State of Uttarakhand v. Mr. Kurban Ali, learned counsel for the

has been accused in FIR No.0004 of 2023 under Sections 363, 366A, 376D of IPC and Sections 5(g)/6 of the POCSO Act at Thana Tyuni, District Dehradun. The applicant has been in judicial custody since 6 August 2023 and his bail was previously rejected by the Special Judge (POCSO), Dehradun.

2. The factual backdrop indicates that the victim, a minor girl aged about 14 years, alleged in the FIR that on 2 August 2023, she was taken by the applicant and co-accused from Tyuni to various locations including a forest area and subsequently kept for multiple days in a room where she was allegedly subjected to repeated sexual assault. She mentioned both accused by name in the FIR. Her statement under Section 164 CrPC reiterates the version stated in the FIR, asserting non-consensual acts and coercion. Medical examination recorded hymenal rupture and a minor physical injury, but did not conclusively opine on sexual assault; however, forensic samples were taken and were under process. 1

3. On behalf of the applicant, it is argued that there are significant contradictions between the FIR, medical report, and statements of the victim before the Magistrate and during trial. The affidavit also highlights that the victim allegedly had a history of making previous complaints of sexual assault, casting doubt on her credibility. Additionally, it is asserted that the identification of the applicant is flawed as no proper test identification parade was conducted, and the victim claimed not to know the applicant prior to the incident. Further, several prosecution witnesses, including the victim's relatives and owner of the alleged location of offence, reportedly did not support the prosecution version during cross-examination.

4. Learned counsel for the applicant has contended that the case against the applicant is a result of false implication, pointing to material discrepancies in the evidence and procedure. It is argued that the prosecutrix was admittedly unknown to the applicant prior to the incident, and yet his name appears in the FIR without any identification exercise, including the absence of a test identification parade. The defense places heavy reliance on the prosecutrix’s deposition before the trial court where she stated that she escaped from the room to use the bathroom and was found by police shortly thereafter, which contradicts the initial version of continuous detention for four days. The defense also submits that key prosecution witnesses— including the owner of the room where the offence allegedly took place— have not corroborated the victim’s allegations. Furthermore, it has been brought on record that the prosecutrix has previously made allegations of sexual assault in unrelated instances, raising questions about the reliability of her testimony.

5. The medical evidence, too, according to the applicant’s counsel, fails to support the prosecution case. The medical report confirms the hymenal rupture but does not state whether the injury is recent or caused by force. There is no mention of bruises, abrasions, or physical injuries that would normally accompany prolonged physical assault. The report also notes that the victim had bathed and changed her clothes multiple times, likely 2 compromising the evidentiary value of any forensic samples. Several prosecution witnesses, including the schoolteacher, room owner, and other local witnesses examined during trial, have either contradicted prosecution narrative or failed to support it, further weakening the case at this stage.

6. It is also submitted that the applicant has no criminal antecedents and has been in custody since 6 August 2023. The trial has already seen examination of multiple witnesses, and is no suggestion or apprehension that the applicant would flee or tamper with evidence. It is emphasized that the applicant has cooperated throughout the proceedings and is ready to furnish adequate sureties as may be directed by this Court. Opposing the application, the State maintains that the allegations are grave and concern the sexual assault of a minor child, which must be approached with caution and sensitivity. The State contends that the statements made by the victim under Section 164 CrPC are consistent and sufficiently implicate the applicant. It is urged that minor inconsistencies are not sufficient to undermine the gravity of the charges at the bail stage and that the interest of the victim and the nature of the allegations require continued detention of the applicant.

7. Having heard both sides and upon a close and careful perusal of the case file, this Court finds that there are indeed several aspects of the prosecution case that create reasonable doubt at this stage. The absence of a test identification parade, especially when the victim was unfamiliar with the accused, is a procedural lapse that cannot be overlooked. The medical findings, though indicative of sexual activity, do not confirm recent or forceful intercourse, and the only external injury recorded is minor. The victim’s own testimony before the trial court contains significant departures from her original version, particularly concerning her ability to leave the premises freely and the absence of restraint or coercion in the period she describes as confinement. Additionally, the prosecution has failed to produce 3 corroborative evidence linking the applicant to the scene of the offence, and several independent witnesses have not supported the version of the prosecution.

8. The Court has taken note of the statement of Prosecution Witness No. 2, who categorically stated that the victim had a tendency to leave her home without informing any family member and would return on her own. This behavioral pattern raises questions regarding the narrative of forcible abduction.

9. Further, the medical report does not indicate any external injuries apart from a single mark of abrasion on the leg. While the hymen was found ruptured, there is no conclusive medical opinion confirming recent sexual assault or forceful intercourse.

10. Additionally, the Court observes material contradictions in the statements of the prosecution witnesses, particularly with respect to the identification of locations and individuals. The PW – 08 Sundari Devi in her statement, at one point, claimed that Manish Chauhan was the owner of a hotelsnearby the place where the girl allegedly met her and said there were rooms for travelers where the incident alleged to have happened; however, in her other statement, she contradicted herself by asserting that there were no such rooms available in his hotel. Moreover, her inability to identify the accused clearly adds to the uncertainty regarding the involvement of the applicant and changes the whole version of her statements.

11. Given these discrepancies, the absence of consistent medical corroboration, and the applicant’s continued incarceration for over eight months, the Court is of the view that a case for bail is made out at this stage.

12. The applicant has remained in custody for over eight months. The investigation is complete, and the prosecution has already examined a substantial portion of its witnesses. There is no material before this Court to suggest that the applicant, if released, would evade trial or influence witnesses. In view of the inconsistencies in the prosecution’s case, the 4 evidentiary gaps, and the procedural irregularities, this Court is of the opinion that continued detention of the applicant would not serve the ends of justice.

13. Accordingly, this Court finds it just and appropriate to allow the present bail application. It is directed that the applicant, Dikshu S/o Sardar Singh Rawat, be released on bail in connection with FIR No.0004 of 2023, under Sections 363, 366A, 376D of the Indian Penal Code and Sections 5(g)/6 of the POCSO Act, registered at Police Station Tyuni, District Dehradun, to the satisfaction of the court concerned. The applicant shall cooperate with the trial proceedings and shall not misuse the liberty granted to him.

14. Accordingly, the bail application is allowed. Dated:16.04.2025 NR/ (Ashish Naithani, J.) 5