Manoj Bisht v. State of Uttarakhand

Heard Mr. Lokendra Dobhal, learned counsel for the applicant, and Mr. Vipul Panuli, learned Brief Holder for the State, and have carefully perused the material on record.

5. The learned counsel for the applicant has submitted that the accused is innocent and has been falsely implicated in this case due to past enmity and land dispute between the parties.

6. He has pointed out that the complainant, along with her married sister-in-law and mother-in-law, has fabricated the facts of the incident to humiliate the accused.

7. It has been argued that although the alleged incident is said to have occurred on 05.06.2024, the FIR was lodged after a delay of three days on 08.06.2024, which raises suspicion about the veracity of the allegations.

8. The learned counsel further contended that the alleged incident has been reported to have taken place in the bathroom of the accused's house, which is situated near a common village road where people regularly commute, making the commission of such an offence unlikely.

9. It has also been argued that during the investigation, no corroborating evidence has emerged to substantiate the allegations against the accused. 2

10. The learned counsel highlighted that the children with whom the victim was playing were not immediately informed about the incident, which further casts doubt on the prosecution's case.

11. He has emphasised that the accused has no criminal history, is a respected person in the village engaged in farming and a flour mill business, and has been in judicial custody since 09.06.2024, warranting consideration for bail.

12. Per contra, the learned counsel for the State has vehemently opposed the bail application, contending that on 05.06.2024 at around 4:00 PM, the accused committed rape on the approx 9-year-old victim by performing oral sex on her and thereafter threatened to kill her if she disclosed the incident to anyone.

13. The learned counsel for the State has submitted that the victim has consistently supported the State’s case in her statements recorded under Sections 161 and 164 of the Code of Criminal Procedure.

14. It is further submitted that the offence alleged is of a grave and serious nature, involving a child victim aged less than nine years. In view of the gravity of the allegations and the stage of the proceedings, it is urged that the bail application be rejected.

15. Upon careful consideration of the rival submissions and after perusing the material on record, this Court observes that the delay of three days in lodging the FIR does not, in the opinion of this Court, vitiate the prosecution's case.

16. The Uttarakhand High Court in State of Uttarakhand v. Hari Singh (Criminal Appeal No. 102 of 2021) has categorically held that delay in filing FIR in sexual assault cases, particularly those involving child victims, 3 is a common occurrence due to various socio-psychological factors such as trauma, fear, family honour, and threats from the accused.

17. In the present case, the victim was explicitly threatened by the accused with dire consequences if she disclosed the incident to anyone. The fact that she appeared visibly frightened for three days, as noticed by her mother, lends credence to her explanation for not immediately reporting the incident.

18. The defence's contention that the alleged incident could not have occurred in a bathroom near a common village road is not persuasive. The Uttarakhand High Court in Mohan Lal v. State of Uttarakhand (Criminal Appeal No. 239 of 2022) has observed that sexual offenders often exploit momentary opportunities to isolate victims regardless of the proximity to public spaces. The crucial factor is not the general accessibility of the location, but the temporary isolation achieved by the perpetrator.

19. In the present case, by luring the victim inside the bathroom and locking the door, the accused created a secluded environment conducive to committing the alleged offence, irrespective of the bathroom's proximity to a village road.

20. The medical examination of the victim was conducted. Though the swab samples were collected after a delay of three days from the date of the incident, this delay is understandable given the circumstances of the case, particularly the fear instilled in the young victim by the accused's threats.

21. Furthermore, it is well-established in judicial precedents that in cases of sexual offences, particularly those involving child victims, the absence of corroborative medical evidence does not vitiate the prosecution's case if the victim's testimony is found to be reliable and trustworthy. 4

22. The statements of the victim recorded under Sections 161 and 164 CrPC reveal a consistent narrative without material contradictions. In the present case, the victim, who was less than 9 years old at the time of the incident, has given a clear and consistent account of the sexual assault perpetrated upon her. Her statements evince a ring of truth and are consistent with the overall circumstances of the case.

23. The Hon’ble Supreme Court in Patan Jamal Vali v. State of Andhra Pradesh, (2021) 9 SCC 1, emphasized that courts must adopt a victim-centric approach in cases involving child sexual abuse under the POCSO Act. It held that delays in disclosure or medical inconsistencies should not be mechanically construed against the child victim, particularly where the testimony is consistent and credible. Applying this principle to the present case, this Court finds the explanation of the child victim, as well as her consistent statements under Sections 161 and 164 CrPC, to be reliable and trustworthy.

24. The POCSO Act, 2012, was enacted with the specific objective of protecting children from sexual assault, harassment, and pornography. Section 29 of the Act creates a presumption against the accused, which shifts the burden of proof. In the present case, given the consistent testimony of the child victim and the supporting circumstantial evidence, the presumption under Section 29 operates firmly against the accused.

25. The accused is charged with offences under Sections 376, 376AB, 506 IPC and Section 5(m)/6 of the POCSO Act, 2012, which relate to aggravated penetrative sexual assault on a child below twelve years of age. These offences are punishable with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, along with a fine. 5

26. The argument of the defence regarding the delay in lodging the FIR does not hold much ground in the present case. The Supreme Court, in numerous judgments, has held that delay in lodging an FIR in cases of sexual offences, particularly those involving child victims, is not unusual due to various factors such as fear, shame, family pressure, and trauma. In the present case, the victim was threatened by the accused, which explains her reluctance to disclose the incident immediately. The fact that she appeared scared for three days, as noticed by her mother, corroborates this aspect.

27. The protection of children from sexual offences is not merely a legal obligation but a collective social responsibility. When adjudicating bail applications in POCSO cases, courts must be guided by the paramount consideration of the child victim's well-being and the need to ensure a fair and unimpeded trial process. ORDER In light of foregoing discussion and after careful consideration of the facts, circumstances, and legal principles applicable to the case, this Court is of the firm opinion that the applicant has failed to make out a case for bail at this stage. The gravity of the offence, the consistent testimony of the child victim, the presumption operating against the accused under Section 29 of the POCSO Act, and the overarching imperative to ensure the unhindered progress of the trial militate against the grant of bail to the applicant. Accordingly, the bail application filed by the accused Manoj Bisht, son of late Saab Singh, is hereby rejected. (Ashish Naithani J.) Dated:02.04.2025 NR/ 6