Lear ned counsel has furt her relied upon vs St at e,

Mr. B.S. Negi, learned counsel for t he applicant .

2. Mr. Ak shay Lat w al, lear ned A.G.A. for t he St at e.

3. The applicant – Kuldeep Singh, w ho is in j udicial cust ody in connect ion wit h FI R/ Case Crim e No. 0002 of 2024, under Sect ions 376AB of I PC and Sect ions 5( l) / 6, 5( m ) / 6 and 5( n) / 6 of Prot ect ion of Childr en fr om Sexual Offences Act , 2012 regist ered at P.S.- Tharali, Dist rict Cham oli, has sought his r elease on bail.

4. Hear d lear ned counsel for t he part ies and per used t he r ecords. t hen, ( Bua) , levelled against t he m at ernal aunt

5. FI R was lodged on 05.01.2024 under Sect ions 376AB of I PC and Sect ions 5( l) / 6, 5( m ) / 6 and 5( n) / 6 of Prot ect ion of Childr en from Sex ual Offences Act , 2012. I n t he FI R, t he allegat ions have been applicant t hat when t he vict im was residing wit h t he applicant , w ho is t he son of her aunt , did phy sical int er cour se wit h her. The dat e, t im e and y ear of t he incident were not m ent ioned in t he FI R and st at em ent of t he vict im under Sect ion 161 Cr .P.C. and 164 Cr .P.C. wer e I nvest igat ing Officer and recor ded by Magist rat e concer ned. I n her st at em ent also, she has r eit erat ed t he fact s, w hich have been com plaint . Vict im was narrat ed m edically exam ined and as per t he m edical report , t he doct or w ho exam ined her , have t he t he given an opinion regarding sex ual assault can be given. t hat no definit e opinion counsel Lear ned t he applicant 6. subm it s t hat t he vague allegat ions have been levelled against t he applicant and even if t he FI R is t aken on it s face value, even t hen, t he incident r elat es t o m ore t han 10 years back . No reasons have been m ent ioned in t he FI R or in t he st at em ent of t he vict im s t hat what was t he r eason for not filing com plaint at t he t im e when t he alleged incident t ook place. Even in t he count er affidavit , learned St at e Counsel have subm it t ed t hat t he vict im had died on 06.04.2024 and her st at em ent wer e not recor ded befor e t he t rial court . report ed Lear ned counsel for t he applicant has 7. relied upon a j udgm ent passed by Hon’ble Apex Court in t he case of R. Shaj i Vs. St at e of Kerala, ( 2013) 14 SCC 266, wher ein, Hon’ble Apex Court has held t hat a st at em ent r ecor ded under Sect ion 164 Cr.P.C. can be t he purpose of corroborat ing st at em ent s m ade by wit nesses in t he com m it t al court or ev en t o cont radict t he sam e. But , since t he defence had no opport unit y t o cross- exam ine t he wit nesses whose st at em ent s are recor ded under Sect ion 164 Cr.P.C., such st at em ent s cannot be t reat ed as subst ant ive evidence. relied upon Lear ned counsel has furt her relied upon 8. a j udgm ent passed by Hon’ble Apex Court in t he case of Som asundaram @ Som u Vs. St at e, ( 2020) 7 SCC 722. Paragr aph 84 of t he j udgm ent is ext ract ed her einbelow : - r eport ed “ 84. Thus, in a case w here a w it ness, in his st at em ent under Sect ion 164 Cr.P.C., m akes culpabilit y of t he accused beyond doubt but w hen he is put on t he w it ness st and in t he 164 under Sect ion t rial, he does a com plet e som ersault , as t he st at em ent subst ant ial evidence t hen w hat w ould be t he posit ion? The subst ant ive evidence t he evidence rendered in t he court . Should t here be no ot her evidence against t he accused, it w ould be im perm issible t o convict t he accused on t he basis of t he st at em ent under Sect ion 164.” cont ra, t hat vict im has support ed learned St at e Counsel 9. Per subm it s t he prosecut ion st ory and t here is no cont radict ion t he FI R and st at em ent r ecor ded under Sect ion 161 Cr .P.C. and 164 Cr.P.C. t he t hat in view

10. Having consider ed t he subm issions, under t he fact s and circum st ances of t he case t he and keeping prosecut ion st ory is not support ed by t he m edical report and also t he fact t hat t he vict im was not exam ined as a prosecut ion wit ness and she had died, t he defence had no opport unit y t o cross- exam ine her and t hus, her st at em ent recor ded under Sect ion 164 Cr.P.C. cannot be relied upon, t his Court is of t he view t hat it is a case fit for bail and t he applicant deser ves t o be enlarged on bail. t her efore,

11. Accordingly, allowed. t he bail applicat ion

12. Let t he applicant be released on bail on his ex ecut ing a personal bond and furnishing t wo reliable suret ies each of t he lik e am ount , t o t he sat isfact ion of t he court concerned. Uj j wal ( A l o k M a h r a J.) 04.06.2025