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Ashish Kumar (Juvenile) Through … vs State Of U.P. & Another on 28 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 28

Case :- CRIMINAL REVISION No. – 39 of 2020

Revisionist :- Ashish Kumar (Juvenile) Through Father Om Prakash Lodh

Opposite Party :- State Of U.P. Another

Counsel for Revisionist :- Girish Kumar Pande,Akhilesh Kumar Srivastava,Lalit Kishore Pandey,Pawan Kumar Mishra,Prashant Pandey

Counsel for Opposite Party :- Govt. Advocate,Neeraj Trivedi

Hon’ble Mohd. Faiz Alam Khan,J.

1. The present Revision has been filed against the Judgement and order dated 03.01.2020 passed by Additional Sessions Judge, Court No.15, Special Judge, POCSO Act, Lucknow in Criminal Appeal No. 363 of 2019 (Ashish Kumar Vs. State of U.P.) under Sections 376 of IPC and 3/4 of POCSO Act whereby appeal filed by the revisionist has been dismissed confirming the bail rejection order dated 19.11.2019 passed by Juvenile Justice Board, Lucknow arising out of Case Crime No. 260 of 2019 under Sections 376 I.P.C. and 3/4 of POCSO Act Police Station Banthara, District Lucknow and also to release the revisionist in the custody of his guardian/father.

2. The brief facts giving rise to this Revision are that an FIR was lodged by opposite party no.2 on 17.07.2019 at 01:40 hours stating therein that the juvenile on 16.07.2019 at about 02:00 pm overpowered his niece and committed rape upon her and when elder brother of the informant namely Ganga Prasad intervened on the alarm alarm raised by victim, the juvenile fled away from the scene. Victim was medically examined and her statements under Sections 161 and 164 Cr.P.C. were recorded. and thereafter, chargesheet under above mentioned sections were filed against the juvenile. The prayer of bail of the revisionist has been rejected at first by the Juvenile Justice Board, Lucknow and secondly by the Appellate Court, Lucknow. Aggrieved thereby instant Revision has been preferred.

3. Heard Sri Lalit Kishore, learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record.

4. Learned counsel for the revisionist has submitted that the revisionist has not committed any offence and he has been falsely implicated in the present case. The juvenile has been declared 14 years and 11 days of age by the order dated 22.10.2019 of Juvenile Justice Board and the same order has not been challenged at any higher forum and the same has become final, therefore, the revisionist is entitled for the beneficial provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘Juvenile Justice Act’). It is further submitted that the whole story of the prosecution as stated in the FIR as well as in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. could not be believed as the same is not corroborated with the medical evidence.

5. Highlighting the above facts, it is further submitted that on the next day of alleged incident the victim was medically examined and no injury of any kind has been found on her person nor any spermatozoa or living or dead or any other abnormal finding has been found. It is further submitted that as per the ossification test, the age of the victim has been assessed as 18 years while in her statement recorded under Section 161 Cr.P.C. she claimed herself to be a student of Class 7th while in her statement recorded under Section 164 Cr.P.C. she has stated herself to be a student of Class 9th and as per educational certificate of the victim pertaining to Class 7th, her date of birth has been stated as 08.11.2006. It is also submitted that victim is of mature intellect and by any stretch of imagination the educational certificate wherein the age of victim is shown as 08.11.2006 could not be believed as she in her statement recorded under Sections 161 and 164 Cr.P.C. had taken contrary stand with regard to the class wherein she was allegedly studying. It is further submitted that even if the case of the prosecution is taken on its face and the manner in which the incident alleged to have happened would reveal that the crime has not been committed in a brutal manner and that would at the most be termed as offence committed by a juvenile offender. The juvenile is in confinement since 02.08.2019 and also not having any criminal history and his next friend, his father namely Om Prakash Lodh undertakes that in case the bail is granted to the juvenile he will take due care of him and will not allow him to join the company of criminals and will keep him under his strict supervision and control.

6. Learned AGA has opposed prayer for bail but he could not demonstrate from the record that there existed any of the grounds on which bail application of a juvenile could be rejected keeping in view the provisions of Section 12 of the Juvenile Justice Act.

7. Having heard learned counsel for the parties and having perused the record, this Court is to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of Section 12 of the Juvenile Justice Act. Section 12 of the Act lays down three contingencies in which bail could be refused to juvenile. They are:-

(1) if the release is likely to bring him into association with any known criminal, or

(2) expose him to moral, physical or psychological danger, or

(3) that his release would defeat the ends of justice.

Gravity of the offence has not been mentioned as a ground for rejection of bail in Section 12 of the Act.

8. The material available on record would show that the age of the victim is more than 18 years while her age as per the educational certificate is coming about 14 years. The prosecutrix appears to have made contrary statements in her statements recorded under Sections 161 and 164 Cr.P.C. pertaining to the class wherein she was studying at the time of incident. It is also evident that no injury of any kind has been found on the person of the prosecutrix when she was medically examined on the next day of incident. It has been vehemently submitted by learned counsel for the revisionist that the story which has been cooked up by the prosecutrix and her father, has not found support from the medical evidence while it has claimed by the prosecutrix that she was bleeding after the commission of the crime. However, no such abnormality has been noticed by the Doctor who has examined the prosecutrix. The age of the juvenile is about 14 years, therefore, the juvenile appears to be either of the same age as of the prosecutrix or may be younger than her. The manner in which the alleged offence has been committed could not be classified as the offence committed by a person having criminal intellect. The juvenile is detained in Children Welfare Home since 02.08.2019 and not having any other criminal case against him.

9. It is not in dispute that the revisionist is a juvenile and he is entitled to the benefits of the provisions of the Juvenile Justice Act. As per Section 12 of the Juvenile Justice Act prayer for bail of a juvenile can only be rejected ‘if there appear reasonable grounds for believing that the release of the juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would otherwise defeat the ends of justice.

10. In view of the above, the Revision is allowed. The impugned orders dated 03.01.2020 and 19.11.2019 are hereby set aside.

11. Let the revisionist Ashish Kumar involved in the aforesaid case crime be released on bail an undertaking by guardian-father that he will take proper care over the revisionist and he will not allow him to go in the company of known criminals or expose him to moral, physical or psychological danger and he will also file a personal bond and two reliable sureties each in the like amount to the satisfaction of concerned Court below with the following conditions:

(i)The revisionist shall not tamper with the evidence or threaten the witnesses;

(ii) The revisionist through guardian shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law;

Order Date :- 28.7.2021

Mohit

 

 

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