JUDGMENT :

SANJAY KUMAR SINGH, J.

1. Heard Shri Ashutosh Yadav learned counsel for the applicant and Shri Rabindra Kumar Singh, learned Additional Government Advocate representing the State.

2. By means of this application under Section 439 of Cr.P.C. applicant Asharam, who is involved in Case Crime No. 303 of 2022, under Sections 363, 366, 376, 506 IPC and ¾ of POCSO Act, police station Rajpura, district Sambhal, seeks enlargement on bail during the pendency of trial.

3. In short compass the facts of the case are that on 29.8.2022, the mother of the victim has given an application to the Superintendent of Police, (Public Grievance Cell), Sambhal to the effect that in respect of abduction, misdeed and threat to her daughter's life, she has given an application at the police station Rajpura, but neither her report has been lodged by the police nor victim was sent for medical examination. The report further alleges that on 24.8.2022, the minor daughter of informant aged about 17 years was enticed away by the applicant in respect whereof she made an application at the police station. Thereafter, applicant left her daughter outside her village. Her daughter told her that the applicant forcibly made physical relation with her and also threatened her of dire consequences in case she reports the matter to the police.

4. It is contended by learned counsel for the applicant that in respect of the incident dated 24.8.2022, the first information report has been lodged on 31.8.2022 and the victim was medically examined on 31.8.2022 for which no plausible explanation has been tendered by the prosecution.

5. Learned counsel for the applicant further submits that the informant in her statement under Section 161 Cr.P.C. has stated inter-alia that on 24.8.2022 when her minor daughter had gone to field, she was enticed away by the applicant and on the next day i.e. on 25.08.2022, he left her daughter outside the village. Her daughter told her that the applicant forcibly made physical relation with her. When second statement of the informant was recorded, she reiterated her earlier statement and has also stated that her daughter told her that the applicant disrobed her and committed misdeed/rape upon her. On being enquired, she stated that her daughter took bath and washed her clothes. On the basis of the aforesaid statement, it is argued that since victim took bath and washed her clothes, therefore, it could not be ascertained as to whether any sexual intercourse was done or not.

6. Referring the statement under Section 164 Cr.P.C. of the victim, much emphasis has been given by contending that the victim has stated that the applicant has committed misdeed with her. On putting query about the misdeed, she explained that the applicant took off her Paijami as well as his pant and lie down upon her. Much emphasis has been given by contending that disclosure made by the victim in her statement under Section 164 Cr.P.C. does not come with the purview of Section 375(c) IPC because the said provision will attract if the said manipulation was to cause penetration whereas in the present case as per statement under Section 164 Cr.P.C. of the victim, no penetration was done, therefore, said provision is not attracted.

7. Referring to the medical examination report of the victim, it is argued that there was no injury on the private part of the victim and in supplementary report, no spermatozoa was found and the doctor was of the opinion that no positive opinion can be given about sexual abuse. In support of his submission, learned counsel for the applicant has relied upon the following decisions:

1. Digamber Harinkhede and Another vs. State of Madhya Pradesh, Criminal Revision No. 1687 of 2013, decided on 16.12.2018

2. Santosh vs. State of Kerala, 2021 (3) KLJ 927

3. Chhefulson Snaitang vs. State of Meghalaya, Criminal Appeal No. 5 of 2020, decided on 14.3.2022

8. Learned counsel for the applicant next submitted that medical examination of the applicant was also not co