Hon'ble Ajay Bhanot,J.

Matter is taken up in the revised call.

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 Criminal Misc.

Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 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.

By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.419 of 2023 at Police Station-Shalimar Garden, District-Ghaziabad under Sections 363, 376 IPC and Sections 3/4 of POCSO Act. The applicant is in jail since 05.12.2023. The bail application of the applicant was rejected by the learned trial court on 21.12.2023. The following arguments made by Shri Vikash Chandra Tiwari, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Ajay Singh Yadav, learned counsel for the informant and Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:

 

1. The victim was wrongly shown as a minor of 16 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

2.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. and others (Criminal Misc. Bail Application No. 55026 of 2021) 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 16 years and 10 months are unreliable.

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

• The medical to determine the age of the victim was not drawn up at the time of arrest of the applicant. The medical of the victim was subsequently drawn up on the order passed by this Court on 12.03.2024 in the instant Criminal Misc. Bail Application No.2322 of 2024 (Aman @ Vansh v. State of U.P. and 3 others). The medical report opines that the age of the victim is about 17 years.

• Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.

 

3. The incident occurred on 09.11.2023 and the F.I.R. was got registered on 13.11.2023. 4. Delay of 4 days in lodgement of the F.I.R. in the facts of this case is fatal to the prosecution case.

5. The victim and the applicant were intimate. 6. The F.I.R. is the result of opposition of the victim's family to the said relationship with the applicant.

7. The victim in her statements under Section 161 Cr.P.C. and Section 164 Cr.P.C. has admitted to intimacy with the applicant. She has also asserted that she eloped with the applicant to Delhi of her own volition. The victim has lastly asserted that she got married to the applicant.

 

8. No allegation of commission of rape by the applicant with the victim was made in the F.I.R. or in the statements of the victim under Sections 161 Cr.P.C. and 164 Cr.P.C.

9. The victim was never confined or bound down in any manner. The victim was present at public places. She did not raise an alarm nor did she resist the applicant. Her conduct shows that she was a consenting party.

Click Here to Read the rest of this document