JUDGMENT : VIKAS KUNVAR SRIVASTAV, J. 1. The case is called out. Learned counsel Sri Ashutosh Kumar, Advocate for the bail-applicant and learned Additional Government Advocate for the State are present through video conferencing in virtual hearing of the case. 2. The present bail-application is moved for and on behalf of accused-applicant-Utkarsh Patel @ Utkarsh @ Uttu @ Raj Patel, aged about 18 years, involved in Case Crime No. 64 of 2021 registered under Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 at Police Station Banthra, District Lucknow. 3. Counter affidavit and rejoinder affidavit have already been exchanged between the parties of the case. The case is ripe for hearing. 4. The occasion of present bail-application arisen on rejection of bail-plea of the accused-applicant by learned Special Judge, POCSO Act/Addl. Sessions Judge, Lucknow vide order dated 12.07.2021. 5. The victim of the incident is approximately 4 years' old girl child (whose name is not being disclosed and in place of her name the word ‘victim’ shall be used hereinafter in view of Section 228-A of the Indian Penal Code). The First Information Report lodged on behalf of the victim by her mother on the same day of incident dated 25.02.2021 reveals that when the victim child was playing outside her house at about 2:30 p.m., the accused-applicant Utkarsh @ Uttu picked and taken away her to his house where he teased her sexually and threatened, if she tells the incident to anybody else, she will be killed. The victim came to her house weeping and stated the incident to her mother. The complainant-mother and father of the victim approached the police station with their daughter to lodge the First Information Report accordingly. 6. Primarily, the offence was registered under Section 354-A, 323, 506 IPC alongwith Section 11/12 of the POCSO Act. During the investigation the child was subjected to medico legal examination with regard to sexual violence two days after the incident on 27.02.2021. The help of interpreter was taken and the version of the child with regard to the incident, as told to the interpreter, was recorded, according to which on 25.02.2021 at 2:30 p.m. when she was playing outside her house, the accused Utkarsh @ Uttu seeing lonely picked and taken away her to his house where he teased her sexually and threatened to life. No injury on the person and private part of the child is reported. The age of the victim child was medically assessed on the basis of medico legal examination as well as from her school certificates bearing date of birth 13.09.2016, approximately 4 year and 6 months' on the date of incident. She told doctors during her medico legal examination that the accused tried to put his penis in the vagina of girl child. 7. The bail application is moved on behalf of the present accused-applicant under Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012. The Section 376AB IPC makes punishable the offence of rape under 12 years’ age victim whereas the offence under Section 5 of the Protection of Children from Sexual Offences Act, 2012 defines the aggravated penetrative sexual assault enumerating several acts of the like nature, one of which is, whoever commits penetrative sexual assault on a child causing grievous hurt or causing bodily harm injury or injury to the sexual organs of the child, shall be punished under Section 6 of the Act with rigorous imprisonment of term which shall not be less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the reminder of natural life of that person and shall also be liable to fine or both. 8. Learned AGA by filing counter affidavit in para 12 has stated that truth of the matter is that the offence committed by the accused is heinous in nature. During investigation, sufficient evidences of committing the offence by the accused are obtained on the basis of which he is arraigned under Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012, accordingly chargesheet has been sent to the court. Para 12 and 13 of the counter affidavit are quoted hereunder:- 9. Learned counsel for the bail-applicant, in view of the fact that First Information Report is lodged on the basis of statement of the victim, a four years’ old child who might have been tutored by her parents. He emphasized on the report of medico legal examination wherein, no injury was found on the person and private part of the victim. Learned counsel further submitted that accused-applicant has no criminal antecedent, therefore, he should be granted bail. 10. He emphasized on the report of medico legal examination wherein, no injury was found on the person and private part of the victim. Learned counsel further submitted that accused-applicant has no criminal antecedent, therefore, he should be granted bail. 10. This is established principle of law that while assessing the entitlement of an accused to be released on bail, his role in the commission of offence with which, he is arraigned and the evidences as to his presence and involvement is to be given weight. In case the presence and involvement of accused is prima facie established then gravity of offence, apprehension as to the tampering of evidences and of influencing adversely the witnesses if the accused is released on bail, are to be considered. In Prahlad Singh Bhati Vs. NCT, Delhi and another ( 2001 4 SCC 280 ), Hon'ble the Supreme Court has held some parameters for grant of bail, which are being quoted hereunder:- "8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 11. According to the parameters laid down by the Apex Court in the judgment referred herein-above, the matter is examined factually and legally. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 11. According to the parameters laid down by the Apex Court in the judgment referred herein-above, the matter is examined factually and legally. On facts, it is found that the medico legal examination was done with the assistance of interpreter, as provided in the POCSO Act as well as in the Evidence Act with regard to the child witnesses. 12. It comes out from the statement of the child victim of the incident that accused-applicant tried to put his penis in the vagina of the victim under threat to life and by beating her also. Such an act is sufficient to bring the accused in the ambit of offence of aggravated sexual assault as defined under Section 5 and made punishable under Section 6 of the POCSO Act. Moreover, the child is less than 12 years in age, therefore offence under Section 376AB is also constituted. The plea of lacking injuries on the person and private part of the victim is meaningless for the reason the victim was subjected to medico legal examination after two days of the incident on 27.02.2021. The aforesaid offence, as provisioned in the POCSO Act, is not only heinous but also sever in punishment of rigorous imprisonment for life. 13. The child repeatedly stated the incident in the same words and manner from the very inception firstly to mother thereafter before the doctors who examined her medically. The statements of the victim before the Child Welfare Committee and before the Magistrate under Section 164 Cr.P.C. have also no contradiction from the statement made by her at the very inception. The certified copies of the statements are annexed by the learned AGA with counter affidavit. Before Magistrate under Section 164 Cr.P.C., the child stated that presently she does not go to school. She was playing outside her house when Puttu, the accused, taken away her to his house. He shown his penis to her and put that in the way of her urinal. He tried to allure her by giving an edible salty then beaten to force her and threatened to life if the incident is told to anyone else. She was playing outside her house when Puttu, the accused, taken away her to his house. He shown his penis to her and put that in the way of her urinal. He tried to allure her by giving an edible salty then beaten to force her and threatened to life if the incident is told to anyone else. Before CWC victim child stated the same thing by saying that the accused put down the underwear wore by her and penetrated his penis in her vagina. When she began to cry, he beaten her and threatened to life if she tells it to her parents. 14. On the basis of consistent statements as to the commission of offence and it’s manner, the prosecution has sufficiently shown and established the prima facie case under the aforesaid Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012. 15. It is no where explained in the affidavit supporting the bail application and rejoinder affidavit that why the statement of the child victim of tender age should be treated a false implication. In the absence of any such explanation the implication of offence over the applicant should be treated as true. 16. In the light of facts and circumstances discussed herein-above, it would be relevant to refer Section of 29 of the POCSO Act with regard to presumption as to certain offences which is quoted hereunder:- "Presumption as to certain offences:-Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” 17. The aforesaid presumption, as provisioned under Section 29 of the POCSO Act, is quite applicable in the present case as the prosecution has successfully established the primary facts constitute the offence. In this regard, the decision of a Division Bench of Calcutta High Court in a similar set of facts in the case law as propounded in Subrata Biswas Vs. The aforesaid presumption, as provisioned under Section 29 of the POCSO Act, is quite applicable in the present case as the prosecution has successfully established the primary facts constitute the offence. In this regard, the decision of a Division Bench of Calcutta High Court in a similar set of facts in the case law as propounded in Subrata Biswas Vs. State, reported in 2019 Criminal Law General 4327, para 22 is quoted hereunder:- "The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove the contrary. The word "is prosecuted" in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence. If that were so then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours thereof by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision constitutionally suspect. A proper interpretation of the said provision is that in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities) the onus shifts upon the accused to prove the contrary. Judging the evidence in the present case from that perspective, I am constrained to hold that the version of the victim (PW-1) and her mother (PW-2) with regard to twin incidents of 24th March, 2016 and 18th April, 2016 if taken as whole, do not inspire confidence and runs contrary to normal human conduct in the backdrop of the broad probabilities of the present case." 18. The want of criminal antecedent on the part of the accused is not of probative value in support of his plea of innocence as against the nature of accusation imputed on him by an innocent girl child of 4 years. The gravity of offence and severity of punishment also do not warrant the release on bail looking into the fact that accused-applicant resides in the neighbourhood of the child victim may under the fear of severe punishment in case the trial succeeds against him. Prima facie, there is no facts on record rebutting the presumption against the accused. 19. In view of the discussions made herein-above, without making any comment as to the merit of the case, keeping into mind the gravity of offence and severity of offence as well as the prima case of the prosecution is established against the accused-applicant, I find no force in the submission of learned counsel for the bail applicant for grant of bail. The bail application of accused-applicant-Utkarsh Patel @ Utkarsh @ Uttu @ Raj Patel, involved in Case Crime No. 64 of 2021, under Sections 376AB, 323, 506 IPC and Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 registered at Police Station Banthra, District Lucknow, is hereby rejected. 20. Learned trial court, keeping in view the future of the child, is directed to conclude the trial as practically as possible expeditiously. The trial court is further directed to not to be sweared with the observations made herein-above while deciding the case on merit on the basis of evidences duly examined and proved before it.