Ganga Singh Bora alias Kannu v. St at e of Ut t arakhand

inconsist encies she first claim ed t o be in Lucknow, t hen Ram pur, and lat er Bazpur all wit hout any m edical corroborat ion or independent wit ness support .

6. The applicant furt her subm it s t hat he is a 19- year- old boy wit h no previous crim inal hist ory and has already spent over seven m ont hs in cust ody. I t is argued t hat t he FI R discloses no act t hat would at t ract t he rigours of Sect ion 5/ 6 of t he POCSO Act , part icularly when t here is no conclusive m edical or forensic evidence of sexual assault and t he vict im 's st at em ent s are fluct uat ing. I t is also subm it t ed t hat consent , t hough im m at erial in law due t o m inorit y, assum es evident iary value in assessing volunt ariness and absence of force or coercion. The applicant undert akes t o abide by any condit ions t hat m ay be im posed by t his Court . 2

7. Per cont ra, learned St at e Counsel opposes t he bail and subm it s t hat t he m inor was found in t he com pany of t he applicant , and st at em ent s recorded during invest igat ion m ake out a case under Sect ions 5/ 6 POCSO Act . The school cert ificat e confirm s her m inorit y, and hence, even volunt ary associat ion cannot excuse t he applicant ’s conduct in law. I t is em phasized t hat t he POCSO Act m akes no except ion for cases t he m inor purport edly consent s t o t he relat ionship consent of a m inor is legally irrelevant and cannot be a defence t o such serious offences. The St at e furt her cont ends t hat t he girl’s st at em ent under Sect ion 183 BNSS clearly at t ribut es culpabilit y t o t he applicant and est ablishes prim a facie sexual cont act wit h a child below 18 years of age.

8. Heard t he learned counsels and perused t he m at erial on record.

9. The present case requires careful balancing bet ween t he st rict st at ut ory prot ect ions available t o m inors under t he POCSO Act and t he fact ual uncert aint ies st em m ing from inconsist ent st at em ent s and lack of m edical corroborat ion.

10. The init ial st at em ent of t he vict im under Sect ion 180 BNSS ex facie shows t hat she left hom e volunt arily and was living as a m arried part ner wit h t he applicant . She dissuaded her parent s from searching for her and expressed her unwillingness t o ret urn. Her subsequent shift under Sect ion 183 BNSS claim ing t he applicant t ook her t o Bazpurlacks det ail and support ing evidence. Her t hree different locat ions ( Lucknow, Ram pur, Bazpur) reflect int ernal cont radict ions in t he 3 St at e’s case.

11. I t is also relevant t hat no m edical exam inat ion was conduct ed — not because of delay or lack of effort on part of t he police, but because t he vict im refused it . While refusal does not dim inish t he allegat ions per se, it curt ails t he scope for obj ect ive m edical verificat ion, especially t he absence of inj uries or eyewit nesses.

12. The Hon’ble Suprem e Court in M a h e sh w a r Ti g g a v . St a t e o f Jh a r k h a n d , ( 2 0 2 0 ) 1 0 SCC 1 0 8 , em phasized t hat m ere relat ionship or physical proxim it y, wit hout evidence of force, t hreat , or inducem ent , does not sat isfy t he requirem ent of aggravat ed penet rat ive assault under Sect ion 6 of t he POCSO Act . I n Ra v i n d r a v . St a t e o f M .P., ( 2 0 1 5 ) 4 SCC 4 9 1 , t he Court furt her held t hat im provem ent or inconsist ency in vict im st at em ent s underm ines t he weight of such t est im ony at t he st age of bail.

13. I t is not disput ed t hat t he applicant has no previous crim inal record and has rem ained in cust ody since 28.08.2024. The charge sheet has been filed and t he t rial is yet t o com m ence. There is no allegat ion t hat t he applicant at t em pt ed t o t am per wit h evidence or abscond. There is no allegat ion t hat t he applicant at t em pt ed t o t am per wit h evidence or abscond.

14. I t is also not ewort hy t hat t he applicant him self is barely 19 years of age, a young adult j ust at t he t hreshold of m aj orit y and t he alleged act s arise out of a relat ionship cont ext rat her t han coercion or force. Court s oft en em phasized t hat yout hful indiscret ion, part icularly in m at t ers involving 4 consensual relat ionships bet ween adolescent s, m ust be considered wit h sensit ivit y, especially when t he accused is of a t ender age and not a hardened crim inal. The quest ion of whet her t he conduct of t he applicant at t ract s t he rigors of POCSO offences or m it igat ed by t he circum st ances narrat ed by t he vict im herself, will be adj udicat ed during t rial. ORD ER Let t he applicant , Ganga Singh Bora, be released on his 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. The applicant shall not t am per wit h t he evidence, shall not at t em pt t o influence any wit ness, and shall appear before t he t rial court on each dat e fixed. I n case of breach of any of t hese condit ions, t he St at e shall be at libert y t o m ove for cancellat ion of bail. The bail applicat ion is allowed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dt : 17.04.2025 SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5 aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7F F0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA 5

inconsist encies she first claim ed t o be in Lucknow, t hen Ram pur, and lat er Bazpur all wit hout any m edical corroborat ion or independent wit ness support .

6. The applicant furt her subm it s t hat he is a 19- year- old boy wit h no previous crim inal hist ory and has already spent over seven m ont hs in cust ody. I t is argued t hat t he FI R discloses no act t hat would at t ract t he rigours of Sect ion 5/ 6 of t he POCSO Act , part icularly when t here is no conclusive m edical or forensic evidence of sexual assault and t he vict im 's st at em ent s are fluct uat ing. I t is also subm it t ed t hat consent , t hough im m at erial in law due t o m inorit y, assum es evident iary value in assessing volunt ariness and absence of force or coercion. The applicant undert akes t o abide by any condit ions t hat m ay be im posed by t his Court . 2

7. Per cont ra, learned St at e Counsel opposes t he bail and subm it s t hat t he m inor was found in t he com pany of t he applicant , and st at em ent s recorded during invest igat ion m ake out a case under Sect ions 5/ 6 POCSO Act . The school cert ificat e confirm s her m inorit y, and hence, even volunt ary associat ion cannot excuse t he applicant ’s conduct in law. I t is em phasized t hat t he POCSO Act m akes no except ion for cases t he m inor purport edly consent s t o t he relat ionship consent of a m inor is legally irrelevant and cannot be a defence t o such serious offences. The St at e furt her cont ends t hat t he girl’s st at em ent under Sect ion 183 BNSS clearly at t ribut es culpabilit y t o t he applicant and est ablishes prim a facie sexual cont act wit h a child below 18 years of age.

8. Heard t he learned counsels and perused t he m at erial on record.

9. The present case requires careful balancing bet ween t he st rict st at ut ory prot ect ions available t o m inors under t he POCSO Act and t he fact ual uncert aint ies st em m ing from inconsist ent st at em ent s and lack of m edical corroborat ion.

10. The init ial st at em ent of t he vict im under Sect ion 180 BNSS ex facie shows t hat she left hom e volunt arily and was living as a m arried part ner wit h t he applicant . She dissuaded her parent s from searching for her and expressed her unwillingness t o ret urn. Her subsequent shift under Sect ion 183 BNSS claim ing t he applicant t ook her t o Bazpurlacks det ail and support ing evidence. Her t hree different locat ions ( Lucknow, Ram pur, Bazpur) reflect int ernal cont radict ions in t he 3 St at e’s case.

11. I t is also relevant t hat no m edical exam inat ion was conduct ed — not because of delay or lack of effort on part of t he police, but because t he vict im refused it . While refusal does not dim inish t he allegat ions per se, it curt ails t he scope for obj ect ive m edical verificat ion, especially t he absence of inj uries or eyewit nesses.

12. The Hon’ble Suprem e Court in M a h e sh w a r Ti g g a v . St a t e o f Jh a r k h a n d , ( 2 0 2 0 ) 1 0 SCC 1 0 8 , em phasized t hat m ere relat ionship or physical proxim it y, wit hout evidence of force, t hreat , or inducem ent , does not sat isfy t he requirem ent of aggravat ed penet rat ive assault under Sect ion 6 of t he POCSO Act . I n Ra v i n d r a v . St a t e o f M .P., ( 2 0 1 5 ) 4 SCC 4 9 1 , t he Court furt her held t hat im provem ent or inconsist ency in vict im st at em ent s underm ines t he weight of such t est im ony at t he st age of bail.

13. I t is not disput ed t hat t he applicant has no previous crim inal record and has rem ained in cust ody since 28.08.2024. The charge sheet has been filed and t he t rial is yet t o com m ence. There is no allegat ion t hat t he applicant at t em pt ed t o t am per wit h evidence or abscond. There is no allegat ion t hat t he applicant at t em pt ed t o t am per wit h evidence or abscond.

14. I t is also not ewort hy t hat t he applicant him self is barely 19 years of age, a young adult j ust at t he t hreshold of m aj orit y and t he alleged act s arise out of a relat ionship cont ext rat her t han coercion or force. Court s oft en em phasized t hat yout hful indiscret ion, part icularly in m at t ers involving 4 consensual relat ionships bet ween adolescent s, m ust be considered wit h sensit ivit y, especially when t he accused is of a t ender age and not a hardened crim inal. The quest ion of whet her t he conduct of t he applicant at t ract s t he rigors of POCSO offences or m it igat ed by t he circum st ances narrat ed by t he vict im herself, will be adj udicat ed during t rial. ORD ER Let t he applicant , Ganga Singh Bora, be released on his 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. The applicant shall not t am per wit h t he evidence, shall not at t em pt t o influence any wit ness, and shall appear before t he t rial court on each dat e fixed. I n case of breach of any of t hese condit ions, t he St at e shall be at libert y t o m ove for cancellat ion of bail. The bail applicat ion is allowed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dt : 17.04.2025 SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5 aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7F F0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA 5