# Ram Babu Vishwakarma v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 10 ILRA 373
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-01
- **Case number:** Crl. Appeal No. 1818 of 2020
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-vishwakarma-v-state-of-u-p-anr-opp-parties-47729
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 164 -
Indian Penal Code, 1860 - Sections
376, 504 & 506 - Juvenile Justice (Care
and Protection of Child) Act, 2015 -
Sections 12, 12(1), 15 & 18(3) -
Protection of Children From Sexual
Offences Act,2012 - Section - 5, 6, 101,
- Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act,
1989 - Sections 3(2)(5) - Criminal
Appeal
-
against
rejection
of
Bail
Application under POCSO Act, - offence of
rape & threat - FIR - informant alleged that,
his neighbour (accused - appellant) being
found her alone forcibly committed rape
U.P.on her - court finds that both victim &
accused are minor - although remedy for
bail is already available to a Juvenile for
release on bail under section 12 of the
Juvenile
Justice
Act
-
However,
for
achieving the object of both of the Acts i.e.
Juvenile Justice Act & Pocso Act, it would
be discretion of the court, while averaging
the bail application of a juvenile in the age
groU.P. of 16-18, to take into account his
mental,
physical
capacity,
ability
to
understand and the gravity of the offence
inducing his participation in crime and the
circumstances under which he allegedly
committed the particular grave and serious
offence - since, victim and her family are
threatened to meet dire consequences and
also that if they disclosed anybody they will
not be able to show their face to the society
- accordingly bail application rejected -
However,
court
below
is
directed
to
conclude the trial expeditiously within a
period of two months. (Para - 10, 11, 12)

Appeal Dismissed. (E-11)

List of Cases cited:
374 INDIAN LAW REPORTS ALLAHABAD SERIES
Radhika (Juvenile) Vs St. of U.P. Criminal Appeal No.
4418 of 2019, dated 5.8.2019.

## Text

10 All. Ram Babu Vishwakarma Vs. State of U.P. & Anr.
373
is liable to be partly allowed and the
conviction of the appellants under Section
302 / 34 IPC is liable to be converted into
conviction under Section 304 (Part-I) IPC
and fine amount is liable to be maintained.
The convicts / appellants are in jail for the
last more than 12 years. As such they have
completed their sentence alongwith the
default sentence for Sections 452 and 354
IPC.

56. Accordingly, appeal is partly
allowed and the appellants are convicted
for the offence under Section 304 (Part-I)
IPC and are sentenced to undergo ten years
of
incarceration
with
remission.
We
maintain the fine and default sentence
which will be deposited by the appellants
within twelve weeks from the date of
release.

57. Record and proceedings be sent
back to the Court below forthwith.

58. This Court is thankful to learned
Advocates and Mr. Mohd. Furkan Khan,
Law Clerk (Trainee) of this Court for ably
assisting the Court.
----------
(2022) 10 ILRA 373
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Crl. Appeal No. 1818 of 2020

Ram Babu Vishwakarma ...Appellant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Appellants:
Sri Babu Lal Ram, Sri D.M. Tripathi, Sri Dinesh
Kumar
Tripathi,
Sri
Durvesh
Kumar,
Sri
Trayambak Nath Mishra

Counsel for the Opp. Party:
G.A., Sri Mahabir Yadav, Sri Ram Awtar

Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 164 -
Indian Penal Code, 1860 - Sections
376, 504 & 506 - Juvenile Justice (Care
and Protection of Child) Act, 2015 -
Sections 12, 12(1), 15 & 18(3) -
Protection of Children From Sexual
Offences Act,2012 - Section - 5, 6, 101,
- Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act,
1989 - Sections 3(2)(5) - Criminal
Appeal
-
against
rejection
of
Bail
Application under POCSO Act, - offence of
rape & threat - FIR - informant alleged that,
his neighbour (accused - appellant) being
found her alone forcibly committed rape
U.P.on her - court finds that both victim &
accused are minor - although remedy for
bail is already available to a Juvenile for
release on bail under section 12 of the
Juvenile
Justice
Act
-
However,
for
achieving the object of both of the Acts i.e.
Juvenile Justice Act & Pocso Act, it would
be discretion of the court, while averaging
the bail application of a juvenile in the age
groU.P. of 16-18, to take into account his
mental,
physical
capacity,
ability
to
understand and the gravity of the offence
inducing his participation in crime and the
circumstances under which he allegedly
committed the particular grave and serious
offence - since, victim and her family are
threatened to meet dire consequences and
also that if they disclosed anybody they will
not be able to show their face to the society
- accordingly bail application rejected -
However,
court
below
is
directed
to
conclude the trial expeditiously within a
period of two months. (Para - 10, 11, 12)

Appeal Dismissed. (E-11)

List of Cases cited:
374 INDIAN LAW REPORTS ALLAHABAD SERIES
Radhika (Juvenile) Vs St. of U.P. Criminal Appeal No.
4418 of 2019, dated 5.8.2019.

(Delivered by Hon'ble 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 appellantjuvenile under Section 101 of POCSO Act
against the impugned order dated 19.5.2020
passed by learned Additional District &
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
10 All. Ram Babu Vishwakarma Vs. State of U.P. & Anr.
375
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. 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 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
376 INDIAN LAW REPORTS ALLAHABAD SERIES
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 & 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 & 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. 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
10 All. Ram Babu Vishwakarma Vs. State of U.P. & Anr.
377
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. 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 1618, as it would be mockery of legislation
378 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------
(2022) 10 ILRA 378
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appeal No. 2424 of 2006

Shyam Babu & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Lallu Singh, Sri Mahesh Kumar Mishra

Counsel for the Opp. Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, - Sections 313 & 437-A, - Indian
Penal Code,1860 - Sections 304-B, 304B(2) & 498-A, - The Dowry Prohibition Act,
1961 - Sections 2, 3 & 4 : - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
Evaluation of Evidences - offence of demand of
dowry and death - FIR registered by the
informant with allegation that his deceased
daughter was married with accused husband
who has killed his daughter by hanging as he
had failed to meet the dowry demand - death
caused within four months of marriage -
demand of dowry found to be based on
evidence available on record - deceased was
tortured and strangulated to death - necessary
ingredient to attract offence under section 304-B
IPC are clearly exist - demand of dowry and
consequential implication of accused appellant
no. 1 in offences under section 304-B, 498-A
IPC & 3⁄4 DP Act is sustained. (Para - 11, 17)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 437-A, -
Indian Penal Code, 1860 - Sections 304-B,
304-B(2)
&
498-A,
-
The
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4 -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - Evaluation of Evidences -
offence of demand of dowry and death -
accused appellant no. 2 & 3 (i.e. Jeth & Jethani)
are having their separate living - accused
appellant no. 1 are living with deceased in a
new house which was towards the corner of old
Abadi where the dead body of the deceased was
found - inconsistency in the testimony of the
PWs with regards to separate living of Jeth
Jethani which corroborated by the specific