The central legal point established in the judgment is the interpretation of the victim's statements, medical examination reports, and the legal provisions of Section 375 (a) of I.P.C. and Section 29 of POCSO Act in determining the offense of rape and the decision on the bail application.

JUDGMENT :

1. By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 587 of 2022, under Sections 376 of I.P.C. & Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station-Tilahar District-Shahjahanpur, seeks enlargement on bail during the pendency of trial.

2. Heard Shri Manish Tiwary, learned Senior Counsel for the applicant and Shri Rabindra Kumar Singh, learned Additional Government Advocate representing the State.

3. As per the prosecution case in brief, informant who is father of the victim lodged First Information Report on 07.8.2022 against the applicant-Jaiveer alleging inter alia that on 07.08.2022 at about 1:00 pm, his daughter aged about 14-15 years had gone to attend the call of nature in the sugarcane field of Rajesh, where the accused-applicant with intention to commit rape forcible dragged her to the field of sugarcane and committed rape on her. His daughter came home crying and told the whole incident to her mother.

3.1.Victim was medically examined on 07.08.2022 at about 09:48 PM and at that time she told the doctor that when I had gone to attend the call of nature in the field, accused caught me and forcibly committed wrong by mouth. The statement of victim in Hindi is reproduced herein under:-

^^ihfM+rk ds vuqlkj og 'kkSp ds fy;s [ksr esa x;h Fkh rHkh vkjksih ogka ij idM+ fy;k vkSj tcjnLrh eqag ds }kjk xyr dke fd;kA

3.2. ictim in her statement under Section 161 Cr.P.C. dated 07.08.2022 has stated inter alia that the applicant caught hold of me and took me to the field with bad intention. When I screamed, he shut my mouth and tore my cloth (salwar). He tried to do misdeed with me and he did wrong in my mouth. The statement of victim in Hindi is reproduced herein under:-

3.3 Victim in her statement under Section 164 Cr.P.C. has stated inter alia that the applicant grabbed me from behind and removed my salwar. When I screamed, he covered my mouth from his hand and he did wrong thing in my mouth. He put his penis in my mouth. With great difficulty I could let go of myself. The statement of victim in Hindi is reproduced herein under:-

4.It is argued by the learned counsel for the applicant that as per medical examination report of the victim, there is no sign of use of force. As per supplementary report dated 08.08.2022 of the victim, she is aged about 17 years and there are no sign suggestive of penetration of oral cavity. There is inconsistency in the version given in the FIR and the statement of the victim before doctor as well as statement under Section 161 Cr.P.C. It is also submitted by the learned counsel for the applicant that considering the statement under Section 161 Cr.P.C. of the victim no offence of rape is made out, because several sexual act, which are done by mouth do not come under the definition of rape but considering her statement under Section 164 Cr.P.C., offence of rape is made out. In this regard, it is further submitted that the initial allegation of the victim against the applicant was gradually improved by the victim in her statement under Section 164 Cr.P.C., which was recorded after ten days of the occurrence and, therefore, the possibility of her being tutored cannot be ruled out. Lastly, it is submitted that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant does not have any criminal history and has been languishing in jail since 08.8.2022.

5.On the other hand learned A.G.A. for the state opposed the prayer for bail of the applicant by contending that at the time of medical examination of the victim, doctor has also noted in column no 15F of medical examination report that it is a case of penetration by penis in the mouth of the victim. The statement under Section 161 Cr.P.C. of the victim has been recorded by audio and video means by woman constable, which has been made part of the case diary. Site plan was prepared by the inve