KALU @ AMIT Vs STATE OF HARYANA
Bench: AFTAB ALAM,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-001467-001467 / 2007
Diary number: 25968 / 2006
Advocates: LALITA KAUSHIK Vs
KAMAL MOHAN GUPTA
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1467 OF 2007
KALU @ AMIT … APPELLANT
Versus
STATE OF HARAYNA … RESPONDENT
WITH
CRIMINAL APPEAL NO. 868 OF 2008
JOGINDER & ANR. … APPELLANTS
Versus
STATE OF HARYANA … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. These two appeals, by special leave, can be disposed of
by a common judgment as they challenge the judgment and
order dated 11/7/2006 passed by the High Court of Punjab &
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Haryana whereby the High Court dismissed the criminal
appeal filed by the appellant - Kalu @ Amit (original accused
3) and the criminal appeal filed by appellants Joginder and
Varun Kumar (original accused 1 and 2 respectively)
challenging judgment and order dated 7/9/2000 delivered by
the Additional Sessions Judge, Rewari convicting them for
offence under Section 302 read with Section 34 of the Indian
Penal Code (for short, ‘the IPC’) and sentencing them to life
imprisonment. We shall refer to the accused wherever
necessary by their names, for the sake of convenience.
2. The case of the prosecution is that on 7/4/1999 PW-5
Ram Chander Yadav had gone to Ahir College, Rewari for
attestation of his certificates. He met PW-4 Karambir Yadav
there. At about 8.30 a.m., he went to Geography Department
of the college. Pushpinder (the deceased) was standing there.
The deceased asked PW-5 Ram Chander Yadav as to how he
was there. PW-5 Ram Chander Yadav informed him that he
was there as he had to get copies of his certificates attested.
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By that time, suddenly, the accused equipped with deadly
weapons came running towards the deceased, who was
standing in the company of PW-5 Ram Chander Yadav and
PW-4 Karambir Yadav. Kalu @ Amit dealt a sword blow on
the ‘takna’ (ankle) of the deceased. The deceased ran towards
the office of the Principal to save his life. PW-5 Ram Chander
Yadav ran behind him. Varun Kumar, who was also chasing
the deceased, dealt a blow with a sword on the leg of the
deceased. The deceased ran ahead. PW-5 Ram Chander
Yadav caught hold of Joginder and Varun Kumar. Kalu @
Amit showed him the sword. PW-5 Ram Chander Yadav then
set Joginder and Varun Kumar free. The deceased fell on the
ground in front of the office of the Principal. Joginder dealt a
sword blow on his forehead. Thereafter, all the accused ran
away from the place of occurrence by jumping over the
boundary wall of the college. PW-5 Ram Chander Yadav lifted
the deceased and placed him at some distance. PW-4
Karambir Yadav helped him in doing so. By that time college
boys gathered there. They arranged for a car by which PW-4
Karambir Yadav and PW-5 Ram Chander Yadav took the
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deceased in injured condition to the Civil Hospital, Rewari,
where he was declared dead.
3. PW-1 Dr. Sunita Garg, who was at the relevant time
posted as Medical Officer at the Civil Hospital, Rewari, sent
‘ruqa’ to the Station House Officer (SHO), Police Station,
Rewari informing him that Pushpinder was brought dead to
the hospital. On receipt of ‘ruqa’ PW-8 Raja Ram, SHO along
with other police personnel rushed to the Civil Hospital,
Rewari where he met PW-4 Karambir Yadav. PW-8 Raja Ram
recorded PW-4 Karambir Yadav’s statement which was treated
as FIR (PD/2). On the basis of the said FIR, investigation was
set into motion.
4. PW-1 Dr. Sunita Garg conducted the post mortem on the
deceased and opined that death was due to hemorrhage and
shock, as a result of head injury and injury to femoral vessels.
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5. Pursuant to the statements made by the accused on
16/4/1999, PW-10 Inspector Mahabir Singh recovered
‘khukhri’ from the upper shelf of the bed room of the house of
Joginder in Village Budhpur, ‘sword’ from the turi room of
Kalu @ Amit’s house in Village Budhpur and ‘knife’ from the
turi room of Varun Kumar’s house in Village Budhpur.
6. On completion of investigation, the accused were charged
for the offence punishable under Section 302 read with
Section 34 of the IPC. The prosecution, in support of its case,
examined as many as 10 witnesses. The accused denied the
prosecution case and claimed to be tried.
7. Upon perusal of the evidence, the Sessions Court
convicted and sentenced the accused as aforesaid. As stated
above, the criminal appeals filed by the accused were
dismissed by the High Court by the impugned order, hence,
these appeals.
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8. We have heard learned counsel for the accused as well as
learned counsel for the State. Learned counsel for the
accused submitted that the conviction is based solely on the
evidence of PW-5 Ram Chander Yadav, who claims that he had
witnessed the incident. However, his evidence is doubtful. He
is a chance witness. Besides, he is a disabled person. His
claim that he held two accused and let them free when Kalu @
Amit showed him sword, cannot be accepted because he has
only one hand. It was pointed out that PW-5 Ram Chander
Yadav’s name is not mentioned in the Daily Diary Register
(“DDR”). His claim that he had taken the deceased to hospital
is also doubtful because his name does not appear in the
hospital record. He is not a witness to the inquest
proceedings. If he had lifted the deceased, his clothes would
have been stained with blood but that is not so. The
Investigating Officer has stated that his clothes had no blood
stains. He has stated that bandage was put on the deceased
by the doctor, but the MLR indicates that there was no
bandage on the deceased. Besides the story that the accused
jumped over the wall and ran away is inherently improbable.
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Counsel submitted that PW-5 Ram Chander Yadav is,
therefore, a highly unreliable witness, whose evidence ought to
have been discarded. Counsel further submitted that the
discovery evidence is also suspect. The accused allegedly
made discovery statements. However, they retracted those
statements and made fresh statements pursuant to which the
weapons have allegedly been recovered. Counsel submitted
that the discovery statements have been created by the police
to suit the prosecution case. Counsel pointed out that PW-4
Karambir Yadav, who is stated to have lodged the FIR, has
turned hostile. Therefore, there was no credible evidence
before the court to convict the accused. In the circumstances,
the order of conviction and sentence deserves to be set aside.
Learned counsel for the State, on the other hand, supported
the impugned judgment.
9. We find no infirmity in the judgment of the High Court
which has rightly affirmed the trial court’s view. It is true that
the accused have managed to win over the complainant PW-4
Karambir Yadav, but the evidence of PW-5 Ram Chander
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Yadav bears out the prosecution case. It is well settled that
conviction can be based on the evidence of a sole eye witness if
his evidence inspires confidence. This witness has
meticulously narrated the incident and supported the
prosecution case. We find him to be a reliable witness. He is
a student; there is no challenge to this. He wanted to get his
certificates attested and, therefore, he had gone to Ahir
College, where the incident took place on the morning of
7/4/1999. There is nothing unusual or surprising about his
visit to Ahir College. It is wrong to describe him as a chance
witness. Assuming PW-5 Ram Chander Yadav is a friend of
the deceased, his testimony cannot be discarded on that
ground, particularly when his evidence appears to be natural
and credible. He is unlikely to implicate innocent persons in
the murder of his friend. Because his name is not found in
the DDR or in the hospital record and he was not a witness to
the inquest proceedings, it cannot be concluded that he was
not there at the place of incident or he did not take the
deceased to the hospital. It is pertinent to note that his name
appears in the FIR. Though the complainant has turned
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hostile, PW-8 SHO Raja Ram has spoken about recording of
the FIR. Nothing has been brought on record to establish
that PW-8 SHO Raja Ram harboured any grudge against the
accused and he wanted to falsely implicate them. Finding of
name of PW-5 Ram Chander Yadav in the FIR is of great
significance.
10. It is the case of the defence that PW-5 Ram Chander
Yadav has only one hand, therefore, his version that he held
the two accused and released them after Kalu @ Amit showed
him sword is false. PW-5 Ram Chander Yadav’s left arm is
upto elbow joint. Courage and strength are qualities which
differ from person to person and one cannot discount the
version of PW-5 Ram Chander Yadav on the basis of surmises.
It appears to us that while the complainant, because of lack of
courage resiled from his statement, PW-5 Ram Chander Yadav
has courageously stuck to it. This speaks volumes. It is
argued that PW-5 Ram Chander Yadav has stated that his
clothes were stained with blood, but PW-8 SHO Raja Ram has
stated to the contrary. We do not attach much importance to
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this. The Investigating Officer ought to have seized PW-5 Ram
Chander Yadav’s clothes. Because he has failed to do so,
obviously to cover up his inefficiency, he has come out with
the story that there were no blood stains on the clothes of PW-
5 Ram Chander Yadav. This court has repeatedly observed
that the court must not get influenced by the remissness or
inefficiency of the Investigating Agency and acquit the accused
if the core of the prosecution case is undented and
established. That will be putting a premium on inefficiency at
the cost of cause of justice. We find that in the instant case,
the core of the prosecution case or the substratum of the
prosecution case has remained intact.
11. It was also urged that PW-5 Ram Chander Yadav has
stated that a bandage was put on the deceased but the
evidence does not bear out the statement. This is really a
minor discrepancy, which does not affect the prosecution case.
So far as discoveries made at the instance of the accused are
concerned, it was argued that they are shrouded in suspicion
because the earlier statements were retracted by the accused.
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This submission has no merit. The trial court as well as the
High Court has rightly noted that the accused had tried to
mislead the Investigating Agency by making false statements.
No fault could be found with the discoveries. There is nothing
unusual in the accused jumping over the wall and running
away. They are young. They can easily cross over the wall by
jumping.
12. We must note a very distressing feature of this case.
During the trial, an attempt was made by the defence to
prejudice the trial by filing an application on 5/8/1999
through Ram Singh father of PW-5 Ram Chander Yadav
stating that PW-5 Ram Chander Yadav had not witnessed the
incident; that his name was cited because he is a friend of the
deceased and that the complainant had kidnapped him. The
trial court has noted that immediately after the application
was made, after the lunch break, PW-5 Ram Chander Yadav
was asked whether he had deposed under the pressure of the
police and the complainant and whether he was in the custody
of the complainant for the last three days. PW-5 Ram
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Chander Yadav denied this story. The trial court and the High
Court have rightly observed that this conduct of the accused
completely exposed them. We concur with this observation.
The accused made an unholy attempt to subvert the court
proceedings. In the circumstances, we are of the view that the
involvement of the accused in the offence of murder is rightly
held to be proved.
13. While we are inclined to confirm the conviction and
sentence of accused Joginder and Varun, the appeal of
accused Kalu @ Amit requires different treatment. A
contention was raised before this Court that accused-Kalu @
Amit was a juvenile at the time of the offence and he must be
given the benefit of the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000 (for short, ‘the Juvenile
Act’). In view of this, a direction was given to the District and
Sessions Judge, Rewari or some other Judicial Officer
nominated by him to submit a report as to the age of the
accused Kalu @ Amit. Accordingly, an inquiry was conducted
by Mr. R.S. Chaudhary, Additional Sessions Judge, Rewari.
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The report of Mr. Chaudhary dated 12/11/2011 is forwarded
to this Court by the District and Sessions Judge, Rewari. The
report states that on the basis of the oral as well as
documentary evidence, it is established that the date of birth
of accused Kalu @ Amit is 14/10/1981 and at the time of the
registration of FIR dated 7/4/1999 he was about 17 years, 5
months and 23 days’old. Thus, accused Kalu @ Amit was a
juvenile when the offence was committed. We have no
reason to disbelieve the report submitted by the Additional
Sessions Judge, Rewari, which is based on oral as well as
documentary evidence. Once it is held that accused Kalu @
Amit was a juvenile, when the offence was committed, the law
must take its course and he must be given the benefit of the
Juvenile Act.
14. Under Section 14 of the Juvenile Act, it is only the
Juvenile Justice Board (for short, “the Board”) which can
conduct an inquiry as to whether a juvenile has committed the
offence or not. Even if the Board comes to the conclusion that
a juvenile has committed an offence, he cannot be sentenced
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and sent to a prison. Section of 15 of the Juvenile Act states
what order can be passed regarding a juvenile who has
committed an offence. Under Section 15(g), the Board may
direct the juvenile to be sent to a special home for a period of
three years. Under the proviso, the Board may, for reasons to
be recorded, reduce the period of stay to such period as it
thinks fit. Section 16 forbids the court from sentencing a
juvenile and committing him to prison. Proviso to Section 16
states that where a juvenile who has attained the age of 16
years has committed an offence and the Board is satisfied that
the offence committed is so serious in nature or that his
conduct and behaviour have been such that it would not be in
his interest or in the interest of other juvenile in a special
home to send him to such special home and that none of the
other measures provided under the Juvenile Act is suitable or
sufficient, the Board may order such a juvenile to be kept in
such place of safety and in such manner as it thinks fit and
shall report the case for the order of the State Government.
Under sub-Section (2) of Section 16 on a report received from
the Board under sub-Section (1), the State Government may
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order that such juvenile may be kept under protective custody
at such place and on such conditions as it thinks fit. However,
the period of detention shall not exceed in any case the
maximum period provided under Section 15 i.e. the period of 3
years.
15. Section 17 says that no proceeding can be instituted and
no order shall be passed against a juvenile under Chapter VIII
of the Criminal Procedure Code. Section 18 forbids a joint
trial of a juvenile and a person who is not a juvenile. Section
19 makes it clear that a juvenile who has committed an
offence and has been dealt with under the provisions of the
Juvenile Act shall not suffer disqualification, if any, attached
to a conviction of an offence. Sub-Section (2) of Section 19
goes a step further. It states that in case of conviction, the
Board shall make an order directing that the records of such
conviction shall be removed after the expiry of the period of
appeal or a reasonable period as prescribed under the rules,
as the case may be.
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16. Section 20 makes a special provision in respect of
pending cases. It states that notwithstanding anything
contained in the Juvenile Act, all proceedings in respect of a
juvenile pending in any court in any area on the date on which
Juvenile Act comes into force in that area shall be continued
in that court as if the Juvenile Act had not been passed and if
the court finds that the juvenile has committed an offence, it
shall record such finding and instead of passing any sentence
in respect of the juvenile forward the juvenile to the Board
which shall pass orders in respect of that juvenile in
accordance with the provisions of the Juvenile Act as if it had
been satisfied on inquiry under the Juvenile Act that the
juvenile has committed the offence. The Explanation to
Section 20 makes it clear that in all pending cases, which
would include not only trials but even subsequent proceedings
by way of revision or appeal, the determination of juvenility of
a juvenile would be in terms of clause (l) of Section 2, even if
the juvenile ceased to be a juvenile on or before 1/4/2001,
when the Juvenile Act came into force, and the provisions of
the Juvenile Act would apply as if the said provision had been
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in force for all purposes and for all material times when the
alleged offence was committed. As regards Explanation to
Section 20 of the Juvenile Act, it would be appropriate to
quote observations of this Court in Hari Ram v. State of
Rajasthan & Anr. (2009) 13 SCC 211 . The observations
read thus:
39. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1/4/2001, when the Juvenile Justice Act, 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.”
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17. It is clear, therefore, that the Juvenile Act is intended to
protect the juvenile from the rigours of a trial by a criminal
court. It prohibits sentencing of a juvenile and committing
him to prison. As its preamble suggests it seeks to adopt a
child-friendly approach in the adjudication and disposition of
matters in the best interest of children and for their ultimate
rehabilitation.
18. The instant offence took place on 7/4/1999. As we have
already noted Kalu @ Amit was a juvenile on that date. He
was convicted by the trial court on 7/9/2000. The Juvenile
Act came into force on 1/4/2001. The appeal of Kalu @ Amit
was decided by the High Court on 11/7/2006. Had the
defence of juvenility been raised before the High Court and the
fact that Kalu @ Amit was a juvenile at the time of commission
of offence had come to light the High Court would have had to
record its finding that Kalu @ Amit was guilty, confirm his
conviction, set aside the sentence and forward the case to the
Board and the Board would have passed any appropriate order
permissible under Section 15 of the Juvenile Act (See Hari
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Ram). As noted above, the Board could have sent Kalu @
Amit to a Special Home for a maximum period of three years
and under Section 19, it would have made an order directing
that the relevant record of conviction be removed. Since on
the date of offence, Kalu @ Amit was about 17 years, 5 months
and 23 days of age, he could have been directed to be kept in
protective custody for 3 years under proviso to Section 16 as
the offence is serious and he was above 16 years of age when
the offence was committed. But he certainly could not have
been sent to jail. Since, the plea of juvenility was not raised
before the High Court, the High Court confirmed the sentence
which it could not have done. None of the above courses can
be adopted by us, at this stage, because Kalu @ Amit has
already undergone more than 9 years of imprisonment. In the
peculiar facts and circumstances of the case, therefore, we
quash the order of the High Court to the extent it sentences
accused Kalu @ Amit to suffer life imprisonment for offence
under Section 302 read with Section 34 of the IPC. After
receipt of report from Additional Sessions Judge, Rewari, vide
order dated 14/12/2009, we had ordered that the Kalu @ Amit
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be released on bail. If he has availed of the bail order, his bail
bond shall stand discharged. If he has not availed of the bail
order, the prison authorities are directed to release him
forthwith, unless he is required in some other case. Accused
Kalu @ Amit shall not incur any disqualification because of
this order. Criminal Appeal No.1467 of 2007 filed by the
accused Kalu @ Amit is allowed to the above extent.
19. We dismiss Criminal Appeal No.868 of 2008 filed by
accused Joginder and Varun Kumar.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J. (RANJANA PRAKASH DESAI)
NEW DELHI, AUGUST 17, 2012.
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