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Allahabad High Court · body

2022 DIGILAW 1390 (ALL)

Ram Babu Vishwakarma v. State of U. P.

2022-09-01

MOHD.ASLAM

body2022
JUDGMENT : MOHD. ASLAM, J. 1. Heard Sri Tryambak Nath Mishra, learned counsel for appellant, Sri L.D. Rajbhar, learned A.G.A. for the State, Sri Mahabir Yadav, learned counsel for opposite party no. 2 and perused the record. 2. The instant criminal appeal has been preferred on behalf of appellant-juvenile under Section 101 of POCSO Act against the impugned order dated 19.5.2020 passed by learned Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad by which the 2nd Bail Application No. 1299 of 2020 moved on behalf of father of appellant for releasing him on bail and giving under the custody of his father was rejected. 3. The brief facts necessary for disposal of this appeal is that informant/opposite party no. 2 Deep Chand lodged a first information report alleging therein that on 9.8.2019 at about 12:00 ‘o’clock, his daughter victim X aged about 11 years was alone at the house and rest family members went to the field to plant paddy. His daughter went to take water from the hand pump installed at the Haata of his neighbor Ram Babu Vishwakarma son of Chhote Lal, who called his daughter at his house on the pretext of giving her water, when she went there, he forcibly dragged her into his room and committed rape upon her. She kept on protesting and shouting, while the appellant pacified victim X by pressing her mouth and told her Chamarin quietly go to home otherwise he will kill her and her family members. When the said incident was complained to Bhabhi and mother of appellant, they also abused complainant and said that if she complained about it anywhere, then his family members will not be able to show their faces in the society. 4. The informant supported the prosecution version in his statement recorded under Section 161 Cr.P.C. The wife of informant Smt. Amrawati also supported the incident in her statement recorded under Section 161 Cr.P.C. and also stated that she noticed the blood coming from the private parts of victim X and took her to the doctor, where doctor told her that some bad thing happened with her and advised her mother to ask from the victim X regarding bad deed happened with her. On asking, the victim X narrated the entire incident to her mother and family members, thereafter, she and her husband complained the incident to the Bhabhi and mother of appellant, they banished them after abusing and stated that whatever they liked they can do. The statement of victim X under section 161 Cr.P.C. was recorded during investigation in which she has supported the entire incident. She was medically examined on 15.8.2019 at 03:30 p.m. to 03:40 p.m. At the time of medical examination, the victim X told her age about 11 years. She narrated the entire incident to the doctor that on 9.8.2019 in the noon, she had gone to take water for cows and buffaloes from hand pump situated at the Haata of her neighbor Chhote Lal, where the appellant was present, she asked him to handle the hand pump, thereupon, he told that he will do it after finishing his food. Thereafter, the victim X was returning after taking water then the appellant requested her to give him water for drinking, upon which she gave him water and thereupon the appellant dragged her into the room and tied her legs and hands with lace of saari and forcibly committed rape upon her. After some time when the Bhabhi and mother of the appellant arrived there, the victim X narrated the entire incident to them, but they threatened her not to disclose the incident to anyone. Next day she also visited to Bhabhi of appellant on noticing that bleeding was continued, she stated to them regarding bleeding, thereupon they abused her and threatened to kill her and advised her to tell her family members that see sustained injury from hand pump. On returning to her house, she narrated to her mother regarding bleeding then her mother took her to the doctor and get her treatment, but she did not get any relief. Upon which, her mother took her to the house of her parents and get her treatment by another doctor, where she came to know that some bad deed happened with her. On inquiry, the victim X narrated the entire incident to her mother and family members. She was treated there for two days, thereafter, the first information report was lodged. The victim X stated that her legs and hands were tied by the appellant with lace of saari. On inquiry, the victim X narrated the entire incident to her mother and family members. She was treated there for two days, thereafter, the first information report was lodged. The victim X stated that her legs and hands were tied by the appellant with lace of saari. She has also stated to the doctor that threat to kill was extended. She has also stated that sexual intercourse was committed by the appellant. She has also told that the incident was taken place prior to seven days of her medical examination. Abrasion mark on outer surface of labia majora was found. Hymen was found torn, bleeding was present. On ossification test, the age of the victim X was found about 11 years and up to 16 years. The statement of victim X under Section 164 Cr.P.C. was recorded, wherein she has given details of the incident. The appellant was adjudged juvenile by Juvenile Justice Board, Prayagraj and his age was ascertained above 16 years and date was fixed for proceeding under Section 15 of Juvenile Justice Act. 5. It is submitted by learned counsel for the appellant that the date of birth of appellant is recorded as 13.4.2003 in High School Marksheet. It is further submitted that District Probation Officer, Prayagraj found nothing adverse against juvenile in the social report. It is further submitted that at the time of incident the appellant was 16 years 3 months and 28 days. It is further submitted that the Juvenile Justice Board, Prayagraj has adjudged the appellant juvenile vide order dated 13.12.2019 and found his age about 16 years. It is further submitted that in medical examination report of victim, the doctor has reserved his opinion regarding sexual intercourse after receipt of the report of Forensic Science Laboratory. It is further submitted that no spermatozoa was found in pathology report. It is further submitted that medical report of victim X not supported the version of the prosecution. It is further submitted that the appellant is in observation home since 16.8.2019. It is further submitted that the Investigating Officer after investigation has submitted charge-sheet against appellant on 10.10.2019 under Sections 376, 504, 506 I.P.C. 5/6 of POCSO Act and 3(2)(5) of SC/ST Act. It is also submitted that the appellant is a student and due to detention in observation home his entire educational career is being badly affected. It is further submitted that the Investigating Officer after investigation has submitted charge-sheet against appellant on 10.10.2019 under Sections 376, 504, 506 I.P.C. 5/6 of POCSO Act and 3(2)(5) of SC/ST Act. It is also submitted that the appellant is a student and due to detention in observation home his entire educational career is being badly affected. It is further submitted that the appellant has no criminal history except the present case. It is further submitted that the opposite party no. 2 is father of victim X, who has falsely implicated the appellant in the present case and the appellant is not neighbor of the informant. It is further submitted that according to medical report of victim X no injury has been found on her body. It is further clarified that the first bail application was filed before the court of Special Judge (SC/ST Act), which was dismissed as not pressed and thereafter the second bail application was moved before the court having jurisdiction of Special Judge (POCSO Act), which was rejected on merit by impugned order dated 19.5.2020. It is further submitted that there is contradiction in the statements of victim X under Sections 161 and 164 Cr.P.C. It is further submitted that from perusal of the first information report and evidence available on record, no case under Sections 376, 504, 506 I.P.C. 5/6 of POCSO Act and 3(2)(5) SC/ ST Act is made out. It is further submitted that the juvenile cannot be kept in observation home beyond 3 years. 6. Sri L.D. Rajbhar, learned A.G.A. for the State and Sri Mahabir Yadav, learned counsel for opposite party no. 2 have opposed the appeal against rejection of bail application by the court below and submitted that the age of the victim X at the time of occurrence was found about 11 years and up to 16 years. It is further submitted that at the time of medical examination, the victim X in her statements recorded under Sections 161 and 164 Cr.P.C. she has stated her age as 11 years and further stated that she was studying in Class-VIth. It is further submitted that at the time of medical examination, the victim X in her statements recorded under Sections 161 and 164 Cr.P.C. she has stated her age as 11 years and further stated that she was studying in Class-VIth. It is further submitted that while the appellant was taking food and asked her to give him water, she gave him water on trusting upon him, but he misused her trust and forcibly dragged her into the room and tied her both legs and hands with lace of saari and committed rape upon her forcibly and even on her protest he pressed her mouth and threatened her that if she disclosed the incident to anyone, he will kill her and her family members. It is also submitted that when she complained about incident to the Bhabhi and mother of appellant, they also threatened her not to disclose the incident to anyone. It is further submitted that next day she also visited to the Bhabhi of appellant on noticing of bleeding coming from her private parts and complained them, but they again abused and threatened to kill her and advised her to tell her family members that see sustained injury from hand pump. It is further submitted that under the circumstances, the alleged rape committed by appellant shows that if he is released on bail, it would defeat the ends of justice. It is further submitted that juvenile appellant has committed rape in well-planned manner by tying the hands and legs of the victim X with lace of saari. It is further submitted that in above circumstances the appeal is liable to be dismissed. 7. I have given thoughtful consideration to the contentions raised by learned counsel of the parties and perused the record. In this case the Juvenile Justice Board, Prayagraj has obtained the report from Dr. Pawan Kumar Paswan, MD regarding preliminary assessment into heinous offence by the court under Section 15 of Juvenile Justice (Care and Protection of Children), Act 2015, wherein it is reported that mental and physical ability to understand the consequences of offence by the juvenile is as such that he is able to understand the consequences of this Act. Pawan Kumar Paswan, MD regarding preliminary assessment into heinous offence by the court under Section 15 of Juvenile Justice (Care and Protection of Children), Act 2015, wherein it is reported that mental and physical ability to understand the consequences of offence by the juvenile is as such that he is able to understand the consequences of this Act. Thereupon, the Juvenile Justice Board has held that his mental and physical capacity is such that he knows the nature of offence and consequences of the Act and circumstances in which he has committed rape and was directed to be produced before the competent court. The Government by notification has invested the power of Children Court to the Special Judge (POCSO Act). The Probation Officer submitted the social inquiry report of the juvenile, copy of which is annexed as Annexure No. 7. It is also mentioned in the social report of the juvenile that there was no reason to commit the offence. For the purpose of deciding this appeal it is necessary to notice the increasing cases of crime committed by children in age group of 16-18 years in recent years and make the evidence that the current provision and system under Juvenile Justice (Care and Protection of Children) Act, 2015 for trial of such juvenile in serious illness offences after the assessment of the mental and physical condition to be tried by children court. Since the appellant is languishing in jail for offence punishable under Section 376, 504, 506 I.P.C. 5/6 of POCSO Act and 3(2)(5) of SC/ST Act, falls within the category of serious and heinous offences. Although remedy is available to juvenile for release on bail under Section 12 of the Act, which provides that the bail should be awarded to the person who are juvenile as a matter of right as the word “shall” has been used in the provision itself, giving a mandatory indication. On the other hand, the delinquent juvenile are allegedly involved in serious offence committed by them who have crossed the age of 16 and after the assessment by the Board with regard to their mental and physical capacity to commit such offence and ability to understand the consequences and the circumstances in which he has allegedly committed the offence has to be tried by Children Court as adult. 8. 8. The relevant portion of Section 18(3) of Juvenile Justice Act is reproduced herein-below: “(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.” 9. As per provision of Section 12 of Juvenile Justice Act, 2015, mandate to release the juvenile on bail except three conditions according to proviso attached to sub-section 1, which follows as under: “Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.” 10. In paragraph 4 of the statement of objects and reasons of Juvenile Justice Act (Care and Protection of Children) Act, 2015 it is stated that for the increasing cases of crime committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences. 11. The combined reading of Juvenile Justice Act and POCSO Act would be discretion of the Court which shall addition to those proviso provided under Section 12 of Juvenile Justice Act and also to take into account with regard to his mental, physical capacity, ability to understand and the gravity of that offence including his participation in crime and the circumstances under which he allegedly committed the particular grave and serious offence. All these factors are determinative factors while averaging the bail application of juvenile offender in the age group of 16-18, as it would be mockery of legislation and the object of the legislation would reduce naught. All these factors are determinative factors while averaging the bail application of juvenile offender in the age group of 16-18, as it would be mockery of legislation and the object of the legislation would reduce naught. The above legal position is laid down by Single Judge of this High Court in Radhika (Juvenile) vs. State of U.P. decided on 5.8.2019 in Criminal Appeal No. 4418 of 2019. Although the juvenile in conflict with law is detained in observation home since 16.8.2019, but keeping in view the facts and circumstances of the case and for achieving the object of Juvenile Justice (Care and Protection of Children), Act and the evidence available on the record, I find that if the appellant juvenile is released on bail it would defeat the ends of justice and the object of Act. In this case when the victim X complained to the mother and Bhabhi of appellant, they threatened her to meet dire consequences and also stated that if she disclosed anybody she and her family members will not be able to show their faces to the society. In above circumstances, I do not find it proper to release the juvenile on bail and give in custody of his father due to reasons mentioned above. Accordingly, the instant appeal is dismissed. 12. However, the concerned court below is directed to conclude the trial expeditiously, preferably, within a period of two months from the date of receipt of the certified copy of this order. 13. Let the lower court record be returned back to the concerned court below forthwith.