Arvind Kumar Nishad v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44581 of 2023 Applicant :- Arvind Kumar Nishad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shiv Babu Dubey,Sonika Chakravarti,Sunil Kumar Dwivedi Counsel for Opposite Party :- G.A.,Babita Upadhyay,Himanshu Dubey,Yogesh Kumar Tripathi Hon'ble Ajay Bhanot,J. Shri Chandan Agrawal, 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. 305 of 2022 at Police Station-Pailani, District-Banda under Sections 363, 376, 506 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since

30.04.2023. The bail application of the applicant was rejected by the learned trial court on 03.10.2023. The following arguments made by Shri Shiv Babu Dubey, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Yogesh Kumar Tripathi, learned counsel on behalf of the informant and Shri Chandan Agrawal, 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 of age 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) 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 of the victim in the school records. The school certificate showing her age as 17 years and 6 months is not reliable.

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

(iv) Medico-legal examination (not the age determination test) records that the victim is 17 years of age.

(v) No medical examination to determine the correct age of the victim as per the latest scientific criteria and medical protocol by eminent doctors from a reputed institution was got done by the prosecution as it would establish the majority of the victim and falsify the prosecution case. The victim is in fact a major.

¶4The victim and the applicant were intimate.

¶5The F.I.R. is the result of opposition of the victim's family to the said relationship.

¶6The victim has repudiated the prosecution case in her testimony before the trial court. She has admitted to intimacy with the applicant. She has been declared hostile at the instance of the prosecution.

¶7The victim travelled to various public places with the applicant. She 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 FIR, the statement under Section 161 and 164 Cr.P.C. discredit the prosecution case.

¶9The applicant does not have any criminal history apart from this case.

¶10The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court 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-Arvind Kumar Nishad 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 :- 7.11.2023/Vandit High Court of Judicature at Allahabad