Rajeev Misra,J.

1. Heard Mr. Ravi Shankar Tripathi, learned counsel for applicant Ray Singh and Mr. Rajesh Pathak, learned counsel for applicant Satish, learned A.G.A. for State and Mr. N.K. Singh, learned counsel for first informant.

2. These applications for bail have been filed by applicants Ray Singh and Satish seeking their enlargement on bail in Case Crime No. 123 of 2021, under Sections 363, 376(D) IPC and Sections 5/6 POCSO Act, P.S. Zarifnagar, District Budaun, during pendency of trial.

3. Perused the record.

4. Criminal Misc. Bail Application No. 50106 of 2021 (Satish Vs. State of U.P.) came up for orders on 3.2.2022 and this Court passed following order:-

"Case called out in revised list.

Learned counsel for applicant and learned A.G.A. for State are connected virtually, whereas learned counsel for first informant is not connected.

At the very outset, learned A.G.A. submits that Criminal Misc. Bail Application No.50986 of 2021 (Ray Singh Vs. State of U.P. and 3 Others) filed by co-accused is already pending before this Court.

In view of above, connect aforementioned criminal misc. bail application along with this bail application.

Matter shall re-appear as fresh on 10.02.2022 along with connected matter."

5. Pursuant to aforesaid order, both the bail applications have been connected and listed together. Since both the bail applications arise out of same case crime number, they have been heard together and are now being disposed of finally by a common order.

6. Record shows that in respect of an incident, which is alleged to have occurred on 27.05.2021, a delayed F.I.R. dated 01.06.2021 was lodged by first informant Ramesh (father of prosecutrix) and was registered as Case Crime No. 123 of 2021, under Sections 363, 376(D) IPC and Sections 5/6 POCSO Act, P.S. Zarifnagar, District Budaun. In the aforesaid F.I.R., two persons namely Satish and Ray Singh (applicants herein) have been arraigned as named accused.

7. In brief, according to the prosecution story as unfolded in the F.I.R., it is alleged that on 27.5.2021 at around 7 p.m. named accused enticed away the minor daughter of first informant namely Saroj aged about 16-17 years.

8. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The prosecutrix was recovered on 03.06.2021. Thereafter, the statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr. P. C. Same is on record as Annexure 3 to the affidavit. Prosecutrix in her aforesaid statement has not supported the prosecution story. She has further stated that she herself accompanied the applicant Ray Singh and thereafter she accompanied with him to New Delhi. Thereafter, prosecutrix was medically examined. Her medico legal examination report is on record as Annexure 4 to the affidavit. Prosecutrix in her statement before the Doctor has not supported the prosecution story as unfolded in the F.I.R., but has reiterated her earlier statement as recorded under Section 161 Cr. P. C. The Doctor who medically examined the prosecutrix and did not find any signs of injury on the body of the prosecutrix nor did he find any such injury which may suggest commission of penetrative sexual assault upon the prosecutrix. Certain samples were taken from the body of the prosecutrix for pathological examination. However, supplementary medico legal examination report of the prosecutrix has not been brought on record. This Court, vide order dated 8.3.2021 passed in Criminal Misc. Bail Application No. 50986 of 2021 (Ray Singh Vs. State of U.P.) had directed the learned counsel for applicant to bring on record the supplementary medico legal examination report of the prosecutrix. However, same has not been brought on record. Learned A.G.A. contends that as per the instructions received by him, supplementary medical legal examination report of the prosecutrix is not part of the case diary. Thereafter, statement of prosecutrix was recorded under Section 164 Cr. P. C. Same is on record as Annexure 6 to the affidavit. The prosecutrix in her aforesaid statement has taken a somersault and she has implicated Ray Singh in the commission of alleged criminality upon her i.e. dislodging her modesty. Applicant Ray Singh was arrested on 25.8.2021, whereas applicant Satish was arrested on 2.7.2021. During the course of investigation, Investigating Officer recovered a transfer certificate dated 9.6.2021 pertaining to the prosecutrix issued by Principal Sharfilal Laxmi Narain Inter College, Dahgawna, Budaun, wherein date of birth of the prosecutrix has been mentioned as 8.10.2004. As such, on the date of alleged incident i.e. 27.5.2021, prosecutrix was aged about 16 years 7 months and 19 days. Investigating Officer upon completion of investigation of aforementioned case crime number has ultimately submitted the charge sheet dated 8.9.2021, whereby applicants have been charge sheeted under Sections 363, 376(D) IPC and Sections 5/6 POCSO Act.

9. Mr. Ravi Shankar Tripathi, learned counsel for applicants contends that though applicants are named as well as charge sheeted accused, but they are innocent. Applicants have been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicants are being falsely prosecuted in aforementioned case crime number. It is next contended that as per the educational certificate of prosecutrix, her date of birth is 8.10.2004. Incident in question has occurred on 27.5.2021. As such, on the date of incident, prosecutrix was aged about 16 years 7 months and 19 days. On the aforesaid premise, he contends that provisions of POCSO Act shall not be applicable. It is then contended that the prosecutrix is a consenting party. Referring to the statements of the prosecutrix as recorded under Section 161 Cr. P. C. as well as before the Doctor, who medically examined her he submits that prosecutrix is a consenting party and therefore no offence under Section 376 IPC can be said to have been committed by the applicants. It is next contended that medical evidence does not support the prosecution story. The doctor, who medically examined prosecutrix did not find any signs of sexual violence on the body of prosecutrix nor any signs of penetrative sexual assault. He, therefore, contends that in the absence of medical evidence, no conviction of applicant is possible for an offence under Section 376 (D) IPC. In support of above, reliance is placed upon the judgement of the Supreme Court in Vineet Kumar Vs. State of U.P., (2017) (13) SCC, 369 According to the learned counsel for applicants prosecutrix in her statement under Section 161 Cr. P. C. has not supported the prosecution story, but she has taken a somersault in her statement under Section 164 Cr. P. C. However, the change in her statement under Section 164 Cr. P. C. has not been explained by the prosecutrix. Prosecutrix is not consistent, therefore, her statement under Section 164 Cr. P. C. is not worthy of reliance. He has then referred to the judgement of the Supreme Court in Phool Singh Vs. The State of M.P. MANU/SC/1174/2021 and on basis thereof he contends that conviction under Section 376 IPC can be maintained on the sole testimony of proscutrix provided her testimony is clear, categorical and unambiguous. However, when the statements of the prosecutrix under Sections 161/164 Cr. P. C. and before the doctor are examined as a whole, it cannot be said that her statements are of impeccable quality. It is lastly contended that applicants are men of clean antecedents, inasmuch they have no criminal history to their credit except the present one. Applicants are in jail since 25.8.2021/12.7.2021. As such, they have undergone sufficient period of incarceration. In case, applicants are enlarged on bail, they shall not misuse liberty of bail and shall co-operate with the trial. It is lastly submitted that applicants are charge sheeted accused and evidence sought to be relied by the prosecution against applicants stands crystallized. As such custodial arrest of the applicants are not absolutely necessary during the course of trial. On the aforesaid factual and legal premise, it is thus urged that applicants are liable to be enlarged on bail.

10. Per contra, the learned A.G.A. and learned counsel for first informant have opposed these applications for bail. They jointly contend that since applicants are named as well as charge sheeted accused, they are not entitled to any indulgence of this Court. They further submit that prosecutrix is a young girl aged about 16 years 7 months and 19 days. Her modesty has been dislodged by applicants. However, they could not dispute the factual and legal submissions urged by learned counsel for applicants.

11. Having heard learned counsel for applicants, learned A.G.A. for the state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, the applicants have made out a case for bail. Accordingly, bail applications are allowed.

12. Let the applicants Ray Singh and Satish, involved in aforesaid case crime number, be released on bail on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

(i) The applicants shall file an undertaking to the effect that they will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicants shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.

(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 them in accordance with law.

13. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

14. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground of cancellation of bail.