Case: Kalu @ Amit Vs. State Of Haryana

2. The case of the prosecution is that on 7/4/1999Ram Chander Yadav had gone to Ahir College, Rewari for attestation of his certificates.He metKarambir Yadav there. At about 8.30 a.m., he went to Geography Department of the college. Pushpinder (the deceased) was standing there. The deceased askedRam Chander Yadav as to how he was there.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 ofRam Chander Yadav andKarambir Yadav. Kalu @ Amit dealt a sword blow on the(ankle) of the deceased. The deceased ran towards the office of the Principal to save his life.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.Ram Chander Yadav caught hold of Joginder and Varun Kumar. Kalu @ Amit showed him the sword.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.Ram Chander Yadav lifted the deceased and placed him at some distance.Karambir Yadav helped him in doing so. By that time college boys gathered there. They arranged for a car by whichKarambir Yadav andRam Chander Yadav took the deceased in injured condition to the Civil Hospital, Rewari, where he was declared dead.3.Dr. Sunita Garg, who was at the relevant time posted as Medical Officer at the Civil Hospital, Rewari, sentto the Station House Officer (SHO), Police Station, Rewari informing him that Pushpinder was brought dead to the hospital. On receipt of8 Raja Ram, SHO along with other police personnel rushed to the Civil Hospital, Rewari where he metRaja Ram recordedstatement which was treated as FIR (PD/2). On the basis of the said FIR, investigation was set into motion.4.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,Inspector Mahabir Singh recoveredfrom the upper shelf of the bed room of the house of Joginder in Village Budhpur,from the turi room of Kalu @house in Village Budhpur andfrom the turi room of Varunhouse 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.

Reasoning: 9. We find no infirmity in the judgment of the High Court which has rightly affirmed the trialview. It is true that the accused have managed to win over the complainantKarambir Yadav, but the evidence ofRam 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. AssumingRam 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,SHO Raja Ram has spoken about recording of the FIR. Nothing has been brought on record to establish thatSHO Raja Ram harboured any grudge against the accused and he wanted to falsely implicate them. Finding of name ofRam Chander Yadav in the FIR is of great significance.10. It is the case of the defence thatRam 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.left arm is upto elbow joint. Courage and strength are qualities which differ from person to person and one cannot discount the version ofRam Chander Yadav on the basis of surmises. It appears to us that while the complainant, because of lack of courage resiled from his statement,Ram Chander Yadav has courageously stuck to it. This speaks volumes. It is argued thatRam Chander Yadav has stated that his clothes were stained with blood, butSHO Raja Ram has stated to the contrary. We do not attach much importance to this. The Investigating Officer ought to have seizedclothes. 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 ofRam 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.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.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 aapproach 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.