JUDGMENT :

1. Heard Shri Prabhat Kumar Mishra, Advocate holding brief of Shri Rahul Kumar Shukla, learned counsel for the applicant, Shri Rajesh Kumar Singh, learned AGA-I for the State and Shri Dilip Kumar Pandey, learned counsel for the complainant and perused the record.

2. The present bail application has been filed by the applicant Sandeep Kumar with a prayer to enlarge him on bail in Case Crime No.055 of 2022, under Sections-363, 366, 376(3) I.P.C., and Section 5/6 of The Protection of Children from Sexual offences (POCSO) Act, Police Station - Shivratanganj, District Amethi.

3. Learned counsel for the applicant has submitted that the First Information Report was lodged by mother of the prosecutrix under Sections 363, 504 IPC on 06.04.2022. As per version of the First Information Report, she has stated that her daughter was missing. She further stated that she had gone to the house of Kusma, wife of Vinay Rawat and asked whereabout of her daughter but she was scolded by her and her family members.

4. Learned counsel submitted that the prosecutrix was recovered after one month 26 days and in her statement recorded under Section 164 Cr.P.C., she has deposed that she had gone to Haryana with the applicant out of her own free will. She has performed marriage in the temple and used to reside with the applicant as his wife. She has further deposed that police had taken her in custody on 28.05.2022 and took her to Raebareilly Station and deposed that she did not want to contest the case.

5. Learned counsel further submitted that the prosecutrix refused for internal medical examination. As per ossification test, it was found that the prosecutrix was more than 18 years and was major. It is further submitted that as per Pariwar register, the date of birth of the applicant is recorded as 2004 and she is more than 18 years of age. Learned counsel for the applicant has submitted that though school leaving certificate indicates the date of birth as 12.05.2006 and appears to be minor but looking to the other relevant documents i.e. Pariwar Register and ossification test, it is evident that the prosecutrix is more than 18 years of age. Learned counsel submitted that it is a case of consent and as per the statement of the prosecutrix, it has come on record that she has performed marriage with applicant and she had gone along with the applicant to Haryana.

6. In support of his contention, learned counsel for the applicant has placed reliance upon a judgment of the Apex Court reported in 2023 LiveLaw (SC) 538 P. Yuvaprakash vs. State Rep. by Inspector of Police. The relevant para nos. 14 and 19 of the judgment are quoted below :

"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e, the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not a