2025:UHC:2919 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FIRST BAIL APPLICATION NO. 1648 of 2024 Kalim …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Ms. Irum Zeba and Mr. Rajat Munir Ali, learned counsels. Counsel for the State : Mr. Rakesh Negi, learned Brief Holder. Hon’ble Ashish Naithani, J. The present bail application has been filed on behalf of the applicant, Kalim, aged about 25 years, who is in judicial custody since 07.01.2024 in connection with FIR No. 0758 of 2023, registered at Police Station Kotwali Gangnahar, District Haridwar, for offences punishable under Sections 376(3), 506 IPC and Section 3(a), 4 of the POCSO Act, 2012. 2. The case, as set out in the FIR lodged on 25.12.2023, is that on 24.12.2023, the 14-year-old daughter of the informant was on her way to her uncle’s house when the co-accused Arbaz and the applicant allegedly took her to Arbaz’s house, threatened her with a knife, and committed sexual assault. It was also alleged that they threatened to make a video of the act viral on social media. 3. During the investigation, Sections 354-A IPC 1 2025:UHC:2919 and Sections 7 & 8 POCSO Act were dropped insofar as the applicant is concerned. The charge sheet has been filed under Sections 376(3), 506 IPC and Section 3(a)/4 of the POCSO Act. 4. Learned counsel for the applicant contends that the FIR is an outcome of a familial dispute and that the Victim and the applicant were in a consensual relationship. It is submitted that the version projected in the FIR was lodged by the victim’s father without her concurrence, and the narrative therein is not reflected in the victim’s own statement under Section 161 CrPC. 5. It is further submitted that in her statement under Section 161 CrPC, the Victim categorically stated that she was romantically involved with the applicant, that they were in regular communication over mobile phone, and that no sexual act was committed by the applicant. She also expressed uncertainty regarding the existence of any video and denied having seen such video. 6. The applicant’s counsel argues that the statement recorded under Section 164 CrPC is a marked improvement over the Section 161 CrPC statement and appears to be influenced by external pressure. The allegation of sexual assault appears for the first time in the 164 statements, which not only contradicts her prior version but also raises concerns regarding its voluntariness. 7. It is also urged that the Victim’s deposition before the trial court (PW3) again shows further improvisation, omitting the existence of a romantic relationship with the applicant, despite it being 2 2025:UHC:2919 mentioned in her earlier statement under Section 161 CrPC. These inconsistencies, the applicant contends, create a serious dent in the credibility of the State’s case and attract caution at the stage of bail. 8. It is emphasized that the co-accused Arbaz, who is alleged to have played an identical role, was not arrested and was only served a notice under Section 41-A CrPC. This, according to the applicant, demonstrates discriminatory treatment and calls for parity in grant of bail. 9. The applicant has no criminal antecedents, is in judicial custody since 07.01.2024, and has cooperated throughout the investigation. It is also submitted that five prosecution witnesses have already been examined, including the Victim, and there is no allegation of witness intimidation or tampering on part of the applicant. 10. Learned State Counsel has opposed the bail application, submitting that the allegations made in the FIR and reiterated by the victim in her Section 164 CrPC statement and in court testimony are grave and pertain to the commission of rape on a minor child. 11. It is contended that the statement under Section 164 CrPC is recorded before a Magistrate and carries significant evidentiary value, having been made voluntarily and in a legally safeguarded environment. The Victim, in her deposition before the trial court as PW3, has supported the allegations and clearly named the applicant as one of the perpetrators. 12. The State relies upon the medical report, 3 2025:UHC:2919 statements of the Principal of the school (to establish the age of the victim), and the testimony of independent witnesses recorded under Section 161 CrPC. It is argued that these materials cumulatively corroborate the victim's version and sustain the charge under Section 376(3) IPC read with Section 3(a)/4 of the POCSO Act. 13. The State contends that the seriousness of the offence, the vulnerability of the victim, and the stage of trial weigh heavily against grant of bail. It is apprehended that release of the applicant may affect the psychological wellbeing of the minor victim and set a detrimental precedent in cases involving minors. 14. Heard the learned counsel for the parties and perused the records. 15. It is not in dispute that the Victim is a minor, and hence, her consent, even if assumed, would be legally inconsequential. Nonetheless, the credibility of her account and consistency of her statements remain important touchstones at this stage. 16. The Victim, in her statement under Section 161 CrPC, unequivocally stated that she was in a romantic relationship with the applicant, denied any sexual activity, and also expressed that she had not seen any alleged video. This statement, being closest in proximity to the date of the incident, is significant. 17. The subsequent statement under Section 164 CrPC introduces serious allegations of sexual assault by the applicant. The change in narrative raises questions of voluntariness and external influence. The trend of 4 2025:UHC:2919 progressive embellishment continues in her deposition before the trial court, wherein she not only attributes guilt to the applicant but also omits mention of the romantic relationship that was acknowledged earlier. These inconsistencies, at the very least, introduce reasonable doubt which must be considered at the pre- trial stage. 18. The medical report of the Victim indicates that her hymen was found to be intact, which prima facie suggests that no penetrative sexual assault took place. This medical evidence cannot be ignored at this stage and casts further doubt on the allegations of rape. 19. The co-accused Arbaz, with similar alleged involvement, was not arrested and was instead served with a notice under Section 41-A CrPC. The State has offered no cogent explanation for this differential treatment. This Court finds merit in the applicant’s plea for parity, especially when his custodial presence has not advanced the trial materially. 20. The applicant has remained in custody for over three months; five witnesses including the Victim have already been examined. There is no allegation of him misusing his liberty to influence the course of the trial. The trial is likely to take considerable time, and continued incarceration at this stage may amount to pre-trial punishment. 21. The Hon’ble Supreme Court in Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, held that while the seriousness of the offence is an important factor, it cannot outweigh the fundamental right to personal 5 2025:UHC:2919 liberty where the material on record does not prima facie support the charge. Similarly, in Prasanta Kumar Sarkar, the Court emphasised that bail decisions must balance the presumption of innocence with the interests of justice 22. Let the applicant, Kalim s/o Aslam, R/o Village Raheempur, Police Station Kotwali, Gangnahar, Roorkee. District - Haridwar be released on bail on furnishing a personal bond with two sureties of the like amount to the satisfaction of the court concerned. 23. The applicant shall appear before the trial court on each date fixed, shall not tamper with evidence or influence witnesses, and shall not commit any offence while on bail. In case of breach of any of these conditions, the State shall be at liberty to apply for cancellation of bail. 24. Accordingly, the bail application is allowed. ___________________ ASHISH NAITHANI, J. Dt: 09.04.2025 SB 6 SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24 b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D 7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.23 12:12:07 +05'30'