Kalu @ Amit vs State Of Haryana

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.

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.

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.