Point of Law: While deciding the bail application, this Court will not minutely scan the evidence collected by the Investigating Agency or the statements recorded before the learned trial Court.

ORDER :

Petitioner is accused in case registered vide FIR No. 23 of 2021 dated 21.04.2021 at Police Station, Pachhad, District Sirmaur, H.P. under Sections 363, 366-A, 376 of IPC and Section 6 of the POCSO Act, 2012.

2. The case has been registered against the petitioner on the basis of written complaint submitted by Smt.Pushpa Devi, mother of the victim on 21.04.2021 at Police Station, Pachhad, District Sirmaur, H.P. It was alleged that the complainant had three children, the eldest was a daughter aged 17 years, younger to her, the victim was 16 years and youngest was the son. All three children were studying in GSSS, Rama. The petitioner had acquaintance with the husband of the complainant. In November, 2020, the petitioner had kidnapped her daughter (victim) and after three days had left her with them. On 17.4.2021, the complainant alighted with the victim from bus at Sarahan and victim fled after dodging her mother. The entire family with the help of others searched for the victim for many days, but could not trace her. Accordingly, on 21.4.2021 the complaint was lodged.

3. During investigation the petitioner was traced at Chirgaon on 31.10.2021 through his mobile phone location. Accordingly, the police recovered the victim from the company of the petitioner as they were staying in Chirgaon in the house of one Dev Raj. On medical examination of the victim, she was found pregnant. The fetus was aborted. Necessary samples were preserved. On DNA profiling, the victim and petitioner were found to be biological parents of the fetus. The age of the victim was said to be 15 years 9 months and 13 days on the date of offence.

4. Petitioner was arrested on 06.11.2021, after initial police remand, he is in judicial custody.

5. By way of instant petition, a prayer has been made to release the petitioner on bail under Section 439 Cr.P.C. on the ground that the petitioner is innocent. In fact, the petitioner had married the victim, who according to petitioner, was major. Petitioner is stated to be permanent resident of Village Lana Khurd, P.O. Thakur Dwara, Tehsil Pachhad, District Sirmaur, H.P. Petitioner has undertaken to abide by the conditions as may be imposed against him.

6. I have heard Mr. Ashok K. Tyagi, learned counsel for the petitioner and Mr. Desh Raj Thakur, learned Additional Advocate General for the respondent and have also perused the contents of the status report.

7. Petitioner has annexed a copy of statement of victim recorded under Section 164 Cr.P.C. during investigation of the case. Copies of statements of the victim and her mother complainant recorded during the trial of the case, have also been placed on record.

8. Learned counsel for the petitioner has contended that there is no legal basis for determining the age of victim at 15 years 9 months. According to him, the victim is major. The basis of her age being 15 years 9 months, according to prosecution, is the entry in Aadhar Card as also the school record. It has been submitted that both these entries have been made at the instance of her parents, whereas, there is no authentic proof as to her date of birth. Learned counsel for the petitioner has drawn the attention of this Court to the statements made by the mother of the victim in the Court, wherein she stated that her marriage was solemnized prior to the year 2000. The victim was her eldest daughter and was born after about one year of the marriage. On such basis, learned counsel for the petitioner submits that there is a serious dispute as to the age of the victim.

9. While deciding the bail application, this Court will not minutely scan the evidence collected by the Investigating Agency or the statements recorded before the learned trial Court, however, such material can always be looked into in order to assess the seriousness and gravity of allegations against the bail petitioner.

10. Coming to the facts of the case, the victim was recovered from the company of the petitioner after about six months. The victim has