Akash Kumar vs The State Of Bihar
2023 Latest Caselaw 3663 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.4392 of 2022

            Arising Out of PS. Case No.-384 Year-2022 Thana- BIHAR District- Nalanda
     ======================================================

X-1

... ... Appellant/s Versus

1. The State of Bihar

2. Vijay Kumar Son of Rudal Paswan Resident of Village - Barandi, P.S.-

Rahui, District - Nalanda.

... ... Respondent/s ====================================================== Appearance :

     For the Appellant/s      :        Mr. Rajnish Kumar, Advocate
     For the State            :        Ms. Usha Kumari 1, APP
     For the Informant        :        Mr. Mithilesh Prasad Sharma, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 10-08-2023

Heard Mr. Rajnish Kumar, learned counsel appearing

on behalf of the appellant and Mr. Mithilesh Prasad Sharma,

learned counsel for the informant. The State is represented by

Ms. Usha Kumari 1, learned Additional Public Prosecutor.

2. Though, the appellant has given full description in

the appeal, it would be inappropriate to disclose his identity in

view of the statutory provisions prescribed under Section 74 of

the Juvenile Justice (Care and Protection of Children) Act, 2015.

He is being referred to in the cause title as "X-1".

3. Registry while uploading the order on the website Patna High Court CR. APP (SJ) No.4392 of 2022 dt.10-08-2023

shall also ensure that the cause title is reflected in similar

manner

4. The present appeal has been preferred on behalf of

the appellant under Section 101(5) of the Juvenile Justice (Care

and Protection of Children) Act, 2015 (for short 'The Act,

2015') challenging the order dated 03.11.2022 passed by the

learned 1st Additional Sessions Judge-cum-Special Judge,

Children Court, Biharsharif, Nalanda in Children Case No. 12 of

2022, arising out of Bihar P.S. Case No. 384 of 2022 for the

offences punishable under Sections 302, 376(D), 120(B)/34 of

the Indian Penal Code; Section 3(2)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and

Section 6 of the POCSO Act whereby the learned children court

has rejected the prayer for grant of bail of the appellant.

5. The prosecution case is based on the written report

of the informant alleging therein that on 26.05.2022 at about

6:30 his minor daughter had gone to attend the computer class,

in the meanwhile, at about 11:30 he received a mobile call from

the mobile of his daughter where one boy told him that his

daughter is admitted in Sadar Hospital, Biharsharif. On the

aforesaid information, the informant rushed to the Sadar

Hospital, Biharsharif where he found the dead body of her Patna High Court CR. APP (SJ) No.4392 of 2022 dt.10-08-2023

daughter. He also found that his daughter was done to death by

throttling. The staff of the Hospital disclosed that his daughter

was brought by 2-3 boys in a Toto.

6. During the course of investigation, the appellant

claimed himself to be a juvenile and his case was duly

considered by the Juvenile Justice Board and on the basis of the

medical report he has been declared juvenile vide order dated

22.07.2022, copy of which has been brought on record by way

of filing the supplementary affidavit.

7. While assailing the impugned order, learned

counsel for the appellant submits that the FIR has been

instituted against unknown persons, however, during the course

of investigation, the appellant was apprehended by the police

and on the basis of CDR and tower location, it has been found

that the appellant was in constant touch with the deceased and

soon before her death, he was present near the place of

occurrence. Learned counsel further submits that the

confessional statement of the appellant was also recorded

leading to recovery of slipper of the deceased and clothes which

is said to have been used for throttling. It has also found that the

mobile number which was used by the appellant was in the

name of his father and till date the same has not been Patna High Court CR. APP (SJ) No.4392 of 2022 dt.10-08-2023

recovered. He lastly submits that be that as it may, the

confessional statement of the appellant before the police is not

at all admissible and the same is hit by Sections 25/26 of the

Indian Evidence Act. He also submits that so far the recovery of

slipper and clothes are concerned, the same does not show the

complicity of the appellant in the present crime.

8. On the other hand, learned counsel for the State and

learned counsel for the informant vehemently opposed the

prayer for bail of the appellant and submit that though the

appellant has been declared juvenile but the manner in which

the crime in question has been committed, this shows that the

appellant is a person of matured mind who had committed the

crime with the help of his friends in such a heinous manner.

They also submit that on the basis of the confession of the

appellant the clothe/rope has been recovered by which the

deceased was subjected to strangulation and the same is also

corroborated by the postmortem report.

9. This Court vide order dated 05.05.2023 had called

for the up-to-date social investigation report as well as social

background report. From perusal thereof, it appears that there is

no adverse remarks against the appellant and his behaviour is

found to be at par with a disciplined boy. Further, the status Patna High Court CR. APP (SJ) No.4392 of 2022 dt.10-08-2023

report of the trial also suggests that out of 14 witnesses, till date

only three witnesses have been examined and there is no

likelihood of conclusion of the trial in near future. This Court

also cannot lose sight of the principles of presumption of

innocence of a child and the paramount importance of his best

interest, repatriation and restoration.

10. Further Division Bench of this Court in Lalu

Kumar & Ors. vs. The State of Bihar & Ors. since reported in

2019(4) PLJR 833, has held that gravity and seriousness of the

offence alleged cannot be made a ground for rejecting bail under

the Act of 2015.

11. Considering the aforenoted submissions made on

behalf of the parties and taking note of the social investigation

report/social background report which suggests no adverse

remarks and the appellant having been declared juvenile is in

custody for over a period of one year and two months, the

impugned order dated 03.11.2022 passed by the learned 1st

Additional Sessions Judge-cum-Special Judge, Children Court,

Biharsharif, Nalanda in Children Case No. 12 of 2022, arising

out of Bihar P.S. Case No. 384 of 2022, is set aside and the

appellant is directed to be released on bail on furnishing bail

bond of Rs.10,000/-(ten thousand) with two sureties of the like Patna High Court CR. APP (SJ) No.4392 of 2022 dt.10-08-2023

amount each to the satisfaction of learned 1st Additional

Sessions Judge-cum-Special Judge, Children Court, Biharsharif,

Nalanda in connection with Children Case No. 12 of 2022,

arising out of Bihar P.S. Case No. 384 of 2022, subject to the

condition that one of the bailors will be father/mother of the

appellant who will file an affidavit giving an undertaking to the

effect that he will take proper care of good behaviour and child's

(appellant's) well being and will not allow him to go in the

company of bad elements.

12. The appeal stands allowed in the aforementioned

terms.

(Harish Kumar, J)

Anjani/-

AFR/NAFR                N.A.
CAV DATE                N.A.
Uploading Date          11.08.2023
Transmission Date       11.08.2023