Ajay Bhanot, J.

1. By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No.173 of 2021 (Session Case No. 549/ 2021) at Police Station Ujhani District Budaun under Sections 363, 366A, 376 Gha IPC and Section 5 Chha/6 POCSO Act. The applicant is in jail since 17.06.2021.

2. The bail application of the applicant was rejected by learned Additional Sessions Judge/ Special Judge (POCSO Act), Budaun on 07.06.2022.

3. Shri Sanjive Kumar Gupta, learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. The age of the victim was incorrectly recorded as 13 years in the F.I.R. only to implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment. As per the medical report drawn up to determine the age of the victim opines that she is about 15 years of age.

4. Learned counsel for the applicant submits that the victim is in fact a major, and made two submissions 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 medical report is flawed. The latest medical protocol and relevant scientific criteria which would establish the majority of the victim were excluded from consideration in the medical report.

5. Learned counsel for the applicant then contends that the applicant and the victim were intimate. The FIR is the result of opposition by the family of the victim to the aforesaid consensual relationship. The victim in her statement under Section 161 Cr.P.C had admitted to intimacy with the applicant. She has further asserted that she accompanied the applicant to Jaipur of her own volition and the two got married voluntarily at Rudrapur. They started residing together as a married couple. False and aggravated allegations were subsequently made by the victim in her statement under Section 164 Cr.P.C at the behest of her parents only to deflect attention from her own conduct and to save the failing prosecution case. Material contradictions in the FIR, statements of the victim under Section 161 Cr.P.C and under Section 164 Cr.P.C discredit the prosecution case. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution. Learned counsel for the applicant contends that the applicant does not have any criminal history apart from this case.

6. Learned A.G.A for the State could not satisfactorily dispute the aforesaid submissions.

7. I see merit in the submissions of learned counsel for the applicant and accordingly hold that the applicant is entitled to be enlarged on bail.

8. In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

9. Let the applicant-Shivam Yadav be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not influence any witness.

(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

10. In case any averment in the bail application or submission made during the argument is false or in case of breach of any of the above condition the State may move an application for cancellation of bail application.