On 19.08.1990, the appellant Chat Pal was found wearing one HMT Supria wrist watch on his wrist.However, we find that Exhibit PW21/B, which is the personal search memo of the very same appellant Chat Pal, does not mention any watch being recovered on the personal search being conducted.Exhibit PW21/G, which is a seizure memo, indicates that Narain was wearing the HMT watch on his left wrist, but Exhibit PW21/A, which is the personal search memo, does not mention any watch and only a sum of ` 20/- is said to have been found on the person of the appellant Narain.Here again, the witnesses of the seizure memo and the personal search memo are the same, namely, SI Ram Kanwar and HC Surender Singh.Similarly, in the case of the appellant Chet Ram, we find that the seizure memo Exhibit PW22/E mentions a gold ring with the words Darshan Lal engraved on it as well as a rexine purse containing ` 550/-.It is also mentioned in the seizure memo that the gold ring was worn by Chet Ram on the ring finger of his left hand.However, Exhibit PW22/A, which is the personal search memo of the same date, that is, 30.07.1990, has only a reference to a sum of ` 17/- in cash plus one bus ticket worth ` 20/- and one dagger.It is, therefore, clear that the personal search memo is at complete variance with the seizure memo in the case of Chet Ram also as in the case of Chat Pal and Narain.AND + CRL.A. 332/1997 CHET RAM ... Appellant versus STATE ... Respondent AND + CRL.A 236/1998 NARAIN ... Appellant versus STATE ... Respondent Advocates who appeared in this case:For the Appellants : Mr Ajay Verma with Mr Gaurav Bhattacharya For the Respondent/State : Ms Richa Kapur CORAM:-HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE MANMOHAN SINGHWhether Reporters of local papers may be allowed to see the judgment?2. To be referred to the Reporter or not?Whether the judgment should be reported in Digest? Yes BADAR DURREZ AHMED, J (ORAL)These three appeals are being disposed of together by a common judgment inasmuch as they arise out of the same FIR and are directed against the common judgment dated 10.07.1997 passed by the CRL.The three appellants, namely, Chet Ram, Chat Pal @ Sat Pal and Narain along with Chakori Lal were charged under Sections 120B, 302 read with 120B, 392 read with 120B IPC.However, the Trial Court acquitted Chakori Lal of all charges.We may also point out that when the charge-sheet was filed, one Lakhan Pal was also named as an accused but he passed away before the framing of charges.The appellant Chet Ram, Narain and Chat Pal were also charged in the alternative under Sections 302 read with 34, 392 read with 34 and 394 IPC.By virtue of the impugned judgment, the appellants Chet Ram, Narain and Chat Pal @ Satpal have been convicted for having committed the offences under Sections 302 read with 34, 392 read with 34 and 394 IPC.All the three accused were awarded a sentence of rigorous imprisonment for five years and a fine of ` 1,000/- each for the offence under Section 392 read with 34 IPC and in default of payment of the fine, the appellants were also required to further undergo rigorous imprisonment for one year.In respect of the offence under Section 394/34 IPC, each of the appellants were sentenced to rigorous imprisonment for seven years as well as were liable to pay a fine of ` 2,000/- and in default whereof, they were to undergo rigorous imprisonment for two years.With regard to the offence under Section CRL.A. Nos.471/97, 332/97& 236/98 Page No.2 of 20 302 read with 34 IPC, each of the appellants were sentenced to undergo rigorous imprisonment for life and also to pay a fine of ` 5,000/- each and in default of payment thereof to further undergo rigorous imprisonment for three years.The benefit of Section 428 Cr.P.C was to be given to the appellants and their sentences were to run concurrently.The appellants have been convicted on the basis of circumstantial evidence.In the alleged incident, which is said to have taken place on 23.07.1990, Smt. Kamla Kakkar was found dead in her house by her daughter PW1 Renuka Sethi at about 1:45 pm.It is on the basis of her statement Exhibit PW1/A that the ruqqa and subsequently the FIR was registered.The case of the prosecution was that the appellants along with Chakori Lal (since acquitted) and Lakhan Pal (since deceased) were doing some construction work at the residence of the said Smt. Kamla Kakkar and that with the intention of committing robbery, they committed the murder of Smt. Kamla Kakkar, who was alone in the house when the incident took place.The prosecution has sought to bring home the conviction on the basis of the testimonies of PW5 Darshan Lal Kakkar, PW10 Rakesh Kakkar, PW1 Renuka Sethi and PW4 Surjeet Kaur (Chawla).Apart from the testimonies of these witnesses, the prosecution has also sought to prove its case by virtue of the alleged recoveries made from the appellants.It is alleged that one CRL. A. Nos.471/97, 332/97& 236/98 Page No.3 of 20 HMT watch of Supria make was recovered from Chat Pal; one gold ring, which had Darshan Lal engraved in it, was allegedly recovered from Chet Ram and one HMT gold-plated stainless steel watch was said to have been recovered from the appellant Narain.On the basis of the testimonies of PW5 and PW10, which were regarded as the last seen evidence and on the basis of the supporting and corroborative testimonies of PW1 Renuka Sethi and PW4 Smt. Surjit Kaur as well as on the basis of the alleged recoveries made from the said appellants, the prosecution has attempted to bring home the guilt of the said appellants in the said offence.Only a sum of ` 20/- is said to have recovered at the time of the conduct of the personal search.The witnesses of the seizure memo Exhibit PW21/E and the personal search memo Exhibit PW21/B are the same, namely, SI Ram Kanwar and HC Surender Singh.A. Nos.471/97, 332/97& 236/98 Page No.4 of 20 Therefore, we are in agreement with the submission made by the learned counsel for the appellants that the recovery of the said watch becomes very doubtful.While the seizure memo says that he was wearing the watch, the personal search memo does not disclose any watch.The CRL.A. Nos.471/97, 332/97& 236/98 Page No.5 of 20 witnesses to the seizure memo in the case of Chet Ram as also the personal search memo were also the same, namely, SI Manohar Lal and SI Ram Kanwar.Considering the aforesaid contradictions between the seizure memo and the personal search memo, as also the fact that the said articles were not recovered pursuant to any disclosure but were alleged to have been found on the persons of the appellants, we feel that no reliance can be placed on the said recoveries as they appear to be extremely doubtful.Consequently, the question of identification of these articles at the instance of PW5 Darshan Lal Kakkar is also of no relevance.This leaves us with the testimonies of PW5, Darshan Lal Kakkar and PW10 Rakesh Kakkar, who have been produced in the witness box as the last seen witnesses.PW5 Darshan Lal Kkkar in his testimony has clearly stated that work had been going on at his flat and one Chakori Lal had been fetched by his son Rakesh Kakkar and work had been done for about eight days.Chakori Lal had brought the other accused for the purposes of the said construction work and it was Chakori Lal who had supervised the work.However, since rains had started, the work had been discontinued.He further testified that about four days prior to 23.07.1990, at the instance of Chat Pal, work was resumed under the said flat.He stated that on that day at about 10:30 CRL.A. Nos.471/97, 332/97& 236/98 Page No.6 of 20 am, Chat Pal @ Satpal had come to his flat and had told him that he could get the work completed otherwise they would be going to their village.The witness further stated that considering the fact that these persons were already known to him, he thought it better to get the work completed from them and as such, he told Chat Pal @ Sat Pal to bring his labour and to complete the job.At about 11 am, Chat Pal brought with him Narain, Lakhan Pal and Chet Ram and they started doing their work in his flat.He further stated that soon thereafter, Chakori Lal also came to his flat and after talking to Chat Pal, Narain, Chet Ram and Lakhan Pal went away.He stated that thereafter, he also left his flat leaving Chat Pal, Narain, Chet Ram and Lakhan Pal at his premises besides his wife Kamla Kakkar and his son Rakesh Kakkar, who was also present at the flat.He had left his flat to attend his work at Patiala House.The witness also stated that on the same day, that is, on 23.07.1990 in the afternoon, he received information that his wife Kamla had been murdered.PW10 Rakesh Kakkar had corroborated whatever had been stated by his father PW5 Darhsan Lal Kakkar.He further stated that he remained in his house up to 11:45 am on 23.07.1990 and that his father remained in the house up to 11:30 am and then went to Patiala House Courts.After 11:45 am, he left the house and went to attend his job.He returned at 3 pm and at that point of time he saw a crowd had CRL.A. Nos.471/97, 332/97& 236/98 Page No.7 of 20 collected outside the house as well as inside and his sister Renuka Sethi met him there.He stated categorically in his examination-in-chief that when he left his house at 11:45 am, then, only his mother was in the house and the accused persons were working there.He stated that when he returned to the house at 3 pm his sister told him that their mother had expired and the police had taken her to hospital in a vehicle.In cross-examination, this witness, however, stated that he had not stated to the police that when he left his house at 11:45 am on the day of occurrence, then only his mother was in the house and the accused persons were working there.The learned counsel for the appellants sought to infer from this statement made in cross- examination that PW10 Rakesh Kakkar had made improvements in his statement before Court.However, we do not feel that such an inference can be drawn.The testimonies of PW5 and PW10 have to be read in conjunction and once that is done, it is apparent that the prosecution has been able to establish that on 23.07.1990 the appellants along with Lakhan Pal had started work at the flat of the deceased and that till 11:30 am on that date, both PW5 and PW10 along with Smt. Kamla Kakkar and the accused persons were present in the flat.At 11:30 am, PW5 Darshan Lal Kakkar left the flat to attend his work at Patiala House Courts and that at 11:45 am, PW10 Rakesh Kakkar also left the flat leaving his mother alone with the accused persons who were doing construction work in the said flat.A. Nos.471/97, 332/97& 236/98 Page No.8 of 20 PW10 is the witness who last saw his mother alive and at that point of time, she was alone in the flat in the company of the accused persons who were doing construction work.The next important witness is PW1 Renuka Sethi, who stated that as usual she used to have lunch with her mother at the said flat.She reached there at 1:45 pm and found her mother to be dead.At that point of time, she became hysterical and raised an alarm whereupon, PW4 Smt. Surjeet Kaur also known as Smt. Chawla, who was residing in the ground floor, had apparently told her that Sat Pal and two others had come to the said flat.Although this part of the testimony is hearsay and no reliance can be placed thereon, it is clear that when PW1 Renuka Sethi arrived at the flat at 1:45 pm, her mother was dead.The time gap between Smt. Kamla Kakkar having been seen alive and when she was found dead was 11:45 am to 1:45 pm, which is only a period of two hours.When she was alive, Smt. Kamla Kakkar was in the flat along with the appellants, who were working there.The said appellants were supposed to work for the whole day but, when an opportunity was given to them under Section 313, Cr. P. C, they have not given any explanation as to why they were absent when PW1 Renuka Sethi arrived at the flat at 1:45 pm.In fact, each of the appellants has given a blank denial to all the circumstances which were put to them in the course of their making their Section 313 statements.A. Nos.471/97, 332/97& 236/98 Page No.9 of 20Coupled with this very important circumstance of the last seen evidence, is the fact that each of the appellants was absconding after the said incident.All of them, as mentioned above, refused the Test Identification Parade.In view of the foregoing, we do not find any fault with the decision of the trial court in returning a finding of guilt insofar as the appellants Chet Ram, Narain and Chat Pal @ Sat Pal are concerned.They have been rightly convicted under Section 302 read with Section 34 IPC.The matter, however, does not end here.We find that Chat Pal @ Sat Pal had made a plea that he was a juvenile before the trial court.Unfortunately, that plea got lost in the records of the trial and no finding was returned by the trial court, although the ossification report clearly suggested that he was only 14-15 years old.The order-sheet reveals that on 21.01.1991, as no report had been received, the Learned Additional Sessions Judge directed the Superintendent, Tihar to appear before the CRL.On 04.03.1991, the complainant had filed an application stating that the X-ray report should not be accepted and a prayer was made that the appellant Chat Pal be referred to the Board of some government hospital.The order dated 11.11.1991 records the factum of an application of treating Chat Pal as a juvenile.Then, we have an application of the Jail Superintendent dated 22.03.1996 stating that Chat Pal has been behaving abnormally and has become mentally upset and even had attempted committing suicide.A prayer was made that in case he committed or attempted to commit suicide, then the jail administration shall be placed in an embarrassing position.In the meanwhile, we find from the lower court record, that on 22.02.1991, Dr B. K. Dey, Medical Officer, Central Jail, Tihar, New Delhi had submitted a report with reference to the letter dated 05.01.1991 regarding age estimation of the appellant Chat Pal.It was returned that his age was between 14-15 years on 23.01.1992 according to the Department of Forensic Medicine, Maulana Azad Medical College, New Delhi conducted by Dr S. K. Khanna No. 32/91 dated 23.01.1991 at 12:30 pm.The age estimation report from Maulana Azad Medical College, New Delhi, Department of Forensic Medicine, dated 23.01.1991 is also on record and the opinion clearly CRL. A. Nos.471/97, 332/97& 236/98 Page No.11 of 20 shows that based on physical, dental and radiological findings, when taken together, the age of the person examined (Chat Pal) was between 14 and 15 years.It is, therefore, abundantly clear that as on 23.01.1991 Chat Pal was 14-15 years old, which would make him 13-14 years old on 23.07.1990, which is the date of the occurrence.Clearly, Chat Pal was a juvenile within the definition of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the said Act).When the said Act come into force, the impugned judgment and order on sentence had already been delivered / passed.Consequently, Section 20 of the said Act would be relevant for our purposes.Section 20, as amended up to date, reads as under:-Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this 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 this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.It is, therefore, clear that Chat Pal @ Sat Pal, being a juvenile in conflict with law, could have, in the maximum, suffered a detention for a period of three years only.But, from the nominal roll on record of the appellant Chat Pal, it appears that as on 02.03.2002, he had already been in custody for a period of 11 years, six months and 23 days and had also earned remission of 1 year, 4 months and 26 days.But, as he could not arrange for the surety, an application, being Crl.By an order dated 21.02.2003, the surety amount was reduced to ` 10,000/- and the requirement of the number of sureties was also reduced to one.Despite this, as the appellant Chat Pal @ Sat Pal was extremely poor, he could not arrange for the surety and moved another application, being Crl.M. A. 3178/2003, for modification of the said order dated 21.02.2003 for further reduction in the surety amount.This application was allowed by an order dated 19.12.2003 and the surety amount was reduced to ` 5,000/-.As the appellant Chat Pal @ Sat Pal was not being able to arrange even a surety of ` 5,000/-, CRL. A. Nos.471/97, 332/97& 236/98 Page No.17 of 20 an application, being Crl.M. A. 5875/2004 had been moved for reducing the surety amount to ` 1000/-.Unfortunately, this fact was not brought to the notice of the Court on 19.07.2004 when the Crl.M.A. 5875/2004 came up for hearing.On that day, the Court, however, rejected the application for any further reduction in the surety.This is when Chat Pal @ Sat Pal could not have been kept in detention for a period of more than three years by virtue of the provisions of the said Act. Consequently, while we uphold the finding that Chat Pal @ Sat Pal had committed the offence under Section 302/34 IPC, the sentence awarded to him is set aside.Since he could not have been kept in detention for a period of more than three years and because he has already been in custody for 13 years, 10 months and 27 days, Chat Pal @ Sat Pal cannot be kept in detention any further.He is to be set at liberty.In this case, an application had been moved claiming that Chat Pal @ Sat Pal was a juvenile and, in fact, the medical report was also available on record, but the trial court, unfortunately, did not pursue the matter any further.This sort of an attitude would result in a great travesty of justice.This Court had, by its order dated 21.04.2010, directed the concerned Additional Sessions Judge to initiate proceedings against all the three appellants as also proceedings under Section 446 Cr.P.C. against the sureties.In so far as the appellant Chat Pal @ Sat Pal is concerned, those proceedings are to be dropped.However, the same would continue in respect of the other two appellants so that they are apprehended and they are made to serve out the rest of their sentences.The appeals are decided accordingly.BADAR DURREZ AHMED, J MANMOHAN SINGH, J FEBRUARY 10, 2011 SR/P CRL.

Sections cited: Section 34 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 313 in The Indian Penal Code, Section 394 in The Indian Penal Code, Section 392 in The Indian Penal Code