UDHAM SINGH NAGAR v. State of Uttarakhand

Ms. Rangoli Purohit, Learned Brief Holder for the State of Uttarakhand. Hon’ble Ashish Naithani, J. The present bail application under Section 439 of the Code of Criminal Procedure has been filed by the applicant, Sunil Sindhi, seeking bail in connection with FIR No. 378 of 2023 registered under Sections 376, 323 of the Indian Penal Code (IPC) and Section 5(n)/6 of the Protection of Children from Sexual Offences (POCSO) Act, at Police Station Rudrapur, District Udham Singh Nagar. The applicant has been in judicial custody since

01.07.2023.

2. The prosecution case, as delineated in the FIR dated 30.06.2023, alleges that the applicant, who is the real brother of the victim, a minor girl aged 13 years, committed rape upon her on multiple occasions. The FIR was lodged by the informant, who is also a relative of the victim, alleging that the applicant brought the victim to his rented accommodation on 21.06.2023 and committed rape upon her near Vibhara Farm Bridge, Bilaspur. It is further alleged that the applicant threatened the victim with dire consequences if she disclosed the incident to anyone. The next day, the applicant allegedly took the victim to a nearby forest and committed rape upon her thrice. The victim disclosed the incident to the informant on 29.06.2023, following which the FIR was registered. 1

3. The investigation culminated in the filing of a charge-sheet under Sections 323, 376, and 506 of the IPC and Section 5(n)/6 of the POCSO Act on 26.08.2023. The applicant’s earlier bail application was rejected by the Learned FTC/Additional Sessions Judge (POCSO), Rudrapur, vide order dated 12.01.2024, primarily on the grounds of the gravity of the offence, the minor age of the victim, and the medical evidence corroborating the allegations.

4. Heard learned counsel for the Applicant and for the State. Perused the records.

5. The learned counsel for the applicant vehemently argued that the applicant is innocent and has been falsely implicated due to a matrimonial dispute. It was contended that the applicant had solemnized a love marriage with the sister of the informant, which led to animosity between the families. The counsel highlighted alleged contradictions in the statements of the victim and other witnesses, particularly the delay in lodging the FIR, which was registered nine days after the alleged incident.

6. The counsel further argued that the victim’s statements under Sections 161 and 164 of the CrPC were influenced by the applicant’s wife and were not voluntary. It was also pointed out that the medico-legal report (MLR) showed inconsistencies, such as the victim writing her name in Hindi in the MLR but in English in the site plan, casting doubt on the authenticity of the documents. Additionally, the counsel emphasized that the applicant is the sole breadwinner of his family and has been in custody for a significant period, warranting his release on bail.

7. The learned State counsel opposed the bail application, asserting that the allegations against the applicant are grave and supported by cogent evidence. It was submitted that the victim, a minor, has consistently supported the prosecution’s case in her statements under Sections 161 and 164 of the CrPC. The State also relied on the MLR, which confirmed that the victim’s hymen was torn, corroborating the allegation of sexual assault.

8. The State further argued that the applicant, being the real brother of the victim, occupied a position of trust, and the breach of such trust 2 aggravated the seriousness of the offence. It was also submitted that the trial has commenced, and releasing the applicant at this stage could lead to witness tampering or intimidation, given his close relationship with the victim.

9. This Court has meticulously perused the material on record, including the FIR, charge-sheet, statements of the victim and witnesses under Sections 161 and 164 of the CrPC, the MLR, and the order of the lower court rejecting the bail application.

10. The allegations against the applicant are extremely serious, involving the rape of a minor girl who is his real sister. The offence under Section 376 of the IPC and Section 5(n)/6 of the POCSO Act is heinous and carries severe penalties. The courts have consistently held that in cases involving sexual offences against minors, the gravity of the offence and the need to protect the victim’s interests are paramount considerations in bail matters.

11. Further,the victim’s statements under Sections 161 and 164 of the CrPC are consistent and unequivocal in alleging that the applicant committed rape upon her. The MLR corroborates her allegations, as it notes the tearing of her hymen, which is a significant piece of evidence in cases of sexual assault. The minor discrepancies highlighted by the applicant, such as the language used in the MLR and site plan, are inconsequential and do not undermine the credibility of the prosecution’s case.

12. While the applicant has raised the issue of delay in lodging the FIR, the prosecution has explained that the victim was under threat and only disclosed the incident after mustering courage. The delay, in this context, is not fatal to the prosecution’s case, as it has been satisfactorily explained.

13. The applicant, being the victim’s real brother, was in a position of trust and authority. The breach of such trust aggravates the offence and underscores the need for stringent measures to ensure the victim’s safety and the integrity of the trial. 3

14. Given the familial relationship between the applicant and the victim, there is a legitimate apprehension that the applicant, if released on bail, may influence or intimidate the victim or other witnesses. This risk is particularly acute in cases involving sexual offences within families.

15. While the applicant has been in custody since 01.07.2023, this factor alone cannot outweigh the gravity of the offence and the need to ensure a fair trial. The trial has already commenced, and the applicant’s continued custody is necessary to prevent any interference with the judicial process.

16. After a comprehensive evaluation of the facts, evidence, and legal principles, this Court is of the firm view that the applicant has not made out a case for grant of bail. The allegations against him are grave and supported by substantial evidence. The victim’s age, the relationship of trust, and the need to safeguard the trial process militate against the grant of bail.

17. Accordingly, the bail application is rejected. (ASHISH NAITHANI, J.) Dated:01.04.2025 NR/ 4