Court No. - 67
Case :- CRIMINAL REVISION No. - 3704 of 2018 Revisionist :- Shivam (Juvenile) Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Jitendra Singh Counsel for Opposite Party :- G.A.,Rahul Saxena
Hon'ble Rahul Chaturvedi,J.
Counter and rejoinder affidavits have been filed by the respondent and the applicant respectively today, which are taken on record.
Heard learned counsel for the revisionist, private respondent, learned AGA and perused the record.
By means of the instant revision, the revisionist (Shivam s/o Surjeet) is seeking quashing of the judgement/order dated 21.08.2018 passed by the III-Additional Sessions Judge, Court No. Shahjahanpur in Criminal Appeal No. 54 of 2018 (Shivam v. State of U.P.) whereby the revisional court has affirmed the order dated 11.07.2018 passed by the Juvenile Justice Board, Shahjahanpur, whereby the bail of the revisionist has been rejected in Case No. 38 of 2018 (State v. Shivam) arising out of Case Crime No. 207 of 2018, under sections 302, 201, 376, 342 IPC and 3/4 Protection of Children from Sexual Offences Act, P.S. Nigohi, District Shahjahanpur.
This Court has perused the record and both the aforesaid orders with caution. It is indeed shocking and surprising that except the high sounding in the judgement and order dated 21.08.2018, the learned revisional court, has failed to apply its judicial mind and nothing is borne out in terms of the judicial manifest In the gamut of the circumstances, the fact remains that the FIR was registered by mother of the deceased under sections 302, 201, 342 and 3/4 Protection of Children from Sexual Offences Act on the very next day of the incident against unknown persons mentioning therein that after the demise of her husband, she got married with some other person and her daughter (Deepa) was residing with her elder uncle (Tau). On 24.03.2018 an information was received by her that her minor daughter Deepa (aged 15 years) has died. Thereafter, soon she rushed to the place of the occurrence where she saw her daughter dead body lying on a bed. At that time, the dead body was having sign on her neck, and bruises of finger nails on face, injuries below waist and her clothes were torn. The informant was restrained from going to the Police Station and in front of her eyes Siya Ram, her elder brother-in-law (Jeth) forcibly burried the dead body of Deepa. In the aforesaid FIR, the informant has also raised suspicion that she might have been raped, thereafter killed. There are five ante mortem injuries over the cadaver of Deepa and cause of death was opined to be due to ante mortem head injuries. The police thereafter started investigating the matter and found no cogent evidence to implicate the applicant except the confessional statement recorded under section 161 Cr.P.C. of Sukhdesh, who is a co-accused of the incident.
It is also evident from the circumstance of the case, that there is no credible material collected by the Investigating Officer showing any specific involvement of the revisionist in the commission of the offence. The entire prosecution strongly hinges upon broken links of circumstantial evidence and unfounded allegations of alleged suspicion of the informant. The police, except statement recorded under section 161 Cr.P.C., of the witnesses, has miserably failed to collect any other material establishing even semblance of involvement of the revisionist's in commission of the heinous crime. Moreover, the revisionist is the real nephew (Bhanja) of the informant and it is unlikely that he would commit the murder of his own cousin."
The Juvenile Justice Board has examined the revisionist and, on the basis of the medical report, calculated his age to be 14 years and 11 months on the date of the incident. This medical report (annexure as 7 to the petition) seems to be cryptic and appears to be mere a table work, since the juvenility. For ready reference the relevant rules for determination of juvenility under law.
The manner in which the inquiry for determination of the age of such person shall be conducted, has been given in sub section (2) of section 94 of the Juvenile Justice (Care and Protection of Children Act, 2015, which reads as follows:
"94 (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board;
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
Thus the revisional court has ignored the aforesaid Rules provided under Juvenile Justice (Care and Protection of Children Act, 2015 and blantantly erred in following the toes of the court below, while affirming its order dated 11.07.2018 passed by the Juvenile Justice Board, Shahjahanpur.
In the aforesaid backdrop, the order impugned dated 21.08.2018 passed by the III-Additional Sessions Judge, Court No. Shahjahanpur in Criminal Appeal No. 54 of 2018 (Shivam v. State of U.P.) is hereby quashed.
Let the revisionist Shivam, through natural guardian father-Surjeet be released on bail in the aforesaid case crime number on furnishing a personal bond with two heavy sureties of his aforesaid father each in the like amount to the satisfaction of the Juvenile Justice Board, Jhansi with an undertaking that in case the revisionist is released on bail and is given in their custody they will not create any situation which will bring the revisionist into association with any known criminal or expose to him moral, physical and psychological danger or any situation when the revisionist may repeat the offence in question and they will work for improvement of the revisionist.
Accordingly, the present revision is allowed.
Order Date :- 23.1.2019 shailesh