Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Section12/Bail To Juvenile/defence To Juvenile With Favourable Report Should Be Given Due Consideration/bail Allowed.
JUDGEMENT TITLE : Pushpendra @ Brij Bihari @ Pappi Vs. State Of U.P. & Another On 07/18/2011 By Allahabad High Court
CASE NO : CRIMINAL REVISION NO. 2226 OF 2011
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved


Criminal Revision No. 2226 Of 2011

Pushpendra @ Brij Bihari @ Pappi...................................Revisionist
Versus
State Of U.P.and Another..........................................Opposite Parties


Hon. Vinod Prasad, J

Pushpendra @ Brij Bihari @ Pappi, A Juvenile In Conflict With Law, Has Knocked The Door Of This Court U/s 53,Juvenile Justice(Care And Protection Of Children) Act 2000,seeking His Release On Bail In Crime No. 128/2010, U/s 498-A, 304-B IPC, And Section ¾ Of D.P. Act, P.S. Raya, District Mathura, And For That End Has Questioned The Sustainability Of Orders Passed By Juvenile Justice Board, Mathura,dated 16.3.2011 And Also By Lower Appellate Court/Sessions Court Mathura In Criminal Appeal No. 23 Of 2011, Pushpendra @ Brij Bihari @ Pappi Vs. State, Dated 19.5.2011.
Before Entering Into Merits Of Revision, Preceding Facts Generating This Revision Are Noted Below:-
Dharmawati (deceased), Sister Of Liladhar,(informant), Aged About 20 Years, Tied Her Nuptial Knot With The Revisionist On 18.5.2010 According To Hindu Customs And Rites. Although In That Marriage Rs. 51,000/- Cash, Fridge, Coloured T.V., Double Bed, Ring And Ornaments Were Given As Dowry But Her In-laws And Other Relatives Were Dissatisfied With It And They Were Persistently Demanding A Motor Cycle So Much So That During Marriage Ceremony In-laws Demanded A Bullet Motor Cycle And Rs. 50,000/- Cash And Refused To Perform Sapt-padi If Their Demands Were Not Fulfilled. However,at That Moment With Great Difficulty, With The Help And Intervention Of Villagers And Relatives Rs. 50,000/- Cash Were Handed Over To The In Laws And It Was Only After That They Allowed The Marriage Ceremony To By Completed.
After Entering Into In-laws House, Dharmawati Was Tortured And Harassed For Not Fulfilling Rapacious Demand And When She Came Back To Her Parental Home, She Narrated Her Torture And Harassment To The Informant And Her Other Relatives. She Informed Them That Revisionist, Her Mother-in-law Rajwati, Father-in-law Kedari, Sister-in-laws Smt. Shashi, Smt. Rani And Km. Deepa, All Were Demanding Cooler And Motor Cycle And She Had Apprehensions About Safety Her Life If Their Demands Were Not Fulfilled. After Gaining Knowledge About The The Torture And Harassment Informant Along With His Uncle Gopal Singh And Other Relative Brother Jagdish, Went To In-laws House On 1.3.2010 And Had A Dialogue With Them And He Was Assured By The In-laws That Hence Forth Dharmawati Will Be Treated Well. On The Said Assurance Informant Again Sent Dharmawati To Her In-laws House On 5.3.2010, But Persistent Demand For Dowry Continued. Whenever The Informant And Other Relatives Visited Dharmawati(deceased) She Always Expressed Apprehension Of Her Life Because Of Non Fulfilment Of Dowry Demand. On 2.5.2010 When Informant's Cousin Brother Bhogendra Went To Bring Back Dharmawati, He Was Informed That Because Of Non Giving Of Motor Cycle, She Was Being Assaulted Regularly. Dharmawati Also Expressed Apprehensions That She Can Be Done To Death Any Time. On Receiving Such A Information, Bangali, Another Brother Of The Informant Went To Bring Her Back On 35.2010, And When He Reached There At 4 P.m., He Found Dharmawati Lying In Verandah Of The House In A Severely Burnt Condition And Was Reeling In Agony And Pain. Dharmawati Informed Bangali That Because Of Non Fulfilment Of Dowry Demand, Her Husband, In-laws And Sister-in-laws Had Set Her Ablaze After Pouring On Her Kerosene Oil. Bangali Intimated The Said Fact On Telephone To The Informant Who Immediately Rushed For Neem Gaon, For In- Laws House. On His Way Informant Met Bangali Along With Dharmawati And Hence She Was Rushed To District Hospital Mathura But, There Doctors Advised Him To Carry Her To Swarn Jayanti Hospital Mathura Or To Agra. While Dharmawati Was Being Transferred To Swarna Jayanti Hospital, Mathura, She Succumbed To Her Injuries And So Her Cadaver Was Got Deposited In Mathura Mortuary And Thereafter Informant Liladhar, Brother Of The Deceased Got The FIR, Annexure No.1 Lodged At P.S. Mathura, The Same Day At 8.50 P.m., Which Was Registered As Crime No. 128 Of 2010, U/s 498A, 304-B IPC And Section ¾ Of D.P. Act.
Autopsy On The Dead Body Of The Deceased Was Conducted On The Following Day At 3 P.m.,which Disclosed Simple To Deep Burn And Internal Organs Congested . Deceased Was Having A Gravid Uterus With A Dead Foetus About Three Months Old.
After Being Apprehended In The Said Crime, Revisionist Claimed Juvenility. Juvenile Justice Board, Mathura Conducted An Inquiry Into The Said Aspect And After Going Through Various Decisions Cited Before It And Relying Upon The Educational Certificate Submitted By The Revisionist, Where His Date Of Birth Was Recorded As 15.5.1094, That The Juvenile Justice Board Opined And Held That On The Date Of The Incident Revisionist Was Of Age 15 Years,7 Months And 18 Days.
After Being Adjudged A Juvenile, Revisionist Moved An Application For Being Released On Bail In The Aforesaid Crime, Before Juvenile Justice Board, But His Said Endeavour Was Thwarted By The Board Vide It's Impugned Order Dated 15.3.2011, By Rejecting His Such A Prayer. Aggrieved By His Unsuccessful Attempt In Securing His Release Revisionist Challenged Board's Order Before Lower Appellate Court/ Session's Judge, Mathura, Preferring Criminal Appeal No. 23 Of 2011,Pushpendra Alias Brij Bihari Alias Pappi Vs. State Of U.P., U/s 52 Of Juvenile Justice Act But Remained Unsuccessful There As Well As Session's Judge Also Repelled His Challenge And Rejected The Appeal Vide Impugned Order Dated 19.5.2011. Hence This Revision U/s 53 Of Juvenile Justice Act To Secure Release On Bail And Hence Challenge Has Been Thrown To Both The Impugned Orders Passed By Lower Appellate Court And The Board.
In The Back Ground Of Preceding Fact Scenario I Have Heard Sri Rajul Bhargava, Learned Counsel For The Revisionist And Sri K.N. Bajpai Learned AGA Representing Respondent State And Sri Pankaj Verma Advocate For Informant Liladhar Respondent No. 2.
Sri Bhargava, Strenuously Urged And Castigated Both The Impugned Orders By Submitting That Juvenile Justice Board Denied Bail To The Revisionist Mainly For The Reason That Charged Offence Against The Revisionist Is Heinous Even After Observing That It Is Trite Law That Gravity Of The Offence Is No Ground To Deny Bail To A Juvenile Accused In Conflict With Law And Consequently It Misguided And Misdirected Itself In Rejecting Bail Prayer Of The Juvenile Revisionist. It Was Discernible From The Allegations Levelled And The Charged Offences That The Dispute Was In The Nature Of A Family Feud And Greedy Attitude Of The In- Laws. Revisionist Being A Juvenile Alone Could Not Have Demanded Dowry Nor Could Have Committed The Crime As The Deceased Was Five Years Elder To Him. In Such A Short Period Of Less Than Three Months Juvenile Husband Could Not Have Developed Criminal Psyche Against His Newly Wedded Wife To Commit Her Murder Submitted Learned Counsel. Probation Officer's Report In This Respect Lend Credence To The Said Aspect As It Recorded Social And Physical Qualities Of Revisionist Being Normal, Economic Condition Poor And Social Condition Good Without Having A Criminal Background And Consequently It Did Not Indicate Any Adverse Evidence And Opinion Against The Revisionist For Deterioration Of Revisionist's Physical And Social Qualities. On The Material Placed Before It Board Committed Manifest Error Of Law Denying Bail To The Accused Revisionist By Considering Only Gravity Of The Offence. While Concluding It's Opinion That After Being Released On Bail, Revisionist May Come In Association With Criminal And Cause Of Justice Will Be Defeated If He Is Allowed Bail No Input Material Was Referred By The Board And Such Conclusions Are Conjectural And Hypothetical. Drawing Opinion Against The Facts Of The Case And In Total Absence Of Any Incriminating Material Is In-judicious Approach And Can Not Be Countenanced And, Therefore, Impugned Order By The Board Cannot Be Sustained. Turning His Wrathful Castigation Of Lower Appellate Court's Order It Was Contended That It Too Committed Same Error As That Of Board By Concurring With It's Observations And Referring To Gravity Of The Crime. It's Observation That After Being Released On Bail, Revisionist Will Be Free To Solemnize Another Marriage And Chances Of Another Wife Being Done To Death Because Of Rapacious Demand Is An Imminent Possibility Is Supported By No Evidence And Is A Pre- Mature Conjectural Pre Emptive Conclusion. Instead Of Applying It's Independent Mind And Conduct Fair And Impartial Analysis Session's Judge Dismissed Revisionist Appeal For The Reason That The Crime Charged Against The Revisionist Was Most Grievous And Circumstances Of The Case Does Not Warrant His Release As It Will Defeat Cause Of Justice. Entire Opinion By Lower Appellate Court Pre Empted Unwarranted Conclusions And Residue Therefore Is That All The Conclusions Derived By The Session's Judge Are Based On Surmises And Hypothetical Suppositions With Out Any Material And Evidences Existing On The Record.
Referring To His Defence Plea It Was Argued That Deceased Was Having An Extra Marital Relationship And Was Pregnant At The Time Of Marriage And Subsequently, When Her Pregnancy Was Detected, She Committed Suicide. Learned Counsel Relied Upon Autopsy Report To Authenticate His Submission By Pointing Out That From The Date Of Nuptial Knot To Demise Of The Deceased Only Two Months And Few Days Had Gone By Whereas Post Mortem Examination Report Mentions A Dead Foetus Of Three Months In Her Womb. Adverse To The Conclusions Derived By Lower Appellate Court It Was Contended That Five Years Elder Girl Was Married With Five Years Younger Juvenile Boy To Cover Up Extra Marital Affair Of The Deceased. It Was Because Of This Reason That Informant Opted To Search For A Family With Weak Fiscal Background. On This Aspect Opinion By Session's Judge Is Contrary To The Natural Social Ethos. Allegation Of Demand Of Rs. Fifty Thousand During Marriage Ceremony Sapt-padi Is An After Thought And Cooked Up Allegation And Appellate Court Illegally Opined That Marriage Of The Revisionist Was Solemnized With The Deceased Because Of Rapacious Demand Of Dowry. Family Members Of The Deceased Were Aware Of Deceased Activities And Therefore Got Her Married In A Hurried Manner With Five Years Younger Bridegroom. Vetting From Such An Angle No Cause Of Justice Would Have Been Defeated By Enlarging Revisionist On Bail. Deceased Had Committed Suicide Because Of Aforesaid Reason On Her Own Volition And A False Case Was Cooked Up Against The Revisionist. Chances Of Juvenile Revisionist Being Entangled With Criminals Is Not Only Remote But Impossible As He Lacks Criminal Proclivities, Submitted Sri Bhargava. Concluding His Submissions It Was Prayed That The Revision Be Allowed And The Revisionist Be Released On Bail.
Per Contra, Learned AGA Submitted That Allegations Against The Revisionist, Which Are Taken To Be True At This Stage Unerringly Projects Anointed Greed Of The Family Members, Which Is Also Perceptible From The Probation Officer's Report And Their Past Conduct As Alleged In The Midst Of The Marriage, Sapt-padi Was Endeavoured To Be Abjured Because Of Rapacity And Only After Receiving Rs. Fifty Thousand That Marriage Ceremony Was Finalised Shows Their Lust For Money. Learned AGA, Therefore, Contended That For Such Greedy People, To Murder Their Daughter-in-law Because Of Non-fulfilment Of Dowry Was Not A Remote Possibility And Therefore, Allegations Against The Revisionist Were Not Only Antisocial But Were Eminently Grave And, Therefore, Both The Impugned Orders Must Be Sustained. Learned Counsel For The Informant Also Toed The Arguments By Learned AGA To Oppose The Bail Prayer Of The Revisionist.
I Have Given Anxious Considerations To The Arguments Of Either Sides And Have Perused The Entire Material On Record. From The Allegations, Pointed Out Above, It Is A Case Of Dowry Demand And Dowry Death, In Between Two Families. In Such A View, Opinion That The Revisionist, A Young Adolescent Boy Of Less Than 16 Years, Will Turn Out To Be A Criminal Is A Supposition Which Is Recorded Without Any Back Ground Material And Can Not Be Sustained. May Be That The Revisionist Belongs To Socially And Economically Poor Background But That Is No Reason To Draw A Conclusion That He Will Possess Criminal Proclivity After Being Released On Bail. Such A Conclusion Was Recorded Albeit There Is Dearth Of Evidence On The Said Aspect. Judicial Conclusions Should Be Arrived At On The Basis Of Submitted Record And Pleadings Of The Parties. No Adverse Conclusion Can Be Drawn Against An Accused, Specially A Juvenile In Conflict With Law, Which Is Not Supported By Material And Evidences On The Case File. In The Present Case, The Defence Of The Revisionist-accused Is Supported By The Autopsy Report Where The Deceased Was Found To Be Pregnant By Three Months Old Dead Foetus. Marriage Of The Revisionist Was Admittedly Solemnized On 18.2.2010 And The Deceased Lost Her Life On 3.5.2010, Within Two Months And Fifteen Days. In Such A View, The Contention Of The Revisionist That The Deceased Committed Suicide Because Of Her Extra Marital Relationship Cannot Be Said To Be Absurd Or Not Possible. Bride Burning Because Of Non-fulfilment Of Greed And Lust For Money No Doubt Is A Social Crime Of Grave Magnitude Which Must Be Viewed With All Seriousness But At The Same Time, The Legislative Intent Behind Enacting Juvenile Justice Act Has Also To Be Kept Into Consideration. By Release Of The Revisionist, How The Cause Of Justice Will Be Defeated Is A Conclusion Difficult To Comprehend. Revisionist Is A Juvenile Less Than 16 Years Of Age Without Any Criminal History. His Behaviour And Contact With Neighbours Are Normal And He Lacks Criminal Bent To Mind And Hence To Opine That He Will Turn Out To Be A Criminal And Keep Their Association Is A Far Fetched Conclusion. Further In His Marriage, Dominant Participants Must Be His Parents And Other Major Relatives. According To Our Social Set Up, Revisionist Must Have Played A Second Fiddle Role And Had To Act Like A Puppet. Getting Revisionist Married With Five Years Elder Bride Also Indicate His Dormant Role. Lower Appellate Court Committed Ex Facie Error In Ignoring Above Aspect And Not Relying Upon Various Decisions Cited Before It By The Appellant-accused. It Should Have Given Due Considerations To Those Decisions.
In My Aforesaid Opinion I Am Fortified With The Following Decisions:-
Prakash V. State Of Rajasthan:2006 CRI. L. J. 1373 It Has Been Held As Under:-
"9. At The Time Of Consideration Of Bail Under Section 12 Of The Act, The Merit Or Nature Of Offence Has No Relevancy. The Language Of Section 12 Of The Act, Using The Word "shall" Is Mandatory In Nature And Providing Non Obstante Clause By Using The Expression "notwithstanding Anything Contained In The Code Of Criminal Procedure, 1973 (2 Of 1974) Or Any Other Law For The Time-being In Force Be Released On Bail" Shows The Intention Of The Legislature To Grant Bail To The Delinquent Juvenile Offender By Releasing Him On Bail Who Is Arrested Or Produced Before A Court; However, With Exception To Release Him On Bail If There Are Reasonable Grounds For Believing That His Release Is Likely To Bring Him Into Association With Any Known Criminal Or Expose Him To Moral, Physical Or Psychological Danger Or That His Release Would Defeat The Ends Of Justice. It Is For The Prosecution To Bring On Record Such Material While Opposing The Bail And To Make Out Any Of The Grounds Provided In This Section Which May Persuade The Court Not To Release The Juvenile On Bail.
10.The Act Is Beneficial And Social-oriented Legislation Which Needs To Be Given Full Effect By All Concerned Whenever The Case Of Juvenile Comes Before Them. In Absence Of Any Material Or Evidence Of Reasonable Ground To Believe That The Delinquent Juvenile, If Release On Bail, Is Likely To Come Into Association With Any Known Criminal Or Expose Him To Moral, Physical Or Psychological Danger, It Cannot Be Said That His Release Would Defeat The Ends Of Justice. On The Contrary, Keeping In View The Legislative Intent In Enacting The Act, The Juvenile Offender Deserves To Be Released On Bail."
In Rakesh Kumar @ Sittu Versus State Of Jharkhand : 2006 Cr.L.J 2516 It Has Been Held As Under:-
" 5. Here In The Instant Case There Is Nothing Appears To Be On The Record, Which Prompted The Learned Additional Sessions Judge To Form An Opinion That The Petitioner If He Is Released On Bail He May Form His Own Association Of Criminal Or Will Become Associate Of Other Criminal Gangs And Therefore The Order Passed By The Court Below As Well As Appellate Court Do Not Seems To Be Justifies. Hence The Order Passed By Both The Courts Below Are Set Aside.
6.Accordingly, The Above-named Petitioner Is Directed To Be Enlarged On Bail On Furnishing Bail Bond Of Rs. 5,000/- (rupees Five Thousand) With Two Sureties Of The Like Amount Each To The Satisfaction Of Trial Court/ A.C.J.M., Palamau At Daltanganj In Connection With Daltanganj Town P.S. Case No. 76 Of 2005, Corresponding To G.R. Case No. 276 Of 2005, Subject To Undertaking Given By His Father That He Will Take Care Of The Petitioner And Will Not Allow Him To Indulge In Any Other Criminal Activities."
In Sanjai Chaurasia Versus State Of U.P. And Another : 2006 CR.L.J. It Has Been Held By This Court As Under :-
"10. In Case Of The Refusal Of The Bail, Some Reasonable Grounds For Believing Above Mentioned Exceptions Must Be Brought Before The Court Concerned By The Prosecution But In The Present Case, No Such Ground For Believing Any Of The Above Mentioned Exceptions Has Been Brought By The Prosecution Before The Juvenile Justice Board And Appellate Court. The Appellate Court Dismissed The Appeal Only On The Presumption That Due To Commission Of This Offence, The Father And Other Relatives Of Other Kidnapped Boy Had Developed Enmity With The Revisionist, That Is Why In Case Of His Release, The Physical And Mental Life Of The Revisionist Will Be In Danger And His Release Will Defeat The Ends Of Justice But Substantial To This Presumption No Material Has Been Brought Before The Appellate Court And The Same Has Not Been Discussed And Only On The Basis Of The Presumption, Juvenile Justice Board Has Refused The Bail Of The Revisionist Which In The Present Case Is Unjustified And Against The Spirit Of The Act. It Appears That The Impugned Order Dated 27-6-2005 Passed By The Learned Sessions Judge, Meerut And Order Dated 28-5-2005 Passed By The Juvenile Justice Board Are Illegal And Are Hereby Set Aside.
11. Keeping In View The Welfare Of The Revisionist With A Hope That He May Recover Himself, He Is Entitled For Bail."
In Manoj Versus State ( NCT Of Delhi): 2006 Cr.L.J. 4759 It Has Been Held As Under:-
"8. Insofar As The First Two Exceptions Are Concerned, These Are Not In Issue In The Present Case. The Learned Additional Sessions Judge Has Refused To Grant Bail To The Petitioner Invoking The Third Exception, I.e., That If The Juvenile Is Released, It Would Defeat The Ends Of Justice. The Reasons For Arriving At This Conclusion Are Entirely Different From The Factors Which Require To Be Considered As Indicated In Master Abhishek (supra). The Question Of The Ends Of Justice Being Defeated Has To Be Considered In The Context Of The Welfare Of The Juvenile, Whereas What The Learned Additional Sessions Judge Has Done Is That, According To Him, The Ends Of Justice Would Be Defeated Because The Trial Is Yet To Commence; The Cases Against Co-accused Are Pending In Other Courts; Release Of The Juvenile Would Affect The Trial In The Main Case. None Of These Are Factors Which Have To Be Taken Into Account When A Decision Is Required As To Whether The Release Of The Juvenile Would Defeat The Ends Of Justice Or Not. Apart From This, Nothing Else Has Been Pointed Out Which Would Indicate That The Release Of The Petitioner Would Result In A Defeat Of The Ends Of Justice."
In View Of Above Discussions, After Looking Into The Entire Facts And Circumstances Of The Case, I Am Of The Opinion That Both Impugned Orders Rejecting Bail Prayer Of The Revisionist Are Unsustainable And Are Susceptible To Interference As It Both Can Not Be Upheld.
This Revision Is Allowed. Impugned Order Dated 15.3.2011 Passed By Juvenile Justice Board, Mathura, In Crime No.128 Of 2010 Under Sections 498-A- 304-B IPC And 3/4 Dowry Prohibition Act, Police Station Raya, District Mathura And Subsequent Order Passed By Sessions Judge, Mathura In Criminal Appeal No. 23 Of 2011, Pushpendra @ Brij Bihari @ Pappi Vs. State, Dated 19.5.2011 Are Hereby Set Aside And Bail Prayer Of The Revisionist Is Allowed.
Revisionist Pushpendra @ Brij Bihari @ Pappi Is Directed To Be Released On Bail On His Father Kedari, Executing A Personal Bond Of Rs.20,000/- And Two Solvent Sureties Each In The Like Amount To The Satisfaction Of Juvenile Justice Board, Mathura In Crime No.128 Of 2010 Under Sections 498-A- 304-B IPC And 3/4 Dowry Prohibition Act, Police Station Raya, District Mathura.

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