Kam al Kum ar v. St at e of Ut t arakhand

vict im was a m inor. Her dat e of birt h was confirm ed by t he Principal of her school and her birt h cert ificat e. Accordingly, t he invest igat ing officer invoked Sect ions 363, 366A, and 376( 3) I PC and Sect ion 5J( ii) / 6 of t he POCSO Act .

4. Upon her recovery, t he vict im was subj ect ed t o m edical exam inat ion which confirm ed t hat she was approxim at ely 13 weeks pregnant .

5. Learned counsel for t he applicant subm it s t hat t he applicant and t he vict im were in a consensual relat ionship and had even ent ered int o a m arriage agreem ent . I t is urged t hat t he applicant , being only 19 years old at t he t im e of t he alleged incident , was unaware of t he legal consequences of his act ions. I t is furt her em phasized t hat t here was no elem ent of coercion or deceit in t he relat ionship, and t he alleged vict im had accom panied t he applicant volunt arily on m ult iple occasions.

6. I t is furt her subm it t ed t hat t he applicant com es from a poor and socially disadvant aged background and has no prior crim inal hist ory. Counsel cont ends t hat t he applicant poses no flight risk and undert akes not t o int erfere wit h t he ongoing t rial or influence any wit ness. I t is also point ed out t hat t he applicant has deep root s t he local com m unit y, resides wit h his fam ily, and has cooperat ed t hroughout t he invest igat ion.

7. The charge sheet has since been filed and is pending considerat ion before t he learned Special Judge, POCSO, Dehradun. Three prosecut ion wit nesses 2 have already been exam ined and t he case is list ed for furt her evidence. I t is argued t hat t he presence of t he applicant in cust ody is no longer necessary for t he purpose of invest igat ion or t rial, and prolonged det ent ion would serve no fruit ful purpose.

8. Heard learned counsel for t he part ies and perused t he records

9. I t is pleaded t hat incarcerat ion at such a form at ive st age in life would ruin t he applicant ’s fut ure and hinder his social reint egrat ion. Reliance is placed on t he principle of reform at ion and t he const it ut ional m andat e under Art icle 21 t o em phasize t hat personal libert y cannot be curt ailed unnecessarily, part icularly when t he applicant has already spent a subst ant ial period in cust ody and t he t rial is likely t o t ake t im e.

10. Per cont ra, t he St at e has opposed t he bail applicat ion. Learned Brief Holder subm it s t hat t he offence is serious and grave in nat ure. The vict im was a m inor and her age is corroborat ed by official school records.

11. I t is cont ended t hat under t he POCSO Act , consent of t he vict im is irrelevant if she is below 18 years of age. The law presum es lack of consent , and t he st at ut ory presum pt ion under Sect ion 29 of t he POCSO Act applies.

12. The St at e also relies on t he m edical evidence and t he DNA report , which clearly est ablishes t he applicant 's sexual involvem ent wit h t he m inor vict im , leading t o pregnancy. I t is assert ed t hat such conclusive forensic evidence places t he case beyond 3 m ere allegat ions. The St at e furt her subm it s t hat t he m edical findings not only support t he St at e’s version but also reinforce t he credibilit y of t he vict im ’s st at em ent recorded under Sect ion 164 CrPC.

13. The St at e furt her cont ends t hat t he t rial is at an advanced st age and t hat releasing t he applicant on bail at t his j unct ure would endanger t he case. There is a serious apprehension t hat t he applicant , if enlarged on bail, m ay exert influence on t he rem aining wit nesses or at t em pt t o t am per wit h t he evidence, t hereby derailing t he course of j ust ice.

14. The set t led param et ers for adj udicat ing a bail applicat ion include t he gravit y and seriousness of t he offence, t he nat ure and st rengt h of t he evidence available on record, t he possibilit y of t he accused fleeing from j ust ice or t am pering wit h t he evidence, t he st age and progress of t he t rial. The overarching aim is t o balance t he individual’s right t o libert y wit h t he int erest s of t he j ust ice syst em .

15. I n t he present case, t he age of t he vict im , as est ablished t hrough her official school records, confirm s t hat she was a m inor at t he t im e of t he incident . The offence alleged against t he applicant falls squarely wit hin t he am bit of aggravat ed penet rat ive sexual assault under t he POCSO Act . The explanat ion offered by t he applicant regarding t he consensual nat ure of t he relat ionship holds no legal weight light of t he st at ut ory fram ework under t he POCSO Act . The law unequivocally recognizes t hat consent of a child below 18 years of age is im m at erial for t he purposes of such offences. 4

16. The Hon'ble Suprem e Court , i n I n d e p e n d e n t Th o u g h t v . Un i o n o f I n d i a , ( 2 0 1 7 ) 1 0 SCC 8 0 0 , and St a t e o f M a d h y a Pr a d e sh v . M a d a n La l , ( 2 0 1 5 ) 7 SCC 6 8 1 , has cat egorically held t hat t he consent of a m inor is legally non- est and any sexual act wit h a m inor const it ut es an offence, irrespect ive of perceived consent . These decisions underscore t he prot ect ive int ent of t he POCSO Act and affirm t he non- negot iable st at ut ory safeguards provided t o m inors.

17. The m ost com pelling aspect of t he present t hat upon her recovery, t he vict im was m edically exam ined and found t o be approxim at ely 13 weeks pregnant . This fact ual developm ent significant ly st rengt hens t he st at e’s narrat ive and cannot be brushed aside as a m ere coincidence.

18. The foet us rem oved during t he m edical t erm inat ion of pregnancy was sealed, labelled, and forwarded for DNA profiling t o t he Forensic Science Laborat ory ( FSL) , Dehradun. Blood sam ples of bot h t he vict im and t he applicant were also collect ed before t he learned Magist rat e and duly sent for com parat ive DNA analysis.

19. The Hon’ble Suprem e Court in N e e r a j D u t t a v . St a t e ( N CT o f D e l h i ) , ( 2 0 2 3 ) 2 SCC 6 2 9 , em phasized t hat scient ific evidence such as DNA profiling can serve as reliable corroborat ive proof in crim inal t rials and subst ant ially aid in ascert aining t he t rut h.

20. The m edical and forensic evidence in t he present m at t er operat es as a crucial linchpin, direct ly 5 corroborat ing t he St at e’s case. Such scient ific evidence not only reinforces t he reliabilit y of t he vict im 's t est im ony but also subst ant ially rules out t he possibilit y of false im plicat ion.

21. Under Sect ion 29 of t he POCSO Act , once t he foundat ional fact s are est ablished, t he burden shift s upon t he accused t o rebut t he presum pt ion of guilt . I n t he present case, t he age of t he vict im , t he m edical findings, and t he DNA evidence collect ively act ivat e t he st at ut ory presum pt ion, which t he applicant has failed t o dislodge

22. Given t he gravit y of t he offence, t he age of t he vict im , t he st at ut ory presum pt ion under t he POCSO Act , and t he com pelling m edical and DNA evidence subst ant iat ing t he charge, t his Court is of t he considered view t hat t he applicant has not m ade out a case for bail. Enlarging t he applicant at t his j unct ure would be prem at ure and m ay underm ine t he course of j ust ice

23. Grant ing bail in a m at t er involving such serious allegat ions, backed by clear m edical and scient ific proof, would send t he wrong signal and m ay pot ent ially com prom ise t he sanct it y of t he ongoing t rial.

25. Accordingly, t he bail applicat ion is rej ect ed. I t is m ade clear t hat t he observat ions m ade herein are confined t o t he adj udicat ion of t he present bail applicat ion and shall not be const rued as an expression of opinion on t he m erit s of t he case. The learned t rial court shall proceed independent ly and 6 uninfluenced by any of t he findings or views recorded in t his order. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dt : 09.04.2025 SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2 c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A5 42D7FF0A9BED00E67B5283D205F18FE29BDF 5DD9, cn=SHIKSHA BINJOLA 7