The presumption of guilt under the POCSO Act applies, and the significant age difference between the accused and the victim renders the alleged crime particularly heinous.

JUDGEMENT

1. The petitioner has filed the instant application under section 439 of the Code of Criminal Procedure seeking bail in a case arising out of FIR No. 100/2023 for offences under sections 376/511, 354, 354-B, 354-C IPC and Section 8 of POCSO Act registered with Police Station, Billawar, Kathua.

2. The facts leading to filing of present bail application are that the complainant, who happens to be the father of the victim, lodged a report with the Police Station, Billawar alleging therein that on 09.07.2023, he alongwith his daughter had gone to attend the marriage ceremony in their mohallah. He further alleged that the petitioner, who was working as a driver with Bus No. JK02AX-5083 had come over there with the Barat. It was further alleged that when the victim went behind the tent for urination, the petitioner who was waiting over there carried the victim to a field alongwith him. It was further alleged in the report that when the complainant could not find her daughter, he went out to search for her and found her in the field without cloths on her body. The victim told the complainant that she had been taken away by the petitioner to the field and thereafter, he had torn apart her apparels and tried to commit rape upon her.

3. On the basis of the aforesaid report, FIR No. 100/2023 for commission of offences under sections 376/511, 354, 354-B, 354-C IPC and Section 8 of POCSO Act came to be registered and investigation was set into motion. During investigation of the case, the statement of the victim under section 164 Cr.P.C. was also recorded.

4. In her statement under section 164 Cr. P.C, the victim stated that in the month of July, 2023 on a Sunday, when she alongwith her parents and siblings, had gone to attend a marriage, upon arrival of the Barat, she went behind the tent to urinate and in the meantime, a person came over there, who caught hold of her arm and gagged her month and thereafter she was taken to a field. She further stated that she was pushed on the ground by the said person and he opened her trouser and unzipped his pant. She went on to state that the said person forced himself upon her and with great difficulty she was able to get herself free from his clutches. She also stated that when the people came over there, the assailant ran away from the spot, leaving his towel behind. The victim also stated that the assailant expressed his desire to marry her.

5. During investigation of the case, material regarding age of the victim was collected and it was found that the victim was aged 10 years at the relevant time. After investigation of the case, offences under sections 376/511, 354, 354-B, 354-C IPC and Section 8 of POCSO Act were established against the petitioner and the challan was laid before the Court.

6. It appears that the petitioner had approached the learned trial court for grant of bail but his bail application has been dismissed by the learned trial court vide its order dated 20.10.2023.

7. The petitioner has sought bail on the grounds that there is ambiguity in the statement of the victim. It has been also contended that the order of rejection of bail application passed by the learned trial court is bereft of any reasons. It has been further contended that offence under sections 376/511 IPC as also offence under section 8 of the POCSO Act are not made out against the petitioner. It has also been contended that even if the allegations made in the charge sheet are assumed to be correct, still then the petitioner has not committed any offence, which carries a severe punishment, as such, he deserves to be admitted to bail. Lastly, it has been contended that the charge sheet has already been produced before the trial court and even if the petitioner is admitted to bail, no prejudice is going to be caused to the official respondent, who has already completed the investigation of the case.

8. The respondents have resisted the bail application on the ground that the petitioner has committed serious offen