Lucky @ Himanshu Paswan v. State Of U.P. And 3 Others

Heard Sri Arjun Singh Yadav, learned counsel for the applicant and Sri V.K.S. Parmar, learned A.G.A. for the State and also perused the material placed on record.

Applicant seeks bail in Case Crime No. 105 of 2024, under Sections 363, 366, 323, 504, 506, 376(3) of IPC and Section 4(2) of POCSO Act, Police Station - Aung, District - Fatehpur, during the pendency of trial.

As per prosecution story, the applicant is stated to have abducted the minor daughter of the informant, aged about 15 years, on 03.09.2023 and had taken her to several places, committed rape thereby impregnated her and also recorded her indecent video. Subsequently, the applicant is stated to have got the said pregnancy terminated by showing the victim as his wedded wife.

The victim is stated to have been stayed with the applicant at Bengaluru. The applicant is stated to have threatened the victim to make her indecent video viral on social media.

Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. He has nothing to do with the said offence as alleged in the FIR. The FIR is delayed by about one year and there is no explanation of the said delay caused. There is nothing on record to suggest that the applicant had recorded any video of the victim.

Learned counsel has also stated that the victim is the consenting party as is evident from the fact that she had gone with the applicant from Fatehpur to Bengaluru and has not raised any alarm whatsoever. The victim by her looks seems to be major although as per ossification test report, her age has come out to be 16 years, as such, a leverage of two years may be granted to the applicant on upper side in light of law laid down by Supreme Court. There is no medical corroboration of the incident. There is no criminal history of the applicant. The applicant is languishing in jail since 09.09.2024 and he is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Per contra, learned AGA has vehemently opposed the bail application but unable to dispute the submissions raised by the learned counsel for the applicant and also the fact that the applicant has no criminal history.

With respect to the age of the victim, a leverage of two years can be granted to the applicant on the upper side in light of the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the age of the victim and the fact that the FIR is delayed by one year coupled by the fact that the victim had gone with the applicant from Fatehpur to Bengaluru and has not raised any alarm whatsoever which indicates towards her consent, I find it a fit case to release the applicant on bail. The bail application is allowed.

Let the applicant- Lucky @ Himanshu Paswan, who is involved in aforementioned case crime 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 subject to following conditions. Further, before issuing the release order, the sureties be verified. i) The applicant will not tamper with the evidence during trial. ii) The applicant will not pressurise/intimidate with the prosecution witnesses. iii) The applicant will appear before the trial court on the date fixed.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date:- 1.5.2025 Siddhant (Justice Krishan Pahal) SIDDHANT SAHU High Court of Judicature at Allahabad