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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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