Neutral Citation No. - 2025:AHC:66986 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42195 of 2024 Applicant :- Durgesh Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Deepankar Shukla,Mukesh Kumar Pandey Counsel for Opposite Party :- Chinta Mani,G.A.,Prashant Yadav,Rajeev Kumar Hon'ble Krishan Pahal,J. 1. List has been revised. 2. Heard Sri Deepankar Shukla, learned counsel for the applicant and Sri Rajeev Kumar, learned counsel for the informant as well as Sri Pranshu Kumar, learned A.G.A. for the State and perused the material placed on record. 3. Applicant seeks bail in Case Crime No. 371 of 2024, U/S 70(2) B.N.S. and 5(g)/6 POCSO Act, Police Station Ajitmal, District Auraiya, during the pendency of trial. PROSECUTION STORY: 4. The applicant is stated to have committed rape with the victim near the agricultural field by tying a handkerchief on her face and taking her to an under-constructed guest house located nearby on 19.8.2024 at about 8.30 pm. ARGUMENTS ON BEHALF OF THE APPLICANT: 5. The applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. He has nothing to do with the said offence. 6. The FIR is delayed by about 18 hours and there is no explanation of the said delay caused. 7. The victim, as per ossification test report, is stated to be 15-16 years old, as such, a leverage of two years may be granted to the applicant on the upper side. 8. The victim is the consenting party, as is evident from her statement recorded u/s 183 B.N.S.S., whereby she has stated that earlier on, she used to talk to the applicant for about three months but subsequently, the applicant started talking to some other girl, as such, she discontinued the said conversation with him. On the fateful night, the victim had told the applicant that she was going to agricultural field, as such, he came there and raped her. The victim has categorically stated that she did not resist the said act of the applicant. She has further stated that she was seen by her mother, who was passing nearby, as such, when she reached her house, she was beaten up by her uncle and aunt (chacha and chachi). 9. The injuries sustained by the victim are not on her internal body part, rather they are external injuries, which could have been caused on being assaulted by the her uncle and aunt, as the said fact has been stated by the victim in her statement u/s 183 B.N.S.S. 10. There is no criminal history of the applicant. The applicant is languishing in jail since 21.8.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail. ARGUMENTS ON BEHALF OF INFORMANT/STATE: 11. The bail application has been opposed on the ground that the victim being minor, aged about 15-16 years, as such, her consent, if any, cannot be taken into consideration in the eyes of law. She has sustained injuries and many of them are nail marks, as such, it is a clear-cut case of rape. CONCLUSION: 12. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, the FIR being delayed by about 18 hours, the age of the victim being 15-16 years as per ossification test report, the statement of the victim that she did not resist the said act committed to her, coupled by the fact that admittedly she was assaulted by her uncle and aunt, without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 13. Let the applicant- Durgesh Kumar involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. (i) The applicant shall not tamper with evidence. (ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. 14. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. 15. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 28.4.2025 Shalini (Justice Krishan Pahal) Digitally signed by :- SHALINI JAISWAL High Court of Judicature at Allahabad