# HARI OM @ HERO v. STATE OF U.P

- **Citation:** [2021] 13 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 2021-01-05
- **Case number:** Criminal Appeal No. 1256 of 2017
- **Bench:** Uday Umesh Lalit, Indu Malhotra, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hari-om-hero-v-state-of-u-p-35280
- **Pages:** 40

## Headnote

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 AppellantHari 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 appellantSanjay 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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[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 mor

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49
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 AppellantHari 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 appellantSanjay 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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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 narrated
the entire incident to his other uncle PW1 and said uncle and
told them that Hari Om and his associates had committed the
murders and also told them that he had witnessed the incident.
However, the FIR lodged by PW1 spoke otherwise. According
to the reporting, the accused were unknown persons. The
reporting also did not disclose that PW5 had survived, despite
being attempted to be murdered, and that he had witnessed the
incident. As a matter of fact the FIR did not make any reference
to PW5. (iii) according to PW5, he had narrated the entire incident
to PW4 and darogaji. On this score also, the record spoke
otherwise, according to which, till 29.10.2008 the names of Hari
Om and his associates had not surfaced as suspects at all. The
initial registration of crime was against unknown persons.
(iv)There are other inconsistencies and omissions with regard
to the manner in which his siblings were done to death. [Para
23][79-F-H; 80-A-C]
4. As against statement of PW5 recorded during
investigation, certain other features are available from the record
which must be noted-(i) if PW5 was attempted to be murdered
and as disclosed by PW4 he had seen a ligature mark on the
neck of PW5 , there was nothing on record supporting this fact.
(ii) Parcha No.2 which was part of papers pertaining to
investigation, did make a reference to the statement of PW5
recorded during investigation. However, as stated by PW10, the
said Parcha was not in his handwriting, though, he was incharge
of investigation. He could not give any answer as to who had
written that Parcha. (iii) if according to the Prosecution, PW4
was the first person to reach the place of occurrence, his statement
was recorded 26 days after the incident. The response given by
the concerned Investigating Officer shows that no attempts were
made to trace said PW4. (iv) The versions given by PW1 and
PW4 in court did not, in any way, suggest that the names of
suspects were narrated to them by PW5, or that he had told them
about the entire incident. As a matter of fact, PW1 went to the
extent of asserting that it was through his (PW5) said uncle that
he came to know about the incident. (v) Thus, the version given
by PW5 that he had narrated the entire incident to PW1, PW4
HARI OM @ HERO v. STATE OF U.P.
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[2021] 13 S.C.R.
and darogaji was not supported by any of them. Moreover, the
other person (PW5's said uncle) to whom similar narration was
given by PW5, was not even examined by the prosecution. (vi)
The charge-sheet did indicate PW5's said uncle to be one of the
relevant witnesses, and yet he was not examined. On the other
hand, the charge-sheet did not even speak of PW5 to be a relevant
and material witness. Having culled out the essential features
emerging from the record, it is difficult to place reliance upon
the testimony of PW5 and the said version cannot be made the
basis of conviction of Hari Om. Hence it is not 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. [Paras
23, 24, 26][80-D-H; 81-A-D; 82-D]
Digamber Vaishnav and Another v. State of Chhattisgarh
(2019) 4 SCC 522 : [2019] 2 SCR 844; Radhey Shyam
v. State of Rajasthan (2014) 5 SCC 389 : [2014] 5
SCR 242 - relied on
5. Insofar as accused Sanjay and Saurabh are concerned,
apart from 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. They were acquitted of the charges under Section
412 of IPC and under the Arms Act. Whether their liability in the
instant case can be fastened with the help of the fingerprint
expert's report is the question. According to the record, Exhibit
Ka 7 was the Panchnama testifying the lifting of the fingerprints
from the house of the deceased by Constable. 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
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adopted by the investigating machinery. In the premises, the
appeals preferred by accused Hari Om, Sanjay and Saurabh is
accepted. While setting aside the orders of conviction and
sentence recorded against them, they are acquitted of all the
charges levelled against them. [Paras 29, 30, 37][83-G-H; 84-AC; 88-C]
Musheer Khan alias Badshah Khan and another v. State
of Madhya Pradesh (2010) 2 SCC 748 : [2010] 2
SCR 119; Ram Shankar Singh and Others v. State of
Uttar Pradesh AIR (1956) SC 441; Saktu and Another
v. State of Uttar Pradesh (1973) 1 SCC 202 : [1973] 1
 SCC 202; Suryanarayana v. State of Karnataka (2001)
9 SCC 129 : [2001] 1 SCR 1; State of Uttar Pradesh v.
Krishna Master and Others (2010) 12 SCC 324 : [2010]
9 SCR 563; Manmeet Singh alias Goldie v. State of
Punjab (2015) 7 SCC 167; Prakash v. State of
Karnataka (2014) 12 SCC 133 : [2014] 5 SCR 242;
Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 -
referred to.
Case Law Reference
[2010] 2 SCR 119
referred to
Para 20 (c)
(1956) SC 441
referred to
Para 20(d)
[1973] 1 SCC 202
referred to
Para 20(d)
[2001] 1 SCR 1
referred to
Para 20 (d)
[2010] 9 SCR 563
referred to
Para 21
(2015) 7 SCC 167
referred to
Para 21
[2019] 2 SCR 844
relied on
Para 25
[2014] 5 SCR 242
relied on
Para 25
(1977) 2 SCC 99
referred to
Para 34
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1256 of 2017.
From the Judgment and Order dated 03.03.2017 of the High Court
of Judicature at Allahabad in Capital Appeal No. 3086 of 2015 with
Reference No. 8 of 2015.
HARI OM @ HERO v. STATE OF U.P.
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With
Criminal Appeal Nos. 3, 4 of 2021
Ms. Aishwarya Bhati, Sr. Adv. (AAG), B.H. Marlapalle, Sr. Adv.,
Tara Chauhan, Krishan Kumar, Shankar Divate, Ajit Wagh, Ms. Prabhleen
Kaur, Vishnu Shankar Jain, Ms. Dorjasvi Goswami, A.P. Mayee,
A. Rajarajan, P.I. Jose, Harikumar V., Ravi Sagar, Jayant K. Mehta,
Sajal Jain, Sibo Sankar Mishra, Sahil Tagotra, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. In Sessions Trial No.234 of 2008, 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, 412 of IPC1 and under Section
3(2)(v) of the SC/ST2 Act. These six accused were also tried by the
Trial Court3 for offences under Section 25 of the Arms Act, 1959 in
Sessions Trial Nos.235 of 2008, 239 of 2008, 237 of 2008, 238 of 2008,
236 of 2008 and 504 of 2011 respectively. By its common judgment in
said seven trials, the Trial Court recorded as under: -
"Convict Hariom @ Hero is awarded death sentence for the
offence u/S 396 IPC. He shall be hanged till death. This order
related to death sentence shall be in accordance with the
confirmation of the Hon'ble High Court u/S 366 Cr.P.C.
Accused Hariom @ Hero is acquitted from Section 412 IPC and
Section 3(2) 5 of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act and from Section 25 Arms act in
Crime No.371/2008.
Convicting accused persons Rijwan, Haseen, Bhaiye @ Fareed
@ Rafique, Sanjay @ Sonu, Saurab @ Sanju u/S 396 IPC, they
are awarded life imprisonment and Rs.25,000/- fine to each of
the accused.
1 Indian Penal Code
2 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
3 Additional Sessions Judge-2, Firozabad
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Accused persons Rijwan, Haseen, Bhaiye @ Fareed @ Rafique,
Sanjay @ Sonu, Saurabh @ Sanju are discharged u/S 412 IPC
and Section 3(2) 5 of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act and accused Rijwan is acquitted
from the offence u/S 25 Arms Act in Crime No.369/08, accused
Haseen is acquitted from the offence under Section 25 Arms Act
in Crime No.370/08, accused Bhaiye @ Fareed is acquitted from
the offence under Section 25 Arms Act in Crime No.381/08,
accused Sanjay @ Sonu is acquitted from the offence under
Section 25 Arms Act in Crime No. 368/08 and accused Saurabh
@ Sanju is acquitted from the offence under Section 25 Arms
Act in Crime No.372/08.
75% of the amount of fine shall be given to the sole surviving
member of the victim family i.e. Ujjawal. In case of default of
payment of fine, accused persons shall serve 6 months of additional
imprisonment."
2. Death sentence having been awarded to accused Hari Om, the
matter stood referred to the High Court4 by way Reference No.8 of
2015. All the aforementioned six accused also filed Criminal Appeal
Nos.3316 of 2015, 3265 of 2015, 3317 of 2015, 3836 of 2015, Capital
Appeal No.3086 of 2015 and Criminal Appeal No.3512 of 2015
respectively challenging their convictions and sentences.
3. The High Court by its common judgment and order dated
03.03.2017 passed in the aforestated Reference and Appeals: -
(a) affirmed the conviction and sentence of death imposed upon
accused Hari Om and dismissed his Appeal.
(b) affirmed the conviction and sentence awarded to accused
Sanjay @ Sonu and Saurabh @ Sanju and dismissed their
Appeals.
(c) accepted the Appeals of accused Haseen Khan, Rafique @
Bhaiye and Rijwan and acquitted them of the charges leveled
against them.
4. Criminal Appeal No.1256 of 2017 is preferred by Hari Om
while Special Leave Petition (Criminal) Nos.9087 and 9088 of 2017 are
4 The High Court of Judicature at Allahabad
HARI OM @ HERO v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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[2021] 13 S.C.R.
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.
5. Leave granted in aforesaid Special Leave Petitions.
6. The initial reporting in the instant matter was made by Kotwal
Singh (later examined as PW1) at about 7.40 am on 28.10.2008 as under:-
"It is submitted that family of my elder brother Shaheed late Sh.
Rajpal Singh had constructed a house in Nagla Mirja Bada and
were living there. Today, in the night of 27 & 28/10 some unknown
persons have committed murder of my sister-in-law Smt. Nirdosh
Devi age 40 years, niece Ku. Poonam age 18 years, nephew Ashish
age 12 years and nephew Anshul age 10 years in which neck of
my sister-in-law is cut and murder of all the three has been
committed by pressing neck/throttling. The incident has come to
knowledge in the morning today when milkman came. 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, jewellery and cash. List of articles looted will
be submitted subsequently. Report be registered and necessary
action be taken."
Crime No.367 of 2008 under Section 394, 302 IPC was, therefore,
registered with P.S. Ramgarh, Firozabad against unknown persons.
7. Thereafter, following steps were taken on 28.10.2008:-
A. The investigation into the crime was taken up by PW10 S.O.
Gautam, who prepared Site Map (Ext.Ka-20). On the same day
PW9 Sub-Inspector Ram Prasad conducted inquest on the dead
bodies of Smt. Nirdosh Devi, Kumari Poonam, Masters Ashish
and Anshul and sent them for autopsy. He had found these four
dead bodies lying in supine condition.
B. In the presence of two witnesses, namely, PW3 Harpal Singh
and one Mukesh Kumar:-
(i) Blood-stained earth from the floor below the cot where
the body of Smt. Nirdosh Devi was lying and the portion of
blood stained "baan" (rope) of the cot were taken (vide Ext.
Ka-6).
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(ii) Finger prints from certain articles like utensils, glasses
from the house of the deceased were taken by Constable
Dharmender Singh, DCRB (vide Ext. Ka-7).
C. Statements of Ompal Singh (later examined as PW2), Ram
Prakash, Raju (owner of the house where accused Hari Om used
to live) and Manoj Kumari (wife of Hari Om) were also recorded,
which disclosed possible involvement of Hari Om and his
associates.
D. The Post-Mortem on the dead bodies of Smt. Nirdosh Devi
and Kumari Poonam was jointly conducted by PW7 Dr. R.A.
Sharma and Dr. Ajay Agarwal, while the Post Mortem on the
dead bodies of Masters Anshul and Ashish was conducted by
PW7 Dr. R. A. Sharma. The injuries on the dead bodies were
described by the High Court as under:-
"a. Smt. Nirdosh Devi: aged 40 years
"i. Incised wound 11 cm x 4 cm on lower part front of neck, more
on left side, left side blood vessels cut trachea cut, right and left
side muscle cut. Wound horizontal, marquis clean cut.
ii. Abraded contusion over right side of nose 1 cm x 0.1 cm.
On internal examination, trachea was found cut. Semi
digested food was found in stomach. Brain was noted pale. Cause
of death was due to shock and hemorrhage as a result of ante
mortem injuries. Vaginal smear made. Slide prepared and sent to
Pathologist SNMH Firozabad through S.O., P.S. Ramgarh."
b. Kumari Poonam: aged 18 years
"i. Ligature mark 13 cm x 1.5 cm oblique, lower part of neck in
middle part and extending upto right side upper part of neck. On
dissection underlying muscles contused.
On internal examination membranes and brain were found
congested, pleaura, Jarynx, trachea were found congested. Hyoid
bone was found fractured. Both lungs congested. Semi digested
food was found in stomach. Cause of death was due to Asphyxia
as a result of strangulation. Vaginal smear made. Slide prepared
and sent to Pathologist SNMH Firozabad through S.O., P.S.
Ramgarh."
HARI OM @ HERO v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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c. Master Ashish: aged 12 years
"i. Multiple contusion on right side, front of neck in an area 6 cm
x 3 cm, Average size 1.5 cm x 03. Cm
ii. Contusion 3 cm x 1.5 cm on left side front of neck, middle part.
iii. Multiple contusion left side of face 6 cm x 3 cm, average size
1 cm x 0.3 cm.
Cricoid cartilage and Thyroid cartilage found fractured.
Death was due to Asphyxia as a result of throttling."
d. Master Anshul: aged 10 years
i. Contusion brown dry over front of neck 12 cm x 5 cm over left
side of neck, 2 cm over right side of neck.
ii. Contusion 1 cm x 2 cm below jaw left side.
iii. Contusion 1.5 cm x 2 cm lower part of neck left side.
On internal examination, cricoid cartilage, thyroid cartilage,
Hyoid bone were found fractured. Pleura, trachea were found
congested. Membranes, brain congested. Semi digested food
present in stomach. Spleen and kidneys were noted congested.
Cause of death was due to Asphyxia as a result of throttling."
8. Steps taken on the next day i.e. 29.10.2008, were:-
A) Pursuant to information received from the complainant,
PW10 S.O. G.P. Gautam along with police party and the
complainant went to "Sailai Choraha" and at about 11 a.m.
apprehended five out of aforesaid six persons while one of
them, namely, Rafiq @ Bhaiye ran away. These persons were
found to be travelling in a Red Tavera vehicle bearing
No.UP83J/7948. From the personal search of these five persons
following articles were recovered:-
(a) from Sanjay @ Sonu : country made pistol and two live
cartridges
(b) from Rijwan : one country made pistol of 12 Bore and
4 live country made cartridges
(c) from Haseen Khan: one country made pistol of 3.15
Bore with 3 live cartridges
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(d) from Hari Om @ Hero: Double Barrel Pauna rifle and
one live cartridge, one Nokia Mobile set of black colour
(which was stated to be belonging to the deceased Smt.
Nirdosh Devi)
(e) from Saurabh @ Sanju: a chhuri (knife).
From the collective possession of these five persons,
following articles5 were also recovered:
"one polythene bag containing one identity card of Rajpal
and Pass-Book of Nirdosh Devi & one Pass-Book of joint
account of Manju Devi & Sanjay, one Pass Book of joint
account of Nirdosh Devi and Rajpal of Indian State Bank;
two bangles of yellow metal (gold) from red colored Shaneel
purse; a ring of yellow metal (gold) were recovered with
cash of Rs.5,000/-; 02 ladies wrist watches from yellow
colored Shaneel purse, one silver Kardhani (of 5 Lar) of
white metal weighing about 250 gms from red Shaneel
purse, one 1⁄2 silver Kardhani from Badami coloured
Shaneel purse and one yellow metal of golden colour were
recovered from red coloured Shaneel purse."
B. Crime Nos.368 to 372 of 2008 for the offences punishable
under Section 25 of the Arms Act, 1959 were thereafter registered
against Sanjay @ Sonu, Rijwan, Hari Om @ Hero, Haseen Khan
and Saurabh @ Sanju respectively.
C. Apart from the arrest of the aforesaid five persons, the
statement of Ujjwal, five years old son of Smt. Nirdosh Devi (the
lone survivor) was recorded. According to the record, his statement
could not be recorded on the previous day as Ujjwal was under
shock and unable to make any statement.
D. A chhuri/knife was recovered at the pointing of accused Hari
Om in the presence of Panchas.
E. The registration of Crime No.367 of 2008 was altered to that
under Sections 396 and 412 IPC and in respect of offences
punishable under the SC/ST Act.
5 As stated by PW10 S.O. Gautam in his deposition
HARI OM @ HERO v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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9. On 30.10.2008 the investigation was taken over by PW11
Dr. B.K. Singh, Circle Officer, Firozabad during the course of which, he
recorded statements of various persons. On 24.11.2008, he recorded
the statements of PW1 Kotwal Singh, PW4 Shankar Lal (milkman),
Dr. Satya Pal (elder brother of PW1 Kotwal Singh) and constables
Dharmendra, Ramesh Chandra, Malkhan and Mawadh Singh.
10. The sixth person Rafique @ Bhaiye was apprehended on
05.11.2008.
11. On 03.12.2008, charge-sheet dated 24.11.2008 was filed by
PW11 Dr. B. K. Singh. The basic information about the crime was stated
as under:-
"Statement of Complainant of case, confirmed seizure-memo,
statement of Shankar Lal, milkman, confirmed place of incident,
statement of family doctor of deceased, Dr. Satyapal, confirmed
statement of constable Shankar, statement of Constable
Dharmendra Singh, confirmed finger-prints report, statement of
the Constable who got conducted PM, confirmed PM, investigation
against accused persons viz. Sanjay @ Sonu Sharma, Rizwan,
Hassen Khan, Hariom @ Hero, Saurav @ Sanju, Bhaiye @
Fareed Khan.
Sd/-
24/11/2008
Charge-sheet u/S 396, 412 IPC & 3(2) 5 SC/ST Act
No.261
-----------
24/11/08
Sent/proceeding of fingerprints match is remaining to be done for
examination of case property."
It is relevant to note that in the charge-sheet there was no
reference to the statement dated 29.10.2008 of Ujjwal, the youngest
child of Smt. Nirdosh Devi nor did it say or suggest that he was a relevant
witness.
12. On 04.12.2008 PW11 Dr. B. K. Singh sent the finger prints
lifted from various articles, from inside the house of the deceased as
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well as sample finger prints of Sanjay @ Sonu, Rijwan, Haseen Khan,
Hari Om @ Hero and Saurabh @ Sanju for analysis.
13. By its report dated 18.05.2009 the Office of the Director,
Finger Print Bureau, Lucknow intimated to the Trial Court, the result of
finger prints examination. The relevant portion of the report was as under:
"DISPUTED FINGER PRINTS: finger prints lifted through lifting
tape were affixed on four papers. Finger prints have been marked
as No.8898 to 8922.
Sample of Finger prints: Sample finger prints of Sh. Sanju @
Saurabh, Bhaiye @ Farid, Rijwan, Hariom @ Hero, Sanju @ Sonu
Sharma and Haseen Khan taken on slips/parchi dated 4.12.08.
All the right & left 10 fingers print have been marked as No.8923
to 8982 respectively.
Sd/- (Illegible)
Sd/- (Illegible)
 Sd/- (Illegible)
2. Examination of all the records was conducted in this office,
result with reasons are as under :-
D.F.I./P. No.8909 is similar/identical to sample F.I. No.8923. Its
formation and line pattern are same. In enlarged pictures, identical
lining pattern have been shown in red lines. Details of which are
mentioned in Matching list.
Para 2: D.F.P. impression No.8914 is similar/identical to Sample
F.P. No.8963. Its formation and lining are same. In the enlarged
picture, similar/identical lining pattern have been shown in red
lines. Details of which are mentioned in Matching list.
Para 3 : D.F.P. impression No.8917 is similar/identical to Sample
F.P. No.8964. its formation and lining pattern are same. Identical
lining pattern have been shown in red lines (illegible) in enlarged
pictures. Details of which are mentioned in Matching list.
Para 4 : Lining characteristic are not sufficient in disputed finger
prints No.8904, 8905, 8906, 8907, 8908, 8916, 8919, & 8920 for
giving definite opinion.
Para 5: Disputed Finger Prints No.8898 to 8903, 8910 to 8913,
8915, 8918, 8921, 8922 are not clear for matching."
HARI OM @ HERO v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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It must be stated here that the disputed finger print No.8909 lifted
from a glass in the kitchen of the house matched with the thumb
impression of right hand, being sample No.8923, of Sanju @ Saurabh
while the disputed finger print impressions 8914 and 8917 from another
glass matched with the sample impressions of the thumb and index finger
of right hand being sample Nos.8963 and 8964 of Sanjay @ Sonu.
14. Appropriate charges were framed on 23.11.2009 against all
six accused. The charges framed in Sessions Trial No.234 of 2008 were
as under:-
"I, Lukmanul Haque, Special Sessions Judge, Court no.4, Firozabad
charge you accused persons namely Sanjay alias Sonu, Rijwan,
Haseen Khan, Hari Om alias Hero, Saurabh alias Sanju, Fareed
alias Rafique with following charges."
First:- This that on 28.10.2008 at the night, time unknown,
place Nagla Mirza Bada at the house of deceased under Ramgarh
police station area, District Firozabad, you murdered the
complainant's sister-in-law, nephews, niece and decamped with
the jewelry, cash etc which were kept at the house. This way you
have committed an offence which is punishable u/s 396 of the
IPC and is in cognizance of this Court.
Second:- This that the articles which were lotted on the
above date, time and place. Cash jewelry, watch etc were
recovered from the possession of you people near the Sailai culvert
at 11:00 on 29-10-08 under Ramgarh Police Station, District
Firozabad, even after knowing that these items were looted you
had kept these with you. This way, you committed an offence
which is a punishable offence u/s 412 of the IPC and is in
cognizance of this Court.
Third:- This that on the above date, time and place of
occurrence, you committed heinous crimes like loot and murder
on people of Scheduled Caste. This way, you committed such an
offence which is punishable u/s 3(2)5 of the S.C.S.T. Act and is
in cognizance of this Court.
I, hereby direct you be tried by this Court under the above
charges."
They were tried by the Trial Court in Sessions Trial No.234 of
2008 and Nos.235-239 of 2008 and No.504 of 2011.
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15. The Prosecution examined fifteen witnesses and produced
the relevant material in support of its case, while two witnesses were
examined on behalf of the Defence.
16. The relevant portions from the testimony of some of the
Prosecution witnesses were as under:-
A. PW1 Kotwal Singh, brother in law of Smt. Nirdosh Devi, stated
in his examination in chief:-
"My brother had become martyr in year 2005. His family
consisted of wife Smt. Nirdosh Devi, daughter Ku. Poonam
and sons viz. Ashish, Anshul and Ujjawal.
In the night of 27/28.10.2008, murder of my sister-inlaw Nirdosh Devi, niece Poonam and nephews Ashish and
Anshul was committed by miscreants in their house only. Sisterin-law was murdered by slitting throat, while others were
murdered by throttling (strangulating), younger nephew Ujjwal
was throttled to death but survived.
This incident came into knowledge when milkman arrived.
I had also gone to the site of incident to see where all four
dead-bodies were lying separately in different rooms. Household articles, box, Almirah and suitcase etc. were lying broken
and its articles were scattered. Miscreants had looted cash
and jewellery. The articles looted were in my knowledge and
I had seen. I had submitted a written report of this incident to
Police Station."
In his cross examination, the witness stated:-
"I came to know about the incident through my elder brother.
My elder brother did not come to inform about the incident.
Someone from the colony had given information. The said
person had come to me in the morning at 6.45 am. This person
had come to the house of my brother on foot; I do not know
name of the person whom my brother Satyapal had sent to
pass information. There were 4-6 more persons with the said
person whose names I do no know. I reached the site of incident
by running with these persons only, all reached by running. We
had reached the site of incident within 5-7 minute. When I
reached the site of incident, at that time main door of the house
HARI OM @ HERO v. STATE OF U.P.
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was open. Only my elder brother Satyapal was there inside
the house, none else from the family. Family members from
Nagau reached within an hour, they had been informed by elder
brother through phone."
... ... ...
"I had gone to police station to give information on the day of
incident and thereafter, I did not go again to police station. I
wrote Exhibit Ka-1 by sitting on Kharanja outside the incident.
I, after writing Exhibit 3, submitted in the evening at about 7
O'clock. I had taken advice of elder brother Dr. Satyapal in
writing it"
... ... ...
"Till today I do not know name and residence of the milkman
through whom I received information. The fact of receiving
information from my brother Dr. Satyapal, is not written in
Exhibit Ka-1. Milkman had informed my brother. My brother
Satyapal informed me."
B. PW2 Ompal Singh who lived in the same neighbourhood stated
in examination in chief:-
"...In the night of 27/28.10.2008 at about 11 P.M. and
Ramprakash were returning back from home from work.
House of Mulayam Singh is near house of Nirdosh Devi. Near
to it, red colour four wheeler vehicle was parked. 4-5 people
were sitting inside it. Hari Om @ Hero, one of them, was
standing near the vehicle and he was talking on phone. I asked
Hari Om, 'brother why are you standing at this time' whereupon
Hari Om replied that I am talking to Faujin Nirdosh Devi. Then
we left for our home. I knew Hari Om @ Hero because he
had been tenant at the place of Nirdosh Devi. In the same
night, the incident had taken place. I had received information
in the morning. I became sure that Hari Om @ Hero and his
accomplices committed murder of Nirdosh Kumari and her
three children and the miscreants committed loot."
This witness also proved recovery memo Ext.Ka-5 and deposed
that on 29.10.2008 at about 05.00 p.m., accused Hari Om had taken out
a chhuri/knife from the bricks lying near the southern wall of the house
of one Sikia.
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Nothing was suggested to the witness in his cross examination
that Hari Om had not been the tenant of Smt. Nirdosh Devi. In his cross
examination conducted on 01.03.2011, the witness stated:-
"On 28.10.08, when police came on the spot then I was on the
spot. Then, neither I had any conversation with police nor made
any attempt to talk to the police. I did not tell to the police about
the Tavera vehicle being parked on 28.10.08."
But in his cross examination dated 10.03.2011, the witness stated:-
"On 1.3.11 I had given the statement that I did not have any
conversation with police and I did not make any attempt to talk to
the police. I had conversation with the police at police station and
it did not take place on the spot.
I had been in police station from 28.10.08 to 29.10.08. I
had seen all the accused persons in police station. I cannot say
the name of any other persons except Hari Om. Neither I had
seen any person talking on mobile near the vehicle at the spot on
28.10.08 nor did I have any conversation with the person talking
on mobile."
C. PW3 Harpal Singh, witness in respect of Exhibits Ka-6 and
Ka-7, proved those documents and stated:-
"Darogaji had collected the fingerprint on shelf, box, attachee,
utensils and glasses of the kitchen form the spot in my presence
as specimen. On it, my signature and the signature of Mukesh
Kumar were taken. One Diwanji was also present with Darogaji.
Memo was prepared on the spot. This witness has recognised
signature on Memo (Paper No.5A/2). On this, Exhibit Ka 7 was
marked."
D. PW4 Shankarlal, milkman stated in his examination in chief:-
"Family of late Fauzi Rajpal comprised of his wife, a daughter
and three sons. I knew everyone. The date was 28th in the year
08. It was Deepawali festival. I had gone to the house of Fauzi
Rajpal Singh to deliver the milk at about 6:45 AM.
I made a call at the entrance of their house. No one responded. I
knocked the door even then no one responded. I pushed door
whereupon door opened. Then, (Ujjwal) small child of late Rajpal
HARI OM @ HERO v. STATE OF U.P.
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came to me weeping from inside. Then I peeped inside the room
of the house and found wife and elder son of Fauzi Rajpal lying
dead on the cot. Blood was lying there. A girl and a boy were
lying dead in the other room. On seeing them, I got perturbed. I
took Ujjwal in my arms and informed Dr. Satyapal who is brother
of Fauzi. Then I returned to the place of incident with him. By
then, crowd had gathered. Thereafter, I had gone to deliver the
milk to some other place from my bicycle."
The witness, in his cross examination, stated: -
"I did not have the meeting with Kotwal Singh on that day. I
did not have meeting, therefore, I did not give any information
to Kotwal Singh.
... ... ...
I took Ujjawal on my lap and went to Satya Pal. He had
a ligature mark of marpeet on his neck. Neither I told this fact
to CO nor he asked me. I'm telling this fact for the first time in
the court.
... ... ...
Satya Pal did not go to PS to give information in my
presence. I had given information about the incident to Satya
Pal. Satya Pal had returned to the spot with me. Even them, I
did not have any meeting with Kotwal Singh.
... ... ...
...I could not see the cloth of Faujin because she was inside
the quilt (lihaaf). Ashish had worn chaukhane shirt and nicker.
Ashish was lying dead on the cot. I did not see by touching.
Blood was oozing out. Poonam was also inside the quilt. Her
face was also visible. She was lying on the ground. Blood was
oozing out. Blood had not dried up. I had seen the body of
fauzin and her daughter. The blood was oozing out from their
bodies. They had not dried."
E. PW5 Ujjwal, the youngest child of Smt. Nirdosh Devi, was of
five years of age when the incident had occurred and about eight years
of age when he was examined in Court. In his examination-in-chief, the
witness stated:-
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"It was Deepawali at the time of incident. The incident took
place in the night. I was sleeping at my house. The phone of
my mother rang on which my mother went to open the door.
Thereafter, on opening the gate, Hari Om uncle and 5 other
persons came inside the house. 5 uncle (persons) sat on the
takht and Hari Om uncle sat on the cot. At that time, I was
awake. Mother asked them for tea and water but these persons
did not take tea. My sister Poonam came with 6 glasses of
water and offered them water. Hari Om uncle demanded the
key of almirah from my mother. I already knew Hari Om
because he had been tenant at my house in the past.
My mother did not give the key when it was demanded
by Hari Om. Then, Hari Om caught hold of the neck of my
mother. 2 persons among the persons accompanying Hari Om
held the hands and legs of my mother and Hari Om uncle cut
the neck of my mother with iron knife.
One of the persons accompanying Hari Om caught the
neck of my sister and killed my sister Poonam. One uncle
pressed the neck of my brother Ashish. Thereafter, one uncle
pressed the neck of my other brother Anshul. Then, Hari Om
uncle and other 5 persons accompanying him i.e. total 6 persons
looted the articles of my house and went. Hari Om uncle also
pressed my neck and threw but I remained lying silently. On
identifying Hari Om present in the court, stated that accused
Hari Om is present in the court today.
On looking at accused persons present in the court, said
that 5 other persons apart from Hari Om were involved in the
incident. Today, they are present in the court."
... ... ...
"On next day of incident, in the morning, milkman came
and milkman uncle pushed the door and gate opened. On the
opening of gate, I narrated the entire facts to the milkman
uncle."
In his cross examination, the witness stated:-
"...Witness was read over the statement u/s 161 CrPC with
the help of ADGC and Shri Maheshwari, Counsel for the
HARI OM @ HERO v. STATE OF U.P.
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complainant. Then, the witness stated that in the morning,
milkman uncle came. He pushed the door and opened the door.
I had got this fact recorded to the police in my statement that
I went to him and narrated entire facts. I cannot state the
reason as to why it was not recorded."
... ... ...
"Darogaji has recorded this fact incorrect in my statement that
in the morning, after rising of the Sun, my neighbours took me
out from the house. Then I saw that my uncle Doctor Saab
and many persons with him had come to the house. I cannot
say as to how this fact got recorded."
... ... ...
"When I reached the house of my Tau then my uncle Kotwal
also reached there and I narrated the entire incident of the
night to Tau and Uncle and also told that Hari Om uncle and 5
other have committed the incident and also told that I witnessed
the incident. After narrating entire facts to Tau and uncle, I
went to my house with Milkman uncle and Tau and when police
came after 5 minutes, in the morning, police came. Then, they
were told that Hari Om and 5 uncles came in the night. They
committed the incident. I have witnessed the incident. Told the
incident to milkman uncle in the morning."
... ... ...
"After meeting milkman, met Tauji (elder brother of father).
When I returned then police had come. Police stayed till evening
and police had asked in my presence as to where mother was
lying? Where was brother lying, where was sister lying and
after throttling, where were (they) thrown. Police did not ask
the milkman, my uncle Kotwal and elder uncle Satyapal. I had
told all these facts to the police."
... ... ...
"I was sleeping on the takht.