Kadil alias Kadir v. St at e of Ut t arakhand

The first bail applicat ion was dism issed as wit hdrawn. The Special Sessions Trial No. 78 of 2021 is pending before t he learned Special Judge ( POCSO) , Haridwar. I t is st at ed t hat 12 out of 15 wit nesses have already been exam ined.

2. As per t he St at e, t he vict im , a girl aged about 14 years, used t o visit t he applicant ’s house for Urdu t uit ion. I t is alleged t hat t he applicant lured her and com m it t ed repeat ed sexual assault upon her, 1 t hreat ening her t o rem ain silent . The m at t er cam e t o light when t he vict im com plained of abdom inal pain and was found t o be pregnant . The FI R was lodged by her uncle on 24.03.2021.

3. Learned counsel for t he applicant subm it t ed t hat t he FI R lacks specific dat es and t im es, and has not been lodged by t he vict im herself. He cast doubt on t he t hat t he vict im was being t ut ored by t he applicant ’s fat her, who is allegedly illit erat e.

4. I t is cont ended t hat t he applicant was em ployed as a labourer in Tehri Garhwal during t he relevant period and visit ed his hom e only occasionally. The possibilit y of any such offence occurring wit hin a crowded j oint fam ily set up is em phat ically denied.

5. The aut hent icit y of t he docum ent s relied upon t o det erm ine t he vict im ’s age, part icularly t he school t ransfer cert ificat e, has been quest ioned, alleging overwrit ing and a lack of corroborat ing docum ent s such as a birt h cert ificat e. Learned counsel relied on t he cross- exam inat ion of t he school principal ( PW4) and t he t est im ony of t he m edical wit ness ( PW3) , who opined t hat no definit e conclusion could be drawn regarding sexual assault and no inj ury m arks were found.

6. While not disput ing t he DNA m at ch, learned counsel raised apprehensions about t he int egrit y and reliabilit y of t he t est ing process. I t is furt her subm it t ed t hat t he applicant has no crim inal ant ecedent s, is a perm anent resident , and is unlikely t o abscond or t am per wit h t he evidence. The right t o life and personal libert y under Art icle 21 of t he Const it ut ion of I ndia has 2 also been invoked.

7. Per cont ra, t he learned St at e Counsel has opposed t he applicat ion, subm it t ing t hat t he t rial is at an advanced st age, wit h 12 of 15 wit nesses already exam ined.

8. I t is subm it t ed t hat t he vict im has support ed t he prosecut ion’s case in her chief exam inat ion and t hat no m at erial cont radict ions have yet em erged. The St at e argues t hat t he applicant ’s release at t his st age m ay j eopardize t he rem aining proceedings, part icularly by influencing or int im idat ing vulnerable wit nesses, given t he nat ure of t he offence.

9. The St at e furt her relies upon t he DNA report , which confirm s t he applicant ’s pat ernit y. I t is subm it t ed t hat t he fet us, ext ract ed from t he vict im , along wit h blood sam ples of t he applicant and t he vict im , were collect ed under proper supervision and sent t o t he Forensic Science Laborat ory. The DNA m at ch form s t he scient ific backbone of t he St at e’s case.

10. Heard learned counsel for t he part ies and perused t he m at erial available on record.

11. The allegat ions against t he applicant are of a grave and serious nat ure. The age of t he vict im , for purposes of POCSO, is prim a facie under 18 years. The challenge t o t he det erm inat ion of age is an issue t o be adj udicat ed at t rial and does not prim a facie displace t he applicat ion of t he POCSO Act .

12. The DNA report linking t he applicant t o t he fet us is a key piece of forensic evidence and cannot be brushed aside at t he st age of considering bail. I n Neeru 3 Yadav v. St at e of U.P., ( 2016) 15 SCC 422, t he Hon’ble Suprem e Court em phasized t he relevance of t he accused’s conduct and t he nat ure of evidence in sexual offence cases involving m inors.

13. Furt herm ore, t he Hon’ble Suprem e Court in Arvind v. St at e of U.P., Crim inal Appeal No. 795 of 2021, reit erat ed t hat where t he DNA t est confirm s t he pat ernit y of t he foet us, it form s st rong prim a facie evidence against t he accused and is a weight y considerat ion for rej ect ing bail in sexual offence cases involving m inors. The Court held t hat scient ific evidence, such as DNA report s, when corroborat ed by t he st at em ent s of t he vict im and ot her support ing m at erial, m ust not be light ly disregarded at t he bail st age.

14. I n t he present m at t er, t he St at e’s case is support ed by subst ant ial m edical, t est im onial, and forensic m at erial. The t rial is at an advanced st age, and t he defence has had t he opport unit y t o cross- exam ine crucial wit nesses. The doubt s expressed regarding age det erm inat ion and t he DNA report are m at t ers for final adj udicat ion and do not eclipse t he prim a facie case.

15. I n view of t he t ot alit y of t he circum st ances, t he serious nat ure of t he allegat ions, t he st age of t he t rial, and t he nat ure of t he m at erial on record, t his Court does not find it t o be a fit case for t he grant of bail.

17. Accordingly, t he bail applicat ion is rej ect ed. I t is clarified t hat t he observat ions m ade in t his order are solely for t he purpose of deciding on t he 4 present bail applicat ion. Not hing st at ed herein shall be const rued as a reflect ion on t he m erit s of t he case. The learned t rial consider t he m at t er independent ly, uninfluenced by any observat ions m ade herein. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dt : 09.04.2025 SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24 b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542 D7FF0A9BED00E67B5283D205F18FE29BDF5DD 9, cn=SHIKSHA BINJOLA 5