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2016 DIGILAW 611 (JHR)

Kamala Devi v. State of Jharkhand

2016-04-18

RONGON MUKHOPADHYAY

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JUDGMENT : Rongon Mukhopadhyay, J. Cr.M.P. No. 110 of 2008 In this application, the petitioner has prayed for cancellation of bail as granted vide order dated 17.12.2007 passed in Cr. Rev. No. 884 of 2007 by this Court. Criminal Revision No. 613 of 2007 2. This revision application is directed against the judgment dated 5.7.2007 passed by Sri Sachindra Kumar Pandey, learned Additional Sessions Judge, F.T.C. No. 1, Palamau, Daltonganj in Criminal Appeal No. 50 of 2007, whereby and whereunder, the order dated 17.4.2007 passed by the Juvenile Justice Board (J.J. Board) in G.R. No. 1535 of 2006 (Haidernagar P.S. case No. 59/2006) has been set aside. 3. Since the result of Cr.M.P. No. 110 of 2008 is dependent on the ultimate decision of Cr. Rev. No. 613 of 2007 as such the revision application is being decided at first. 4. An F.I.R. was instituted being Haidernagar P.S. case No. 59 of 2006 in which it was alleged that opposite party No. 2 had fired at the husband of the petitioner several times which resulted in his death. 5. Initially the case was instituted for the offence punishable u/s 307 of the Indian Penal Code (I.P.C.) and Section 27 of the Arms Act, but after the death of the deceased Section 302 I.P.C. was also added. 6. The opposite party No. 2 at the time of his remand claimed himself to be aged less than 18 years and in support of his claim being juvenile certain documents were produced by him. The learned Chief Judicial Magistrate on receipt of the documents sent the entire records to the J.J. Board to ascertain the age of opposite party No. 2. After conducting an enquiry by examining witnesses and considering the documents produced by the opposite party No. 2, the J.J. Board vide order dated 17.4.2007 came to a conclusion that on the date of occurrence the opposite party No. 2 was not a juvenile. Aggrieved by the order dated 17.4.2007, the opposite party No. 2 preferred an appeal before the learned Sessions Judge, Palamau which was registered as Criminal appeal No. 50 of 2007 and vide judgment dated 5.7.2007 the order of the J.J. Board was set aside, whereby the opposite party No. 2 was declared a juvenile. Aggrieved by the order dated 17.4.2007, the opposite party No. 2 preferred an appeal before the learned Sessions Judge, Palamau which was registered as Criminal appeal No. 50 of 2007 and vide judgment dated 5.7.2007 the order of the J.J. Board was set aside, whereby the opposite party No. 2 was declared a juvenile. In the meantime, the opposite party No. 2 had also preferred an application for grant of bail which was rejected by the J.J. Board, Ranchi as well as by the learned Sessions Judge, Daltonganj, Palamau in Criminal Appeal No. 93 of 2007 against which the opposite party No. 2 preferred a revision before this Court in Criminal Revision No. 884 of 2007 in which opposite party No. 2 was granted bail vide order dated 17.12.2007 against which the petitioner has preferred Cr.M.P. No. 110 of 2008. 7. Heard Mr. Rajesh Kumar, learned counsel for the petitioner; Mr. Hardeo Prasad Singh, learned A.P.P. for the State and Mr. B. M. Tripathi, learned senior counsel appearing for opposite party No. 2. 8. It has been submitted by the learned counsel for the petitioner that the appellate court on mere surmises and conjecture has set aside the decision of the J.J. Board dated 17.4.2007. It has been submitted that the J.J. Board had rightly disbelieved the claim of the opposite party No. 2 with respect to juvenility, as the documents which were submitted were not beyond suspicion. Learned counsel further submits that the opposite party No. 2 is known as Brajesh Singh whereas in all the documents his name finds place as Amit Kumar Singh and this fact has been erroneously considered by the learned appellate court while coming to the conclusion that Brajesh Singh and Amit Kumar Singh are one and the same person. 9. Learned counsel further submits that the educational certificates also had overwriting and that too without signature of the competent authority and therefore such documents should not have been relied upon by the learned appellate court. It has further been submitted that therefore the judgment passed in Criminal Appeal No. 50 of 2007 be set aside and the bail granted to the opposite party No. 2 be cancelled as a consequence thereof. 10. Mr. It has further been submitted that therefore the judgment passed in Criminal Appeal No. 50 of 2007 be set aside and the bail granted to the opposite party No. 2 be cancelled as a consequence thereof. 10. Mr. B. M. Tripathi, learned senior counsel appearing for the opposite party No. 2 has submitted that the appellate court had passed its judgment on the evidence of the enquiry witnesses which established the fact that Brajesh Singh and Amit Kumar Singh are one and the same person. It has been submitted that even the charge-sheet which has been submitted by the police shows in the column of accused, the name of opposite party No. 2 as Brajesh Kumar alias Amit Kumar Singh. Learned senior counsel further submits that when after investigation the Investigating Officer (I.O.) has come to a conclusion with respect to the dual name of the opposite party No. 2 and since the said fact has been substantiated by the parents of the opposite party No. 2, the discrepancy has been set at rest. It has also been submitted that so far as the over writings and cuttings over some of the educational certificates are concerned admittedly such over writings are not over the date of birth and as per letter of the Headmaster of the School it was mistake on the part of the clerk, not to have signed over the correction made. Learned senior counsel thus submits that both the applications are liable to be dismissed. 11. The J.J. Board in its order dated 17.4.2007 had disbelieved the assertion of the opposite party No. 2 that Brajesh Singh and Amit Kumar Singh are one and the same person. It has also disbelieved the educational certificates submitted by the opposite party No. 2 in proof of his date of birth as there were some over writings and cuttings over the same. However, the appellate court in its judgment dated 5.7.2007 has considered the educational certificates and have come a conclusion that no such overwriting or correction has been made in the date of birth column of the opposite party No. 2. However, the appellate court in its judgment dated 5.7.2007 has considered the educational certificates and have come a conclusion that no such overwriting or correction has been made in the date of birth column of the opposite party No. 2. However, the appellate court seems to have overtly relied upon the evidence of E.W. 2 and E.W. 3 who are parents of the opposite party No. 2 and who had deposed that the opposite party No. 2 whose name is Brajesh Singh is also known by the name Amit Kumar Singh. The learned appellate court in absence of any corroborative evidence to substantiate the assertion made by E.W. 2 and E.W. 3 should not have come a conclusion that Brajesh Singh is also known as Amit Kumar Singh. Although reliance has been placed in the charge-sheet submitted by the I.O. showing the alias name of Brajesh Singh as Amit Kumar Singh, but from perusal of the case diary, there is no material to suggest as to on what basis the I.O. has come to such conclusion. It is quite natural that the parents of the opposite party No. 2 to give evidence in favour of their son, but even if it is assumed that Brajesh Singh is known as Amit Kumar Singh there has to be some corroborative evidence to suggest so. These factors have not been considered by the learned appellate court in its judgment. 12. Accordingly this application is allowed and the judgment dated 5.7.2007 passed by learned Additional Sessions Judge, F.T.C. No. 1, Palamau, Daltonganj in Criminal Appeal No. 50 of 2007 is hereby set aside and the matter is remanded back to the learned appellate court to pass a fresh order in accordance with law after considering the entire records pertaining to the said case. 13. It goes without saying that if the appellate court affirms the order passed by the J.J. Board dated 17.4.2007, the petitioner will be at liberty to pray for cancellation of bail of the opposite party No. 2. 14. In view of the aforesaid observations and directions while Criminal Revision No. 613 of 2007 is allowed, Cr.M.P. No. 110 of 2008 is disposed of.