IMPORTANT POINT
The court emphasized the necessity of accurate age determination in POCSO cases, requiring reasoned medical reports and adherence to statutory provisions for bail applications.

JUDGMENT :

(Ajay Bhanot, J.)

1. Matter is taken up in the revised call.

2. Shri Paritosh Kumar Malviya, learned AGA-I for the State contends that the police authorities in compliance of the directions issued by this Court in Junaid Vs State of Uttar Pradesh and another, 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC.

3. By means of this bail application, the applicant has prayed to be enlarged on bail in Session Trial No.103 of 2024 arising out of Case Crime No.492 of 2023 at Police Station-Kotwali Dehat, District-Etah under Sections 376, 506, 120B I.P.C. and Section 3/4 of the POCSO Act, 2012. The applicant is in jail since 17.12.2023.

4. The bail application of the applicant was rejected by the learned trial court on 23.08.2024.

5. The following arguments made by Shri Shashi Kumar Mishra, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:

I. The victim was wrongly shown as a minor of 15 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause her imprisonment.

II. The age of the victim set out in the prosecution case is refuted in light of the judgement of this Court in Monish vs State of U.P., 2024 (6) ADJ 361 and on the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 15 years are unreliable.

(iii) The victim in her statement under Section 161 Cr.P.C. has stated that she is 15 years of age.

(iv) The medical report records the age of the victim as 13 years. The medical report has been drawn up in a mechanical manner and is bereft of all reasons. The scientific criteria and medical parameters on the basis of which the said age has been determined are not disclosed in the medical report. The said medical report is in the teeth of Section 27 of the POCSO Act read with Section 164A (2)(3) of the Cr.P.C.

(v) No medical examination in consonance with Section 27 of the POCSO Act read with Section 164A (2)(3) of the Cr.P.C. to determine the correct age of the victim as per the latest scientific criteria and medical protocol by competent doctors was got done and no such medical report was drawn up by the prosecution as it would establish the majority of the victim and falsify the prosecution case. The victim is in fact a major.

III. Delay in lodgement of the F.I.R. in the facts of this case is fatal to the prosecution case.

IV. The victim was intimate with the applicant. The couple had eloped together and got married.

V. Subsequently the victim and her husband became estranged. The victim returned her home after five months.

VI. False and aggravated allegations were made by the victim against the applicant only to deflect attention from her conduct.

VII. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.

VIII. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

IX. The victim has not identified the applicant as the principal offender who committed rape with her.

X. The applicant does not have any criminal history apart from this case.

XI. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of the applicant influencing wit