Allowed

Aman Paswan v. State of U.P. and 3 Others

Allahabad HC24 Jul 2023BAIL/28775/2023

Case brief

AI extract

What is this about?

This Criminal Miscellaneous Bail Application by Aman Paswan, a named accused in a POCSO and kidnapping case, was allowed. The court noted medical evidence did not support sexual assault allegations and prosecutrix statements were inconsistent, despite the nature of the charges.

What did the court decide?

Applicant to be released on bail on personal bond and two sureties with conditions to attend court and not tamper with evidence.

Aman Paswan Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:146733

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28775 of 2023

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Applicant :- Aman Paswan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anand Prakash Srivastava,Sugendra Kumar Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Pulak Ganguli Advocate holding brief of Mr. Sugendra Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State

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Perused the record.

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At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party-2. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose this application for bail.

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Instant bail application has been filed by applicant-Aman Paswan seeking his enlargement on bail in Case Crime No. 176 of 2023 under Sections 363, 366, 376 I.P.C. and sections 3/4 POCSO Act, Police Station-Chauri Chaura, District-Ghorakhpur, during the pendency of trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 19.04.2023, a delayed F.I.R. dated 21.04.2023 was lodged by first informant Rajesh Yadav (father of the prosecutrix) and was registered as Case Crime No. 176 of 2023

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under Sections 363, 366, 376 I.P.C. and sections 3/4 POCSO Act, Police Station-Chauri Chaura, District-Ghorakhpur. In the aforesaid F. I.R., two persons namely Aman Paswan and Abhishek Paswan have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R is to the effect that named accused forcibly kidnapped the daughter of first informant.

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After aforementioned F.I.R. was lodged, the prosecutrix was recovered on 24.04.2023. Thereafter, her statement under Section 161 Cr.P.C. was recorded, which is on record at page 46 of the paper book. In her aforesaid statement, prosecutrix has not completely supported the F.I.R. Subsequently, prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before Doctor has reiterated her earlier statement recorded under Section 161 Cr.P.C. The Doctor, who medically examined the prosecutrix did not find any signs on her body so as to denote commission of sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same is in negative. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 50 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr.P.C.

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During course of investigation, Investigating Officer obtained High School Certificate/Marks-sheet of the prosecutrix. As per aforesaid certificate, the date of birth of the prosecutrix as recorded in the School record is 01.02.2007. The occurrence giving rise to present applicant has occurred on 19.04.2023. As such, on the date of incident, the prosecutrix was aged about 16 years and 2

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months .

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During course of investigation, Investigating Officer examined other witnesses including first informant under Section 161 Cr.P.C., who have substantially supported the F.I.R. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that provisions of Sections 366, 376 I.P.C. and Section 3/4 POCSO Act are also attracted. Ultimately, Investigating Officer submitted the chargesheet dated 11.05.2023 against applicant whereby the applicant has been charge-sheeted under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act.

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Learned counsel for applicant submits that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. He submits that prosecutrix is above 16 years of age as per her High School Certificate. The prosecutrix is a willing and consenting party. It is then contended that as per medical evidence, it is not explicitly clear that prosecutrix was sexually assaulted by the applicant. Statement of the prosecutirx under Sections 161/164 are inconsistent and contradictory. No explanation regarding the same has come either. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 06.05.2023. As such, he has undergone more than two months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. To

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buttress his submission he has relied upon the judgement of the Supreme Court in Sumit Subhash Chandra Gangawal and another Vs. State113 of Maharashtra and another 2023 Live Law SC 373 (paragraph 5) He therefore contends that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed the present bail application. He contends that since the applicant is a named as well as charge-sheeted accused therefore he does not deserve any indulgence by this Court. From the material on record, offence under Section 3/4 POCSO Act and Section 366 I.P.C. is clearly made out against applicant. The prosecutrix is a young girl aged about 16 years. As such, her consent if any is immaterial. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that medical evidence does not support the commission of sexual assault upon the prosecutrix, the inconsistency in the statement of prosecutrix recorded under Section 161/164 Cr.P.C., the same having not been explained the charge sheet having been submitted therefore the entire evidence sought to be relied upon by the prosecution stands crystalized, learned A.G.A. could not point out any such circumstance necessitating the custodial arrest of applicant during the course of trial, the judgement of Supreme Court in Sumit Subhash Chandra Gangawal and another (supra), the clean

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antecedent of the applicant, the period of incarceration undergone but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly the bail application is allowed .

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Let the applicant -Aman Paswan involved in aforesaid case crime number be released on bail on his 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:-

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(i) Applicant will not tamper with prosecution evidence.

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(ii) 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.

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(iii) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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The 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 of applicant and send him to prison.

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Order Date :- 24.7.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Aman Paswan v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Aman Paswan v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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