Shivam Kum ar v. St at e of Ut t arakhand

m edical report , school records confirm ing her m inorit y, and wit ness t est im onies.

11. The t rial is ongoing, and t hree prosecut ion wit nesses including t he vict im ( PW1) , her m ot her ( PW2) , and her fat her ( PW3) have already been exam ined. The FSL report is await ed. The St at e expresses concern t hat t he release of t he applicant at t his st age m ay underm ine t he t rial or adversely affect t he m inor vict im .

12. Heard t he Counsels of t he Part ies and perused t he records.

13. The Court observes t hat t he FI R discloses t hat t he vict im , aged 14 years, was m issing from hom e and lat er recovered wit h t he present applicant . The age of t he vict im is support ed by docum ent ary evidence 3 and is not disput ed.

14. The st at em ent s of t he vict im under Sect ions 161 and 164 CrPC, as well as her t est im ony before t he t rial court as PW1, consist ent ly im plicat e t he applicant . She has clearly deposed t hat t he applicant t ook her away and forcibly est ablished sexual relat ions wit h her. The consist ency across all t hree versions adds weight t o her t est im ony at t he pre- t rial st age.

15. Furt herm ore, t he Suprem e Court in St at e of Punj ab v. Gurm it Singh, ( 1996) 2 SCC 384, held t hat , “ absence of inj uries on t he prosecut rix cannot be a ground t o disbelieve t he incident of rape. Court s m ust be sensit ive and not expect resist ance or physical inj uries in every case of sexual assault .”

16. Accordingly, t he applicant ’s argum ent s regarding absence of ext ernal inj uries as st at ed in t he m edical report or t he absence of FSL report are not persuasive in isolat ion. I t is well set t led t hat absence of inj ury does not , by it self, negat e t he allegat ion of sexual assault , especially when t he vict im is a m inor. Moreover, m edical and FSL report s are t o be considered along wit h t est im ony surrounding circum st ances.

17. Also, in Vi n o d Ku m a r v . St a t e o f H a r y a n a , ( 2 0 1 5 ) 3 SCC 1 3 8 , t he Hon’ble Suprem e Court held t hat , when t he prosecut rix is below t he age of consent , her consent is im m at erial; t he accused has no defence on t hat count .

18. Accordingly, t he present m at t er, t he argum ent t hat t he vict im accom panied t he applicant 4 volunt arily cannot be accept ed in law, as consent of a child below 18 years of age is no defence under t he POCSO Act . Sect ion 29 of t he Act also m andat es a reverse burden of proof, which t he defence has not discharged at t his st age.

19. The seriousness of t he offence, t he age of t he Vict im , t he nat ure of allegat ions, and t he consist ent t est im ony of t he vict im indicat e t hat t his is not a fit case for grant of bail. The t rial is ongoing and t hough som e wit nesses have been exam ined, t he apprehension of influencing or ret raum at izing t he m inor vict im cannot be ruled out .

20. I n view of t he gravit y of t he offence, t he consist ent st at em ent s of t he m inor vict im , and t he evident iary m at erial on record, t his Court is not inclined t o grant bail at t his st age.

22. Accordingly, t he bail applicat ion is rej ect ed. I t is clarified t hat t he observat ions m ade herein are lim it ed t o t he considerat ion of t he bail applicat ion and shall not influence t he m erit s of t he case during t rial. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 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=3410ef86ae41ec9fbabcd5dba6b3a2c24b5a a08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7F F0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA 5