Mithun Paswan Vs State of U.P. and 3 Others

Neutral Citation No. - 2025:AHC:13091

Court No. - 5

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 529 of 2025 Applicant :- Mithun Paswan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Matter is taken up in the revised call.

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Shri Chandan Agarwal, learned AGA-I for the State 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.

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By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.48 of 2018 at Police Station-Belipar, District-Gorakhpur under Sections 363, 376D, 504, 506 IPC and Sections 3/4 of POCSO Act. The applicant is in jail since 18.11.2024.

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The bail application of the applicant was rejected by the learned trial court on 17.12.2024.

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The following arguments made by Shri Arvind Prabodh Dubey, learned counsel on behalf of the applicant, which

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could not be satisfactorily refuted by Shri Chandan Agarwal, learned AGA-I from the record, entitle the applicant for grant of bail:

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The victim was wrongly shown as a minor in the prosecution case only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

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2.The age of the victim set out in the prosecution case is refuted 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:

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

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

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

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(iv). The medical report drawn up by the Chief Medical Officer, Gorakhpur to determine the age of the victim opines that she is 18 years of age. The victim is infact major.

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The incident occurred on 26.01.2018 and the F.I.R. was got registered on 31.01.2018.

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Delay of five days in lodgement of the F.I.R. in the facts of this case is fatal to the prosecution case.

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The prosecution case set out in the F.I.R. is that the victim left her house after she was upbraided by her parents.

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The victim in her statements under Section 161 Cr.P.C. and Section 164 Cr.P.C. has admitted that she came to the house of the applicant of her own volition after she was scolded by her parents.

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However, in the latter parts of the F.I.R., as well as the statements of the victim, false and aggravated allegations were made against the applicant and his brother only to save the failing prosecution case and deflect attention from the victim's conduct.

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The victim left the applicant's house in the evening and was dropped off at her place by the applicant. The applicant convinced the victim to go back to her house.

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The victim was never confined or bound down in any manner. The victim was present at public places with brother of the applicant. She did not raise an alarm nor did she resist the applicant. Her conduct shows that she was a consenting party.

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Major 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

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case.

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

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The co-accused Mukesh has already been enlarged on bail by this Court by order dated 21.05.2024 passed in Criminal Misc. Bail Application No. 11519 of 2024. The case of the applicant stands at a better footing however he seeks parity for grant of bail.

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The applicant does not have any criminal history apart from the instant case.

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The 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.

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In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

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Let the applicant- Mithun 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:-

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(i) The applicant will not tamper with the evidence or

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influence any witness during the trial.

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(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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The learned trial court is directed to fix the sureties after due application of mind in light of the judgement rendered by this Court in Arvind Singh v. State of U.P. Thru. Prin. Secy. Home Deptt. (Application U/S 482 No.2613 of 2023) .

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The learned trial court shall ensure that the right of bail of the applicant granted by this Court is not frustrated by arbitrary demands of sureties or onerous conditions which are unrelated to the socioeconomic status of the applicant.

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Order Date :- 24.1.2025 Pravin

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Court No. - 5 Criminal Misc. Amendment Application No. Nil of 2025 In Case :- CRIMINAL MISC. BAIL APPLICATION No. - 529 of 2025 Applicant :- Mithun Paswan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Heard.

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The amendment application is allowed.

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Necessary amendment be carried out during the course of the day.

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Order Date :- 24.1.2025 Pravin

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Digitally signed by :- PRAVIN VERMA High Court of Judicature at Allahabad