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 & 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. 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 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.
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.
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. 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 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 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 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. 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 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. 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
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 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.
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 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.”
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 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 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.
-----------------------
15
