Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants, accusation made coupled with the fact that, the Doctor who examined the prosecutrix, however, did not find any signs on her body so as to denote commission of deliberate sexual assault upon the prosecutrix, as such the medical evidence does not support the ocular version, the occurrence is alleged to have occurred on 22.2.2023, whereas, the F.I.R. was lodged on 1.4.2023 i.e. almost for a period of 40 days, as such, the F.I.R. is highly belated, however, neither in the F.I.R. nor in the statement of first informant any explanation has been offerred regarding delay in lodging the F.I.R., therefore prima facie the prosecution of applicant itself cannot be maintained, the judgement of Supreme Court in P. Rajagopal (Supra), one of the applicant i.e. Sharafat has criminal history of four cases, however, an accused cannot be denied bail only on the ground of criminal history as per the three judges Bench in Brijmani Devi Vs. Pappu Kumar and Another Vs. (2022) 4 SCC 497, as per the document occurring at page 59 of the paper book of applicant Sharafat, prima facie the innocence of applicant is established, the period of incarceration undergone, the Police Report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicants remains crystalized yet the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicants during the pendency of trial, therefore irrespective of the objection raised by the learned A.G.A. in opposition to the present application for bail but without making any comment on the merits of the case, the applicants have made out a case for bail.
