In absence of any substantive evidence, Fingerprints Match alone cannot be the basis of conviction

Hari Om vs. State of U.P.

Criminal Appeal No. 1256 of 2017, Criminal Appeal No. 3 of 2021 (Arising out of Special Leave Petition (Crl.) No. 9087 of 2017) and Criminal Appeal No. 4 of 2021 (Arising out of Special Leave Petition (Crl.) No. 9088 of 2017)

Decided on 5th January, 2021

Counsel for accused: B.H. Marlapalle

Counsel for State: Ms. Aishwarya Bhati

A three judge bench of the Supreme Court consisting of Justice U.U. Lalit, Justice Indu Malhotra and Justice Krishna Murari acquitted all the six accused of all the charges levied against them entitling them the benefit of doubt.

A criminal charge was levied against six accused person in matter relating to death of 6 person of the same family for the reasons of dacoity. The six person namely, Hari Om, Sanjay, Rijwan, Haseen Khan, Saurabh and Rafique were tried for offences punishable under Section 396, 412 of IPC, under Section 3(2) (V) of the SC/ST act and Section 25 of Arms Act in the High Court of Allahabad. The accused were awarded with punishments which were again challenged. The High Court affirmed the conviction of Hari Om, Sanjay and Saurabh and the rest three were acquitted of all the charges. Hari Om was given death penalty and Sanajy and Saurabh were given life imprisonment and a fine of Rs. 25,000/-.

All the investigation and statement of the prosecution witness were taken into account in the Supreme Court of India.

The counsel for the accused relied on the statement and investigation of prosecution witness, Ujjwal (PW5), who was son of one of the deceased, is of 5 years. It was submitted that the conviction of Hari Om on basis of PW5 will be hazardous. Also, the evidences provided were not enough to prove the guilt of other accused. The counsel relied on the judgments given in the case of Ram Shankar vs. State of Uttar Pradesh (AIR 1956 SC 441) and submitted that out of six named Accused charged of having committed the offence of dacoity, three Accused having being acquitted, whose acquittal was not challenged, the remaining three Accused could not be convicted Under Section 396 Indian Penal Code.

The learned Additional Soliciter General appearing on the behalf of state stated that the testimony of PW5, Ujjwal was completely reliable going by the rule of prudence. She relied on the judgement in the case of Suryanarayan vs. State of Karnataka ((2001) 9 SCC 129).

The Hon’ble court stated that caution should be taken while considering testimony of a child witness:

It was given in the case of Suryanarayan ((2001) 9 SCC 129) 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)

The court, while considering the testimony of PW5, highlighted many things in the testimony that couldn’t be relied upon. The court relied on the judgments given in the cases of Digambar Vaishnav ((2019) 4 SCC 522) and Radhey Shyam ((2014) 5 SCC 389) where the evidence of a child witness was not found to be inspiring. (Para 25)

For the evidences that included fingerprints, the court stated that:

The procedure used for lifting up of fingerprints from the crime scene was not reliable because of the method of packaging and keeping. It was given in the case of Badshah Khan and Anr. vs. State of Madhya Pradesh ((2010) 2 SCC 748) that evidence of fingerprint expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record. (Para 33)

The court held:

Apart from identification by PW5, there was no material evidences found against the three accused. So, the entire three appellant were given the benefit of doubt and were acquitted of all the charges. (Para 37)

The appeals were accepted.

View/download judgement: Hari Om vs. State of U.P.

Nishant Aryaman