Point of law: The provision of Section 29 provides for a presumption as to certain offences. It provides that where a person is prosecuted for violating any of the provisions under Section 3, 5, 7 and 9 of the Act and where the victim is a child, below the age of 16 years, the Special Court shall presume that such person has committed the offence unless the counter is proved. The offence against the accused-applicant bears a reverse burden of proof, therefore, their argument as to the lack of evidences against them for proving the offence committed by them is not tenable.

JUDGMENT :

Vikas Kunvar Srivastav, J.

1. These two bail applications for releasing the accused persons on bail are moved before this Court under Section 439 of the Cr.P.C..

2. The accused-applicants, Pankaj Kori in Criminal Misc. Application No.6614 (B) of 2020 and Dhermendra Yadav in Criminal Misc. Application No.6572 (B) of 2020 are involved in Case Crime No.08/2020, under Sections 302/328/376D of I.P.C., Sections 5/6 of POCSO Act and Section 3(2)(5) of S.C./S.T. Act, registered at Police Station Fursatganj, District Amethi.

3. The accused-applicants, Pankaj Kori and Dharmendra Yadav moved their bail applications before the Special Judge, POCSO Act, Raebareli, respectively bail applications no.1109 of 2020 and 1100 of 2020 which were heard and rejected by a consolidated order dated 19.08.2020.

4. For the bail-applicant, Pankaj Kori, learned counsel Sri Dileep Kumar Pandey, Advocate and for the accused-applicant, Dharmendra Yadav, learned counsel Sri Dhirendra Pratap Singh, Advocate appeared through video conferencing for virtual hearing.

5. Learned A.G.A. on behalf of State Sri Rajiv Verma, Advocate also appeared before the Court in virtual hearing through video conferencing.

6. Since the matter pertains to Section 376-D of Indian Penal Code, 1860 and Section 5/6 of The Protection of Children from Sexual Offences (POCSO) Act, 2012 alongwith Section 3(2)(5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 coupled with Section 302 and 328 of Indian Penal Code, 1860, therefore, pursuant to the order of the Court dated 23.09.2020, notice of bail applications was issued by the office to be served through Chief Judicial Magistrate, Sultanpur. Office has reported that the notice is served personally on the opposite party no.2, the father of the victim/informant. State has filed it's counter affidavit.

7. Briefly the case is that the Ram Kishor Pasi, resident of village Poore, Hanumat Mazare, Mohaiya Kesaria, Police Station Fursatganj, District Amethi complained before the Special Court, POCSO Act under Section 156(3) Cr.P.C. that his minor daughter aged about 16 years informed him on mobile phone on 29/30.04.2019 at about 12:30 A.M. that the accused, native villager of his village namely Pankaj Kori and Dharmendra Yadav respectively 25 years and 30 years of age committed rape on her and thereafter administered forcibly poison by reason of which, she is feeling extreme thirst of water and lying helpless below a mongo tree in the grove of Akhilesh. The complainant rushed up alongwith his wife and brother, Ram Bahadur on the spot and his daughter reiterated about incident as she had informed telephonically to him. She further told that the accused persons have filled up her vagina with soil. At that time, the informant's daughter, the victim was alive. He brought her at his home and after informing the police on their assurance, began to manage to take her to hospital. The entire family stayed waiting the police for a long but she could not be taken to the hospital until she was alive and suffering severe pain, ultimately she died. The police reached the complainant's home at about 06:00 A.M. after her death.

8. A complaint in writing against the accused persons was got written by the informant-father, the police carried away the dead body of the victim in police station, where accused persons were also found present, talking and whispering with S.I. Santosh Kumar Singh. Pursuant thereto, the S.I. started threatening to the informant and his family members that they would be committed to jail by him and their report will not be registered nor the post mortem will be done unless his demand of Rs.15,000/-is not fulfilled. The informant under compulsion, any how managed the amount of Rs.15,000/-and paid to him. The S.I. got complainant's thumb impression on 3 to 4 blank papers, sent the body for post mortem but did not register the first information report. He began to avoid the informant and also did not handover the p