# Takla @ Dharmeshwar (Minor) Revisionist v. State of U.P. & Anr. 208 INDIAN LAW RE

- **Citation:** (2021) 7 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-20
- **Case number:** Criminal Revision No. 3 of 2018
- **Bench:** Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/takla-dharmeshwar-minor-revisionist-v-state-of-u-p-anr-208-indian-law-re-47073
- **Pages:** 4

## Headnote

Govt. Advocate

Revisionist declared juvenile-thereafter moved
Bail Application-rejected-Appeal rejected-victim
stated that revisionist did not commit report on
her.

Bail granted. (E-7)

## Text

7 All. Takla @ Dharmeshwar (Minor) Vs. State of U.P. & Anr.
207
instant case, the two deceased not only tried to
lift goods lying in the guardroom despite being
restrained by the appellant but they also entered
into altercation. Under the circumstances,
keeping in mind that the two deceased were
themselves ex-guards, the passions surged from
both sides and, therefore, it was quite natural for
the appellant to lose the power of self control,
particularly, when he had the gun to exhibit his
authority. Therefore, under that heat of passion
or fit of rage, so to say, the appellant, who had a
gun for duty, lost self-control and fired two
shots in quick succession. Noticeably, it is not
the prosecution case that the second shot was
fired with some delay, that is when the passion
had died down. Thus, both shots were fired by
the appellant whilst he was deprived of the
power of self control on sudden surge of
emotions provoked by the two deceased who
entered the guardroom and tried to lift goods
despite being asked to desist from doing so and,
thereafter, entered into a heated altercation with
the appellant, who was the guard on duty.
Hence, in our considered view, the appellant is
entitled to the benefit of Exception 1 of Section
300. But since the injury caused to D-2 was
such which the offender knew that it is likely to
cause death, the appellant is liable to be
convicted under Section 304-Part-1 IPC though
not under Section 302 IPC.

30. On the question of sentence,
though the maximum sentence prescribed
for an offence punishable under Section 304
Part 1 is imprisonment for life but there are
mitigating factors here. Firstly, the appellant
was a guard on duty and, secondly, he did
not act cruelly by repeating the shots or by
assaulting the two deceased once they had
fallen. It may also be noticed that no sooner
the surge of emotions died down, the
appellant neither tried to escape nor tried to
reload his gun to fire another shot. All this
suggests that his act was on account of
sudden
surge
of
emotions
which
deprived him of his power of self control
and no sooner the emotions subsided he
became calm, perhaps repentant of what he
had done, and, therefore, could be arrested
with his gun and eight live cartridges. It be
noted that it is not the prosecution case that
to overpower the accused-appellant any
serious force had to be used. Under the
circumstances, in our considered view, the
ends of justice would be served if the
sentence is reduced from life to 10 years of
rigorous imprisonment along with fine as
awarded by the court below.

31. Accordingly, the appeal is partly
allowed. The conviction of the appellant
under Section 302 IPC is converted to that
under
Section
304-Part-1
IPC.
The
sentence of the appellant is reduced from
imprisonment for life to 10 years rigorous
imprisonment. The fine of Rs.50,000/- and
the default sentence of one year simple
imprisonment awarded by the trial court is
maintained. The appellant is in jail, he shall
serve out the sentence awarded above.

32. Let a copy of this order be sent to
the trial court concerned for compliance.
----------
(2021)07ILR A207
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.07.2021

BEFORE

THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Revision No. 3 of 2018

Takla @ Dharmeshwar (Minor)
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Amrendra Singh, Armendra Pratap Singh

Counsel for the Opposite Parties:
Govt. Advocate

Revisionist declared juvenile-thereafter moved
Bail Application-rejected-Appeal rejected-victim
stated that revisionist did not commit report on
her.

Bail granted. (E-7)

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This criminal revision has been
preferred by the revisionist/juvenile Takla
@ Dharmeshwar through his mother Smt.
Sushila Devi, under Section 102 of The
Juvenile Justice (Care and Protection of
Children) Act, 2015 (in short the "Act of
2015")
against
the
judgement
dated
28.11.2017 passed by learned Sessions
Judge, Sitapur in Criminal Appeal No. 80
of 2017 as well as order dated 10.10.2017
passed by Principal Magistrate, Juvenile
Justice Board, Sitapur in Case No. 60/2017
arising out of Crime No. 100/2017, under
Section 376B Indian Penal Code (in short
"I.P.C.") and Section 3/4 of The Protection
of Children from Sexual Offences Act,
2012 (in short "POCSO Act"), Police
Station Manpur, District Sitapur.

2. Brief facts necessary for disposal of
this Criminal Revision are as follows:-

An F.I.R. bearing Case Crime
No.100 of 2017 was registered against
unknown persons on the basis of written
complaint moved by the complainant Smt.
Phoolmati narrating the facts that on
06.05.2017 at about 1 AM in the night,
some dance function was going on in the
marriage procession in front of house of the
complainant. The grand-daughter of the
complainant aged about 5 years went to
watch the same. One unknown person came
there and took her away near the pond
situated in the village and committed rape
on her. The investigation was made and
during the course of investigation, the name
of the revisionist and one other accused
came into light. Subsequently, charge sheet
was submitted in the Court. The Court
concerned took cognizance of the matter.
The revisionist claimed juvenility and he
was declared juvenile by the Juvenile
Justice Board, Sitapur vide order dated
21.09.2017.
Thereafter,
the
revisionist/juvenile moved bail application
before the Juvenile Justice Board, Sitapur.
That was rejected vide order dated
10.10.2017. Against that order an appeal
was preferred under Section 101 of the Act
of 2015 and appeal too was dismissed by
the Appellate Court vide judgment and
order dated 28.11.2017. Being aggrieved
with
the
said
order/judgment,
the
revisionist/juvenile preferred the present
revision.

3. Heard Sri Shivendra Singh
Rathore, learned counsel for the revisionist
and Sri Dhananjay Kumar, learned A.G.A.
appearing
on
behalf
of
the
State
respondent. None turned up on behalf of
the opposite party no. 2 despite of service
of notice.

4.

Learned
counsel
for
the
revisionist/juvenile
submitted
that
revisionist is in jail since last four years. He
was declared juvenile by the Juvenile
Justice Board, Sitapur vide order dated
21.09.2017. He was not named in the first
information report. During the course of
investigation, police implicated him on the
basis of the statement made by the
complainant, wherein she stated before the
Investigating Officer that one Lallu Ram
7 All. Takla @ Dharmeshwar (Minor) Vs. State of U.P. & Anr.
209
and Ram Nath told her that they both saw
that Daroga @ Surjeet took the victim
away forcibly and Takla @ Dharmeshwar
was also there. They both committed rape
on the victim. He also submitted that the
victim in her statement recorded under
Section 164 Cr.P.C. has mentioned that she
was picked up by Surjeet and Takla and
Surjeet committed rape on her but she said
nothing about the commission of rape by
revisionist/juvenile-Takla.
He
further
submitted that according to provisions of
Section 18(1)(g) of the Act of 2015, the
juvenile in conflict with law can be sent to
special home for such a period not
exceeding three years. In the present
matter, even if it is presumed that juvenile
has committed a crime, he cannot be kept
in protection home for more than three
years. The revisionist/juvenile already has
spent about four years in judicial custody.
He further submitted that the case of
revisionist/juvenile does not fall under any
of the exceptions provided under Section
12(1) of the Act of 2015. Learned Principal
Magistrate, Juvenile Justice Board and the
Appellate
Court
both
have
wrongly
concluded that the release of the juvenile
will bring the juvenile into the contact of
the unknown criminals and that will expose
the juvenile to moral, physical and
psychological danger and will defeat the
ends of justice.

5. Learned A.G.A. countered the
submissions made by the learned counsel
for the revisionist and submitted that
revisionist/juvenile committed rape on an
innocent child aged about five years.
Medical report of the victim shows
brutality in committing the crime. Doctor
has noted that " There are signs suggestive
of recent use of force/forceful penetration
of vagina/anus" so the revision of the
juvenile should be dismissed.

6. Considered the rival submissions
and perused the record.

7.

It
is
undisputed
that
revisionist/juvenile is in judicial custody
for a period of about four years. There is a
report of Principal Magistrate, Juvenile
Justice Board, Sitapur dated 15.07.2019
disclosing that the case of the juvenile has
been transferred under Section 18(3) of the
Act of 2015 to POCSO Court/Additional
Sessions Judge, Court No. 8, Sitapur for
trial. It means that the trial of the revisionist
is being conducted as an adult. In such
situation, the revisionist is not entitled for
the benefit of provisions under Section
18(g) of the Act of 2015.

8. As per the report of District
Probation Officer, Sitapur, the age of
revisionist/ juvenile was found 17 years
and 9 months. About four years have
passed,
since
then,
so
the
revisionist/juvenile now has turned major
aged about 21 years and some months.

9. Considering the above facts and
circumstances and the settled position of
law as well as the statement made by the
victim wherein she has stated that this
revisionist/juvenile did not commit rape on
her, the order of Juvenile Justice Board and
the judgment of the appellate court are not
sustainable. Therefore, it appears just to set
aside the order passed by the Juvenile
Justice Board and the judgement passed by
the Appellate Court.

10.

The
revision
is
allowed.
Impugned order dated 28.11.2017 passed
210 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Sessions Judge, Sitapur in Criminal
Appeal No.80 of 2017 and order dated
10.10.2017 passed by Principal Magistrate,
Juvenile Justice Board, Sitapur in Case
No.60/2017
arising
out
of
Crime
No.100/2017, under Section 376-D I.P.C.
and Section 3/4 of POCSO Act, Police
Station Manpur, District Sitapur, are hereby
set aside.

11.

The
juvenile
(Takla
@
Dharmeshwar) shall be released on bail in
Case Crime No.100/2017 (supra). It is
pertinent to mention here, since the
revisionist has turned an adult and of age
more than 21 years, he shall be released
upon furnishing a personal bond himself
and two sureties each of the like amount to
the satisfaction of the trial Court concerned.
Out of two sureties, one shall be
mother/father or close relative of the
revisionist, subject to following conditions
:-

(i) The revisionist shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The revisionist shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code.

(iii) In case, the revisionist
misuses the liberty of bail during trial and
in
order
to
secure
his
presence
proclamation under Section 82 Cr.P.C. is
issued and the revisionist fails to appear
before the court on the date fixed in such
proclamation, then, the trial court shall
initiate
proceedings
against
him,
in
accordance with law, under Section 174-A
of the Indian Penal Code.

(iv) The revisionist shall remain
present in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

(v)The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

(vi) The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

(vii)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------

(2021)07ILR A210
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 113 of 2021

Khushi (Minor) ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Prabha Shanker Mishra