Kalim v. St at e of Ut t arakhand

t he first t im e in t he 164 st at em ent s, which not only cont radict s her prior version but also raises concerns regarding it s volunt ariness.

7. I t is also urged t hat t he Vict im ’s deposit ion before t he t rial court ( PW3) again shows furt her im provisat ion, om it t ing t he exist ence of a rom ant ic relat ionship wit h t he applicant , despit e it being 2 m ent ioned in her earlier st at em ent under Sect ion 161 CrPC. These inconsist encies, t he applicant cont ends, creat e a serious dent in t he credibilit y of t he St at e’s case and at t ract caut ion at t he st age of bail.

8. I t is em phasized t hat t he co- accused Arbaz, who is alleged t o have played an ident ical role, was not arrest ed and was only served a not ice under Sect ion 41-A CrPC. This, according t o t he applicant , dem onst rat es discrim inat ory t reat m ent and calls for parit y in grant of bail.

9. The applicant has no crim inal ant ecedent s, is j udicial cust ody since 07.01.2024, and has cooperat ed t hroughout t he invest igat ion. I t is also subm it t ed t hat five prosecut ion wit nesses have already been exam ined, including t he Vict im , and t here is no allegat ion of wit ness int im idat ion or t am pering on part of t he applicant .

10. Learned St at e Counsel has opposed t he bail applicat ion, subm it t ing t hat t he allegat ions m ade in t he FI R and reit erat ed by t he vict im in her Sect ion 164 CrPC st at em ent and in court t est im ony are grave and pert ain t o t he com m ission of rape on a m inor child.

11. I t is cont ended t hat t he st at em ent under Sect ion 164 CrPC is recorded before a Magist rat e and carries significant evident iary value, having been m ade volunt arily and in a legally safeguarded environm ent . The Vict im , in her deposit ion before t he t rial court as PW3, has support ed t he allegat ions and clearly nam ed t he applicant as one of t he perpet rat ors.

12. The St at e relies upon t he m edical report , 3 st at em ent s of t he Principal of t he school ( t o est ablish t he age of t he vict im ) , and t he t est im ony of independent wit nesses recorded under Sect ion 161 CrPC. I t is argued t hat t hese m at erials cum ulat ively corroborat e t he vict im 's version and sust ain t he charge under Sect ion 376( 3) I PC read wit h Sect ion 3( a) / 4 of t he POCSO Act .

13. The St at e cont ends t hat t he seriousness of t he offence, t he vulnerabilit y of t he vict im , and t he st age of t rial weigh heavily against grant of bail. I t is apprehended t hat release of t he applicant m ay affect t he psychological wellbeing of t he m inor vict im and set a det rim ent al precedent in cases involving m inors.

14. Heard t he learned counsel for t he part ies and perused t he records.

15. I t is not in disput e t hat t he Vict im is a m inor, and hence, her consent , even if assum ed, would be legally inconsequent ial. Nonet heless, t he credibilit y of her account and consist ency of her st at em ent s rem ain im port ant t ouchst ones at t his st age.

16. The Vict im , in her st at em ent under Sect ion 161 CrPC, unequivocally st at ed t hat she was in a rom ant ic relat ionship wit h t he applicant , denied any sexual act ivit y, and also expressed t hat she had not seen any alleged video. This st at em ent , being closest in proxim it y t o t he dat e of t he incident , is significant .

17. The subsequent st at em ent under Sect ion 164 CrPC int roduces serious allegat ions of sexual assault by t he applicant . The change in narrat ive raises quest ions of volunt ariness and ext ernal influence. The t rend of 4 progressive em bellishm ent cont inues in her deposit ion before t he t rial court , wherein she not only at t ribut es guilt t o t he applicant but also om it s m ent ion of t he rom ant ic relat ionship t hat was acknowledged earlier. These inconsist encies, at t he very least , int roduce reasonable doubt which m ust be considered at t he pre- t rial st age.

18. The m edical report of t he Vict im indicat es t hat her hym en was found t o be int act , which prim a facie suggest s t hat no penet rat ive sexual assault t ook place. This m edical evidence cannot be ignored at t his st age and cast s furt her doubt on t he allegat ions of rape.

19. The co- accused Arbaz, wit h sim ilar alleged involvem ent , was not arrest ed and was inst ead served wit h a not ice under Sect ion 41-A CrPC. The St at e has offered no cogent explanat ion t his different ial t reat m ent . This Court finds m erit in t he applicant ’s plea for parit y, especially when his cust odial presence has not advanced t he t rial m at erially.

20. The applicant has rem ained in cust ody for over t hree m ont hs; five wit nesses including t he Vict im have already been exam ined. There is no allegat ion of him m isusing his libert y t o influence t he course of t he t rial. The t rial is likely t o t ake considerable t im e, and cont inued incarcerat ion at t his st age m ay am ount t o pre- t rial punishm ent .

21. The Hon’ble Suprem e Court in Mahipal v. Raj esh Kum ar, ( 2020) 2 SCC 118, held t hat while t he seriousness of t he offence is an im port ant fact or, it cannot out weigh t he fundam ent al right t o personal 5 libert y where t he m at erial on record does not prim a facie support t he charge. Sim ilarly, in Prasant a Kum ar Sarkar, t he Court em phasised t hat bail decisions m ust balance t he presum pt ion of innocence wit h t he int erest s of j ust ice

22. Let t he applicant , Kalim s/ o Aslam , R/ o Village Raheem pur, Police St at ion Kot wali, Gangnahar, Roorkee. Dist rict - Haridwar be released on bail on furnishing a personal bond wit h t wo suret ies of t he like am ount t o t he sat isfact ion of t he court concerned.

23. The applicant shall appear before t he t rial court on each dat e fixed, shall not t am per wit h evidence or influence wit nesses, and shall not com m it any offence while on bail. I n case of breach of any of t hese condit ions, t he St at e shall be at libert y t o apply for cancellat ion of bail.

24. Accordingly, t he bail applicat ion is allowed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 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=FD80A2D028949381C52796A542D 7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA 6