Neutral Citation No. - 2025:AHC:82808 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4621 of 2025 Applicant :- Shubham Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sadhana Maurya Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J. 1. List has been revised. As informed by learned State Law Officer, notice to the informant has been served on 02.02.2025 but none is present on behalf of the informant. 2. Rejoinder affidavit filed today by the learned counsel for the applicant is taken on record. 3. Heard Sri Amar Bahadur Maurya, Advocate holding brief of Ms. Sadhna Maurya, learned counsel for the applicant and Ms. Ifrah Islam, learned State Law Officer and also perused the material placed on record. 4. Applicant seeks bail in Case Crime No. 0090 of 2024, under Sections 363, 342, 376-D(A) of IPC and Sections 5/6 of POCSO Act, Police Station - Maharajganj, District - Jaunpur, during the pendency of trial. 5. As per prosecution story, the applicant along with co-accused persons Komal and Chandrabhan is stated to have enticed away the minor daughter of the informant on 25.05.2024. There is no time of offence mentioned in the FIR. 6. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. He has nothing to do with the said offence as alleged in the FIR. The FIR is delayed by about six days and there is no explanation of the said delay caused. The FIR indicates that the victim was retrieved but in spite of her retrieval, there is no allegation of rape or gang rape mentioned in it. It has plainly been registered u/s 363 IPC, as such, the allegation of rape cannot be believed. 7. Learned counsel has also stated that in the statement of the victim recorded u/s 164 Cr.P.C., the allegations have been escalated to that of gang rape but the name of the applicant has not been mentioned in it but after a delay of four months, it has been mentioned by the victim that she had mentioned the name of the applicant as Sunny in the said statement recorded u/s 164 Cr.P.C., as such, the applicant is entitled for bail. 8. Learned counsel has next contended that the victim by her looks seems to be major although as per ossification test report, her age has come out to be 16 years, as such, a leverage of two years may be granted to the applicant on upper side in light of law laid down by Supreme Court. There is no criminal history of the applicant. The applicant is languishing in jail since 08.10.2024 and he is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail. 9. Per contra, learned State Law Officer has vehemently opposed the bail application on the ground that as per ossification test report, the victim is minor, as such, the applicant is not entitled for bail. However, she could not dispute the fact that the applicant has no criminal history. 10. With respect to the age of the victim, a leverage of two years can be granted to the applicant on the upper side in light of the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side. 11. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, delay of six days in lodging the FIR coupled by the fact that the victim was already there with the applicant at the police station and there is no whispering about the gang rape in the instant FIR and there being no medical corroboration of the incident, I find it a fit case to release the applicant on bail. The bail application is allowed. 12. Let the applicant- Shubham, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. i) The applicant will not tamper with the evidence during trial. ii) The applicant will not pressurise/intimidate with the prosecution witnesses. iii) The applicant will appear before the trial court on the date fixed. 13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 14. 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:- 17.5.2025 Siddhant (Justice Krishan Pahal) Digitally signed by :- SIDDHANT SAHU High Court of Judicature at Allahabad