Allahabad High Court
DINESH KUMARversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- KRISHAN PAHAL
Holding
The court held that, prima facie, the applicant is entitled to bail.
Summary
The High Court considered a bail application filed by Dinesh Kumar, who was charged under Sections 87, 137(2), 65(1) of the Indian Penal Code, and Sections 3 and 4 of the POCSO Act for an alleged sexual offence. The victim, aged 17‑18 as per an ossification test, claimed consent in a statement recorded under Section 183 of the B.N.S.S. The defence argued that the victim appeared to be an adult and that the age‑determination test has a margin of error of one to two years, citing Supreme Court precedents. The State opposed bail but could not refute the defence’s submissions. The Court, noting the lack of criminal history, the consent claim, and the uncertainty about the victim’s exact age, held that the applicant made out a prima facie case for bail. Accordingly, bail was granted subject to a personal bond, sureties, and standard conditions.
Issues considered
- Whether bail can be granted when the alleged victim is a minor whose exact age is uncertain due to the margin of error in ossification testing
- Whether a consent statement under Section 183 B.N.S.S. negates the applicability of POCSO offences
- Whether the applicant's lack of prior criminal record and willingness to cooperate justify bail despite serious charges
Legislation cited
- B.N.S.S. — s. 183
- Indian Penal Code — s. 137(2), 65(1), 87
- Protection of Children from Sexual Offences Act — s. 3, 4
Subjects
- bail
- POCSO
- consent
- age of victim
- ossification test
- criminal procedure
- minor
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 32206 of 2025
Dinesh Kumar
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Ravi Pandey, S.S. Rajput
Counsel for Opposite Party(s) : G.A.
Court No. - 65
(Sr. No.62 out of 262)
HON'BLE KRISHAN PAHAL, J.
1. List has been revised. Learned A.G.A. has informed that the notice to the
informant has been served on 8.3.2026.
2. In compliance of order of this Court, the ossification test report has been
received from the office of C.M.O., Aligarh, which reveals the medical age
of the victim to be 17-18 years.
3. Heard learned counsel for the applicant, Sri Jai Kishan Chaurasia, learned
State Law Officer for the State and perused the material placed on record.
4. Applicant seeks bail in Case Crime No.199 of 2025, under Sections 87,
137(2), 65(1) BNS and 3/4 POCSO Act, Police Station Gabhana, District
Aligarh, during the pendency of trial.
5. Learned counsel for the applicant has argued that the applicant is
absolutely innocent and has been falsely implicated in the present case. The
victim is a consenting party as is but evident from her statement recorded
under Section 183 B.N.S.S., whereby she had traveled with the applicant to
several places including Delhi and thereupon to Jammu.
6. It is further argued by learned counsel for the applicant that the victim, by
her looks, seems to be major, although she is stated to be 17-18 years old as
per the ossification test report. As such, a leverage of two years may be
granted to the applicant on the upper side. The applicant has no criminal
history and is in jail since 24.6.2025. He undertakes to cooperate with the
BAIL No. 32206 of 2025
2
trial and not misuse the liberty of bail.
7. Learned State Law Officer has vehemently opposed the bail application
but could not dispute the submissions made by the counsel for the applicant.
8. The Supreme Court 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 has 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.
9. Considering the facts and circumstances of the case, submissions made by
learned counsel for the parties, the evidence on record, taking into
consideration the statement of the victim recorded under Section 183
B.N.S.S., which indicates her consent, and without expressing any opinion
on the merits of the case, prima-facie the Court is of the view that the
applicant has made out a case for bail. The bail application is allowed.
10. Let the applicant- Dinesh Kumar, be released on bail on furnishing a
personal bond and two sureties to the satisfaction of the court concerned,
subject to verification of sureties, with the conditions that he shall not
tamper with evidence or intimidate witnesses and shall appear before the
trial court as required.
11. Breach of any condition shall entail cancellation of bail. The
observations herein shall not affect the trial on merits.
12. The original ossification test report shall be returned to the office of
CMO concerned, after retaining photostat copy of the same on record.
(Krishan Pahal,J.)
April 2, 2026
Vikas Verma
Digitally signed by :-
VIKAS VERMA
High Court of Judicature at Allahabad
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