AT NAINITAL v. State of Uttarakhand

2. As per the First Information Report lodged on 21.06.2024, it is alleged that the applicant telephoned the minor daughter of the informant and called her on the pretext of introducing her to his mother. It is further alleged that he took her to a sawmill field and committed rape.

3. The State’s case is primarily built on the victim’s statements recorded under Sections 161 and 164 CrPC, which detail the incident, along with statements of the informant, eyewitnesses, the school manager (regarding the victim’s age), and the medical examiner. A charge sheet has been filed after completion of the investigation.

4. The medical examination of the victim noted that her hymen was “old torn”, and no spermatozoa were found in the vaginal smear. 1

5. The applicant was arrested on 23.06.2024 and has remained in judicial custody since then. His first and second bail applications were rejected by the trial court, most recently by the Additional Sessions Judge, Haridwar on 23.10.2024, citing the grave nature of the allegations and the involvement of a minor. The present bail plea has been preferred before the High Court.

6. Heard the learned counsel for the parties and perused the records.

7. Learned counsel for the applicant submits that he has been falsely implicated due to personal enmity. It is stated that the informant suspected the applicant of being in a relationship with his wife, who allegedly had been living with the applicant of her own volition for the past few years.

8. The learned counsel highlights that the FIR was lodged out of vengeance, and that there is no independent corroborative evidence except for the oral statements of the victim, which are susceptible to tutoring and manipulation, especially given the family dispute.

9. The medical report, which found no evidence of spermatozoa and described the hymen as “old torn”, was submitted to counter the allegation of recent penetrative assault. Furthermore, the cross- examination of PW-1 (the informant) has brought inconsistencies to light: notably, he disputed the age of the victim and denied the incident during testimony.

10. It is also submitted that the applicantis a married man aged about 34 years and employed as a mason, submits that he has no prior criminal antecedents and possesses deep roots in the local community. He has been in judicial custody since June 2024, and the trial is currently underway, with some key prosecution witnesses already examined. In support of his plea for bail, the applicant undertakes not to tamper with the evidence or abscond and expresses his willingness to abide by any conditions that this Hon’ble Court may impose.

11. The learned counsel for the State strongly opposes the bail application, emphasising the seriousness of the alleged offence, involving sexual 2 assault on a minor, which attracts the stringent provisions of the POCSO Act.

12. It is submitted that the victim’s statements under Sections 161 and 164 CrPC are detailed, consistent, and credible, forming a strong prima facie case against the applicant.

13. The State further asserts that the age of the victim, based on the school records, confirms her status as a minor. The medical examination, while not conclusively confirming rape, supports the narrative provided by the victim and the informant.

14. The State places reliance on the witness statements, the spot inspection, and other corroborative material gathered during the investigation. It is stressed that the FSL report is still awaited, and that premature release on bail could adversely affect the trial.

15. It is also contended that the applicant’s allegations of false implication to a personal relationship with informant’s wife are unsubstantiated and do not, in any event, negate the victim’s testimony. The State denies any procedural irregularity and maintains that the investigation was carried out in accordance with the law.

16. The law regarding the grant of bail is well settled through numerous judicial pronouncements of the Supreme Court. While considering a bail application, the court must strike a balance between individual liberty and the interest of society. The factors to be considered include the nature and gravity of the accusation, the severity of punishment in case of conviction, the possibility of the applicant fleeing from justice or tampering with evidence, the antecedents of the applicant, and reasonable apprehension of witnesses being influenced.

17. In the present case, after detailed examination of the record, several crucial aspects emerge that require careful consideration.

18. The applicant has been judicial custody since 21.06.2024, undergoing incarceration for a period of approximately ten months as of the date of the hearing. The record indicates that the investigation has been concluded, the charge sheet stands filed, and the trial is 3 presently underway. Notably, the statements of PW-1 (the complainant) and PW-2 (the victim) have already been recorded.

19. There is no material on record to suggest that the applicant has any criminal history. In the counter affidavit, it is stated that information regarding criminal antecedents was sought, but the report was still awaited. In the absence of any material suggesting criminal antecedents, it must be presumed that the applicant has no prior criminal history.

20. The applicant is a mason by profession with a fixed place of residence in the locality. He is a married man, aged 34 years, with children, and has roots in the community. These factors substantially reduce the risk of flight. Moreover, with the investigation complete and the charge sheet filed, the risk of evidence tampering is also considerably diminished.

21. After weighing all the above factors, this Court is of the view, that while the nature of the accusation is indeed serious, the present case presents several peculiarities that tilt the balance in favour of granting bail: (a) First, the medical evidence raises significant doubts about the occurrence of a recent sexual assault as alleged. The finding of "hymen torn old" in the medical examination report and the categorical statement in the pathology report No definitive opinion about sexual assault can be given", creates substantial doubt about the State's version of events. (b) Second, the alleged retraction by the complainant during cross- examination further weakens the State's case. When complainant himself disputes the age of the victim and denies the incident, it raises serious questions about the veracity of the allegations. (c) Third, the possibility of false implication due to personal enmity cannot be ruled out at this stage, especially given the consistent 4 stand of the applicant and the alleged retraction by the complainant. (d) Fourth, the applicant has been in custody for more than ten months, the investigation is complete, and the trial is in progress. In Hussainara Khatoon v. Home Secretary, State of Bihar [(1980) 1 SCC 81], the Supreme Court emphasised that the right to a speedy trial is a fundamental right under Article 21, and prolonged pre-trial detention without justifiable reason violates this right; and (e) Fifth, there is no material to suggest that the applicant, if released on bail, would pose a threat to society, attempt to influence witnesses, or flee from justice. He is stated to be a resident of the locality with a fixed place of residence and occupation.

22. While the concerns raised by the State regarding the sensitive nature of offences under the POCSO Act are duly noted, equal weight must be accorded to the legal principle that an applicant is presumed innocent until proven guilty. As observed by the Hon’ble Supreme Court in Dataram Singh v. State of Uttar Pradesh, [(2018) 3 SCC 22], “it is not in the interest of justice that an applicant should be in jail for an indefinite period merely because the trial is not likely to end in the near future.”

23. The grant of bail in this case shall not be construed as an expression of opinion on the merits of the case. The observations made herein are solely for the purpose of considering the present bail application and shall not influence the trial proceedings in any manner. ORDER Let the applicant be released on bail in connection with Case Crime No. 572 of 2024, registered at Police Station Kotwali Laksar, District Haridwar, under Section 376 IPC and Sections 3(a)/4 of the POCSO Act, 2012, on furnishing 5 a personal bond of ₹50,000/- and two sureties of the like amount, to the satisfaction of the court concerned, subject to the following conditions: (i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or any authority. (ii) The applicant shall not evade the trial and appear before the trial court as and when required; and (iii) In case of breach of any of the above conditions, the State shall be at liberty to move an appropriate application for cancellation of bail. NR/ (Ashish Naithani J.)

17.04.2025 6