Xxxxxxx Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2022)

Xxxxxxx Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2022)

Court No. - 91

Case :- CRIMINAL REVISION No. - 527 of 2022

Revisionist :- Xxxxxxx Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Raj Narayan Singh,Ashwini Kumar Ojha,Bhanu Dutt Pandey,Pradeep Kumar Mishra Counsel for Opposite Party :- G.A.,Vinay Kumar Pal

Hon'ble Mrs. Jyotsna Sharma,J.

Heard Sri Ashwini Kumar Ojha, learned counsel for the revisionist and Sri O.P. Mishra, learned AGA for the Staterespondent no.1 and perused the record.

This criminal revision has been filed for setting aside the judgment and order dated 09.12.2021 passed by Principal Magistrate Juvenile Justice Board, Chitrakoot and order dated 15.01.2022 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Chitrakoot in Criminal Appeal No.03 of 2022 affirming the order of J. J. Board declining bail to the juvenile in case crime no.135 of 2021, under Sections 452, 328, 376 and 506 I.P.C. and Section 66 Information Technology Act, P.S. Pahadi, District Chitrakoot.

As per prosecution case, the victim a woman about 38 years of age, was ravished by this juvenile in the night of 10.08.2021 after entering into her house by scaling the wall; at that time the woman was staying with her mother-in-law and father-in-law; it is stated in the F.I.R. that she was administered some intoxicating substance and she became unconscious; thereafter she was raped by the juvenile and her obscene video was prepared; she did not disclose the incident to her husband or anybody else as the juvenile threatened to publish obscene video and also threatened her life on same pretext. After about 25 days from the date of incident that obscene video somehow reached to her husband, thereafter she decided to lodge the F.I.R. The victim was medically examined. No external or internal injury was found on her person. Her statements under Sections 161 and 164 Cr.P.C. were recorded in which she supported the version of the F.I.R.

Finding the accused a juvenile matter was brought before

the J.J. Board where age determination enquiry was conducted and he was found aged about 17 years and five months on the date of occurrence. His bail application was rejected by the J.J. Board and the appeal filed on his behalf was also dismissed by the appellate court. Now the juvenile through his father and natural guardian is before this Court in this criminal revision.

It is contended on behalf of the revisionist that besides ignoring broader principles of law as applicable in the matter of bail to the juvenile and further ignoring the mandate of Section 12(1) of the J.J.Act, 2015, the J. J. Board as well as appellate court altogether ignored the relevant facts and circumstances of the case including the fact that the medical evidence refuted the F.I.R. version and that no reliable evidence was found to even make out a case under Sections 452, 328, 376 and 506 I.P.C. It is also contended that the victim is a married lady 39 years of age having six children and that it was not at all possible for a boy about 17 years of age to forcefully ravish her in her own house and not catching attention of persons staying in the same house. The story is fanciful and improbable and the juvenile has been implicated in this case with ulterior motive. It is also contended that no fact adverse to his release was found in the social investigation report and that the juvenile has no criminal history or no criminal tendencies, therefore, J.J.Board as well as the appellate court were not right in declining bail to the juvenile.

06. Learned AGA has opposed prayer for bail.

This fact is not disputed that in this case a incident which allegedly took place in the night of 10.08.2021 F.I.R. was lodged after a gap of one month and six days. The reason given by the victim herself in the F.I.R. for delayed lodging brings this incident as quite suspicious. The statement given by the victim to the I.O. under Section 161 Cr.P.C. cannot be believed as it gives a inherently weak story. This fact is also not disputable that social investigation report mentions nothing negative about the character and conduct of the juvenile. The people of the locality gave positive reactions about him. The juvenile has had no criminal history and is in custody since 21.09.2021 that is more than a year now.

I went through the order of J.J. Board. It appears that

J.J.Board believed the prosecution story in one sided manner for declining bail to the juvenile. I also went through the order of the appellate court. The appellate court concurred with the inference given by the J.J.Board and declined bail on the basis of certain presumptions and conjunctures. It appears that he had no previous criminal history. There is no material to suggest that in case he is released on bail, the ends of justice shall be defeated. Further there is no material to suggest that he may associate with persons of criminal antecedents or that he may be put to moral, physical or psychological danger.

In view of the above, especially, in view of the period of incarceration already undergone, the revision is allowed. The judgment and order dated 09.12.2021 passed by Principal Magistrate Juvenile Justice Board, Chitrakoot and order dated 15.01.2022 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Chitrakoot are hereby set aside.

Let the revisionist, minor "X' through his natural guardian/father Sushil Kumar resident of village Deval Chaura, police station Pahadi, District Chitrakoot, be released on bail in Case Crime No.135 of 2021, under Sections 452, 328, 376 and 506 I.P.C. and Section 66 Information Technology Act, P.S. Pahadi, District Chitrakoot upon his father Sushil Kumar furnishing a personal bond with two solvent sureties of his relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Chitrakoot subject to the following conditions:

(i) that the natural guardian/father Sri Sushil Kumar will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not indulge in any criminal activity;

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

(iii) The revisionist through guardian shall also 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;

(iv) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Chitrakoot on such periodical basis as the Juvenile Justice Board may determine.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court/J.J.Board shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order.

Order Date :- 24.11.2022

Asha

Digitally signed by ASHA Date: 2022.11.29 16:06:34 IST Reason: Location: High Court of Judicature at Allahabad