The severity of the offence, prima facie case, and presumption under Section 29 of the POCSO Act influenced the court's decision in rejecting the bail application.

JUDGMENT :

1. The case is called out. Learned counsel Sri Ashutosh Kumar, Advocate for the bail-applicant and learned Additional Government Advocate for the State are present through video conferencing in virtual hearing of the case.

2. The present bail-application is moved for and on behalf of accused-applicant-Utkarsh Patel @ Utkarsh @ Uttu @ Raj Patel, aged about 18 years, involved in Case Crime No. 64 of 2021 registered under Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 at Police Station Banthra, District Lucknow.

3. Counter affidavit and rejoinder affidavit have already been exchanged between the parties of the case. The case is ripe for hearing.

4. The occasion of present bail-application arisen on rejection of bail-plea of the accused-applicant by learned Special Judge, POCSO Act/Addl. Sessions Judge, Lucknow vide order dated 12.07.2021.

5. The victim of the incident is approximately 4 years' old girl child (whose name is not being disclosed and in place of her name the word ‘victim’ shall be used hereinafter in view of Section 228-A of the Indian Penal Code). The First Information Report lodged on behalf of the victim by her mother on the same day of incident dated 25.02.2021 reveals that when the victim child was playing outside her house at about 2:30 p.m., the accused-applicant Utkarsh @ Uttu picked and taken away her to his house where he teased her sexually and threatened, if she tells the incident to anybody else, she will be killed. The victim came to her house weeping and stated the incident to her mother. The complainant-mother and father of the victim approached the police station with their daughter to lodge the First Information Report accordingly.

6. Primarily, the offence was registered under Section 354-A, 323, 506 IPC alongwith Section 11/12 of the POCSO Act. During the investigation the child was subjected to medico legal examination with regard to sexual violence two days after the incident on 27.02.2021. The help of interpreter was taken and the version of the child with regard to the incident, as told to the interpreter, was recorded, according to which on 25.02.2021 at 2:30 p.m. when she was playing outside her house, the accused Utkarsh @ Uttu seeing lonely picked and taken away her to his house where he teased her sexually and threatened to life. No injury on the person and private part of the child is reported. The age of the victim child was medically assessed on the basis of medico legal examination as well as from her school certificates bearing date of birth 13.09.2016, approximately 4 year and 6 months' on the date of incident. She told doctors during her medico legal examination that the accused tried to put his penis in the vagina of girl child.

7. The bail application is moved on behalf of the present accused-applicant under Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012. The Section 376AB IPC makes punishable the offence of rape under 12 years’ age victim whereas the offence under Section 5 of the Protection of Children from Sexual Offences Act, 2012 defines the aggravated penetrative sexual assault enumerating several acts of the like nature, one of which is, whoever commits penetrative sexual assault on a child causing grievous hurt or causing bodily harm injury or injury to the sexual organs of the child, shall be punished under Section 6 of the Act with rigorous imprisonment of term which shall not be less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the reminder of natural life of that person and shall also be liable to fine or both.

8. Learned AGA by filing counter affidavit in para 12 has stated that truth of the matter is that the offence committed by the accused is heinous in nature. During investigation, sufficient evidences of committing the offence by the accused are obtained on the basis of which he is arraigned u