Heard Sri Surya Bhan Singh, learned counsel for the revisionist through Video-Conferencing. Sri G.P. Singh, learned A.G.A. is present and perused the record.
None appears from the side of the opposite party no.2 despite service of notice.
This criminal revision has been preferred under Section 102 of the Juvenile Justice Care and Protection of Children Act against the judgment and order dated 20.11.2020 passed by the Special Judge (POCSO Ac)/ Additional Sessions Judge, Kannauj in Criminal Appeal No. 10 of 2020 (Suraj vs. State of U.P.) whereby dismissing the appeal and affirming the order dated 09.10.2020 passed by Juvenile Justice Board, Kannauj whereby the bail application no. 08 of 2019 filed in Case Crime No. 497 of 2020 under sections 302, 201, 420, 404, 411 IPC and section 3(2)(5) SC/ST ACT Police Station Kotwali Kannauj, District Kannauj by the accused-revisionist, has been rejected.
As per FIR, which has been filed by Shivam Balmiki, the prosecution case is that his sister Resham was married 15 years ago with co-accused Shanu Balmiki and out of wedlock five children were born. The said Shanu Balmiki had developed intimacy with some other lady and because of that, the co-accused Shanu Balmiki had deserted the sister of the informant and because of that reason, she was living with the informant. The informant was continuously putting pressure upon the co-accused Shanu Balimiki that he should keep his sister with him but he would not hear and started giving threats that he would eliminate the informant's sole family and his brother Dharmendra (deceased) who works in Nagar Palika, Kannauj would also be killed . On 20.08.2020, the dead body of his brother was found in Kannauj and on the basis of his appearance, he was recognized to be brother of the informant, therefore, suspicion is expressed in the FIR that the deceased has been killed by the informant's brother-in-law, co-accused Shanu Balmiki in collusion with others on 20.8.2020 in the night and later on his dead body was burnt. The FIR was lodged on 24.8.2020 after recovery of the dead body. In post-mortem report, the deceased is found to have suffered three lacerated wounds and burn injury all over his body and the cause of death is recorded as shock with asphyxia due to ante-mortem burn injuries.
Submission made by the learned counsel for the revisionist is that the revisionist is innocent. He was a small child of 13 years and 10 months at the time of occurrence as per the age determined by the Juvenile Justice Board vide order dated 06.10.2020, which is annexed at pages 57-58 of the paper book. It is further argued by the learned counsel for the revisionist that in fact the co-accused Shanu Balmiki, who was brother-in-law of the informant had killed the deceased and the revisionist being his friend has been falsely implicated. The amount which is said to have been recovered of Rs.8,000/- does not belong to him, the same has been planted. Further, it is argued by him that as per section 12 of the Juvenile Justice Act, a juvenile is required to be released on bail if there appears that his release is not likely to bring him in association with some known criminal or that he would not be exposed to moral, physical and psychological danger or the ends of justice would be defeated. He has also drawn attention to the report of District Probation Officer, Kannauj, which is annexed at pages 61 of the paper book, in which nothing adverse has been mentioned by the District Probation Officer against the revisionist. All these facts have been ignored by the Juvenile Justice Board as well as Appellate Court, hence the revisionist deserves to be allowed on bail.
Learned A.G.A. has opposed the release of revisionist on bail and has drawn attention to page-54 of the paper book which is G.D. N0. 062 dated 27.8.2020 in which it is recorded that the three accused were arrested including the accused-revisionist and they were searched and out of the right pocket of the revisionist , a sum of Rs.8,000/- was recovered and in confessional statement made by all the three accused jointly, it was revealed by them that initially friendship of the revisionist was developed with the deceased and later on other two-accused namely Manish Balmiki and Anuj Saxena also became friends of the deceased. The accused-revisionist had got knowledge to operate the mobile phone of the deceased and by operating the same, he had taken out money through ATM from the account of the deceased's mother because the said account was operated by the deceased and it had come in the knowledge of the revisionist and other co-accused that the deceased's mother had Rs.6.00 lacs in her account. In order to take out the entire amount, they decided to kill the deceased and after making him drunk, all the three had done him to death and thereafter he was burnt also. The recovery of the mobile phone is made in broken condition at joint pointing out of the three accused from a pond.
In consideration of bail of a juvenile, the seriousness of the offence is not to be seen. The three considerations, which are laid down in law, are that his release on bail should not bring him in association with any known criminal or that it should not expose him to any moral, physical and psychological threat or ends of justice should not be defeated by his release. No evidence has been produced before the forums below which could lead them to draw those conclusions. Both the forums have dismissed the bail application of the accused only on the basis of surmises and conjectures and on the nature of offence being serious.
Looking to the fact that there is no direct evidence against the revisionist and this appears to be a case of circumstantial evidence because a sum of Rs.8,000/- is said to have been recovered belonging to the mother of the deceased which is stated to have been taken out by the accused-revisionist by using ATM card of the mother of the deceased being operated by the deceased and thereafter the said phone which was belonging to the deceased, is said to have been thrown in a pond in broken condition, moreover, looking to the fact that the revisionist is found to be a juvenile of below 16 years in conflict with law at the time of occurrence and nothing having been found against him in the report of District Probation Officer, hence this is found to be a fit case for grant of bail.
In view of above, this court is of the view that this revision deserves to be allowed and is accordingly, allowed. The order of the Juvenile Justice Board dated 09.10.2020 as well as order dated 20.11.2020 of the appellate court are set aside.
Let the Juvenile revisionist-Suraj (Minor) be released on bail during trial on his natural guardian/mother Smt. Meena Kishor furnishing a personal bond of Rs.1,00,000/- and two sureties of the like amount to the satisfaction of the Juvenile Justice Board with condition that she shall not allow the revisionist to come in association with any known criminal and that on each and every date of trial, he shall also appear before the court concerned. In case, he makes any default, the prosecution shall be at liberty to move for cancellation of his bail.
Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the revisionist, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the revisionist is placed before the Court, the same would be entertained.
Order Date :- 12.4.2021 AU