, the Trial Court recorded as under: – “Convict Hariom @ Hero is awarded death sentence for the offence”. The High Court has upheld the conviction and sentence of death imposed upon accused Hari Om and dismissed his Appeal. Accused Haseen Khan, Rafique @ Bhaiye and Rijwan are acquitted of the charges leveled against them. Sanjay @ Sonu and Saurabh @ Sanju are found guilty and sentenced to life imprisonment. Criminal Appeal No.1256 of 2017 is preferred by Hari Om and Special Leave Petition (Criminal) Nos.9087 and 9088 of 2017 are preferred by Sanjay @ Sonu and Saurabh @ Sanju respectively challenging the judgment and order dated 03.03.2017 passed by the High Court. No appeal has been preferred by the State challenging acquittal of Rijwan, Haseen Khan, Rafique @ Bhaiye. It has been held that “corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence” is well-accepted. The rule of corroboration is of practical wisdom rather than of law, and evidence of a child witness must find adequate corroboration before it is relied upon, because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. Evidence of the child witness must be evaluated more carefully and with greater circumspection. Pw-5 Child witness is not reliable and said version cannot be made the basis of conviction of Appellant. The child witness’s testimony didn’t help the prosecution’s case because it was riddled with inconsistencies and was uncorroborated by the other witnesses. In the absence of any memorandum, the trial court wrongly rejected the theory that such recovery would be admissible under Section 27 of the Evidence Act. It was however observed that such recovery would be admissible under Section 8 of the Evidence Act. 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. Conviction set aside. Appeal allowed
HARI OM @ HERO
VERSUS
STATE OF U.P.
