Court No. - 76

Case :- CRIMINAL REVISION No. - 322 of 2021

Revisionist :- Shivam Kashyap @ Shiv Om Kashyap

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Bharat Garg,Bharat Garg

Counsel for Opposite Party :- G.A.

Hon'ble Dinesh Kumar Singh-I,J.

Notice served upon O.P. No.2 but none appears on her behalf.

Heard Sri Bharat Gar, learned counsel for the revisionist and Sri

Rishi Chaddha, learned A.G.A. for the State.

This Criminal Revision has been directed against the judgement

and order dated 5.12.2020 passed by Special Judge (POCSO

Act), Court No.2/Additional Sessions Judge, Moradabad in

Criminal Appeal No. 26 of 2020 (Shivam Kashyap @ Shiv Om

Kashyap Vs. State of U.P. and another) whereby dismissing the

appeal, the order dated 31.08.2020 of the Juvenile Justice

Board, Moradabad has been upheld. By order dated 31.08.2020,

Juvenile Justice Board had rejected the bail application of the

accused revisionist in Case No. 30 of 2020 arising out of Case

Crime No. 631 of 2020 under Sections 452, 147, 148, 149, 336,

302, 504, 506 I.P.C. and Section 3(2)(V), 3(2)(V-a), 3(1) (XV)

of S.C./S.T. Act, P.S. Majhola, District Moradabad.

As per F.I.R. which has been lodged by Gudiya, O.P. No. 2 on

5.06.2020 in the evening at 7:30 p.m., her brother, Rajesh who

was mentally retarded was being teased by his neighbours,

Bablu and Sanjay (co-accused) saying that he was mad and this

led to quarrel between them in which his brother, Rajesh

received serious injuries after which he was taken to hospital.

During treatment, he died. Her father who was also physically

handicapped, also died probably after getting hit by brick

because when it was tried to know whether he was alive, he

would not move at all and, thereafter F.I.R. was lodged.

In post-mortem report, deceased no. 1, Rajesh is found to have

sustained as many as nine injuries of various kinds including

lacerated wounds and contusions and cause of death was found

to be coma as a result of ante-mortem injuries. Other deceased

is also found to have sustained seven injuries which contained

six lacerated wounds and one abrasion and cause of death is

found to be shock and hemorrhage as a result of coma due to

ante-mortem injury.

Submission is that name of the revisionist has come during

investigation in the statement of Smt. Seema three days after

the occurrence as her statement was recorded on 9.06.2020 and

in that, she has initially stated about 12 accused to be involved

in giving effect to this occurrence while in F.I.R. only three

accused were named while the revisionist was not named and in

these statements, initially name of the revisionist was not taken

but subsequently his name was taken as accused no. 14 which is

mentioned at page no. 40 of the paper book. It is stated by her

that all these persons were armed with lathi-danda and iron-rod,

bricks etc. and started assaulting both the deceased. It is further

argued that if this witness was present on the scene of

occurrence, why name of the revisionist was not disclosed in

the F.I.R. which creates doubt about the presence of this

witness. There is no other witness showing involvement of

revisionist in this offence. He is in jail since 10.06.2020; he has

no criminal history. Further it is argued that revisionist was

minor on the date of occurrence; his age is adjudged to be 16

years 11 months by order of the Juvenile Justice Board dated

7.08.2020, therefore, he was found to be juvenile in the age

bracket of 16-18 years, therefore, provision under Section 12 of

the Juvenile Justice (Care and Protection of Children), Act,

2015 shall come into play which provides that the bail of the

juvenile can be dismissed only if the court satisfies itself that

release of the accused on bail would bring him in association

with known criminal or that it would expose him into moral,

physical or psychological danger or the ends of justice would be

defeated. Without any material collec