Mithun Saroj v. State of U.P. and 3 Others

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44788 of 2023 Applicant :- Mithun Saroj Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Bhavesh Singh Jadaun,Satya Dheer Singh Jadaun Counsel for Opposite Party :- G.A.,Mahesh Kumar Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Bhavesh Singh Jadaun, learned counsel for the applicant, Sri Mahesh Kumar, learned counsel for the first informant, Sri Birendra Pratap Singh, learned AGA for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Mithun Saroj, seeking enlargement on bail during trial in connection with Case Crime No. 360 of 2023, under Sections 363, 366, 376(3), 452 I.P.C. and 3/4 POCSO Act, registered at P.S. Kokhraj, District Kaushambi.

¶4The F.I.R. of the matter was lodged on 20.8.2023 by Munni Devi Patel against the applicant with the allegation that he on

19.8.2023 at about 10:00 a.m. enticed away her minor daughter aged about 15 years. She was searched a lot but could not be traced.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present case is a case of consent. It is argued that the victim in the statement recorded Section 161 Cr.P.C. states of going with the applicant after which the applicant is stated to have established physical relationship with her. Subsequently in her statement under Section 164 Cr.P.C. she changes her version as given earlier and states that he forcibly entered into her house, allured her and took her away to a jungle and tried to commit rape upon her and subsequently, he took her to another place where he committed rape upon her. It is argued that there are contradictions in the statements of the victim recorded during investigation. It is further argued that although date of birth of the victim as per school records is stated to be 07.09.2008 but the C.M.O. concerned has opined her age to be above 18 years and below 21 years. It is argued that ossification test also states the same age of the victim and as such she is major girl. It is argued that prosecution is not consistent. It is argued that after recording of the statements of the victim under Section 161 Cr.P.C., offence under Section 376 (3) I.P.C. and 3/4 POCSO Act were added. It is argued that the medical examination does not support the prosecution case as the doctor did not opine of any sexual assault upon the victim. It is argued that the applicant has no other criminal antecedents as stated in para-29 of the affidavit and is in jail since 22.8.2023.

¶6Per contra, learned State counsel and learned counsel for the first informant opposed the prayer for bail and argue that as per school records the victim is a minor girl. The applicant is named in the F.I.R. and in the statement of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and there are allegations against him.

¶7After having heard learned counsels for the parties and perusing the record, it is evident that as per radiological examination and the opinion of C.M.O. concerned, the victim is major girl. There is variation in the statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C.

¶8Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

¶9Let the applicant-Mithun Saroj, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant 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 I.P.C.

(V) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

¶10The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

¶11The bail application is allowed. (Samit Gopal,J.) Order Date :- 6.11.2023 Naresh High Court of Judicature at Allahabad