Monu @ Vishal Paswan v. State of U.P.And 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43220 of 2023 Applicant :- Monu @ Vishal Paswan Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Bhriguram Ji, Shashi Shekhar Maurya Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Shri Rishi Chaddha, learned AGA contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC. By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 299 of 2023 at Police Station-Chauri Chaura, District-Gorakhpur under Sections 376, 363, 366 IPC and Section 3/4 POCSO Act. The applicant is in jail since 31.07.2023. The bail application of the applicant was rejected by the learned trial court on 22.09.2023. The following arguments made by Shri Shashi Shekhar Maurya, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Rishi Chaddha, learned AGA from the record, entitle the applicant for grant of bail:

¶1Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.

¶2The victim was wrongly shown as a minor of 17 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

¶3Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry in the school record. The school records disclosing her age as 17 years are unreliable.

(iii) The victim under in her statements under Sections 161 and 164 Cr.P.C. has stated that she is 17 years of age.

(iv) The medical report drawn up to determine the age of the victim opines that she is 17 years of age. Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.

¶4The applicant and the victim were intimate. Their relationship was opposed by the family members of the latter.

¶5The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. has admitted to intimacy with the applicant. The victim has asserted that she eloped with the applicant and got married to him of her own volition and she wants to stay with the applicant. Their marriage has been consummated.

¶6No allegation of commission of rape has been made against the applicant by the victim in the FIR as well as the statements under Section 161 and 164 CrPC.

¶7The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.

¶8Major inconsistencies in the statements of the victim under Sections 161 Cr.P.C. and Section 164 Cr.P.C. as well as the recitals in the F.I.R. discredit the prosecution case.

¶9Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

¶10The applicant does not have any criminal history apart from this case.

¶11The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending. In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant-Monu @ Vishal Paswan 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 below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. Order Date :- 6.11.2023 Jaswant High Court of Judicature at Allahabad