2025:UHC:3052 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FIRST BAIL APPLICATION NO. 2241 of 2024 Ganga Singh Bora alias Kannu …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. Anoop Jaiswal, learned counsel through video conferencing. Counsel for the State : Ms. Manisha Rana Singh, learned D.A.G. Hon’ble Ashish Naithani, J. This is a first bail application seeking regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The applicant, aged 19 years, is in judicial custody since 28.08.2024 in connection with F.I.R. No. 199 of 2024, registered at Police Station Dineshpur, District Udham Singh Nagar, for the offences punishable under Sections 140(3), 137(2), 87, and 64(1) of the Bharatiya Nyaya Sanhita, 2023, read with Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012. 2. As per the FIR, the complainant's daughter, a minor studying in Government Girls Inter College, Dineshpur, went missing on 23.08.2024. An FIR was lodged the following day. During the investigation, she was recovered on 28.08.2024 from near a petrol pump in Dineshpur, allegedly in the company of the applicant. 1 2025:UHC:3052 3. The school record, as per the prosecution, reveals the date of birth of the victim to be 08.05.2007, placing her below 18 years on the date of the incident. The medical examination was refused by the victim. The applicant has been charge-sheeted and is presently in judicial custody. 4. Learned counsel for the applicant submits that this is a case arising from a romantic relationship between two young individuals, where the girl initially stated that she had voluntarily married the applicant and was living with him out of love and consent. It is contended that the girl’s statement under Section 180 BNSS was categorical and only later did she revise her version, allegedly under parental or societal pressure. 5. It is urged that her narrative shows material inconsistencies she first claimed to be in Lucknow, then Rampur, and later Bazpur all without any medical corroboration or independent witness support. 6. The applicant further submits that he is a 19- year-old boy with no previous criminal history and has already spent over seven months in custody. It is argued that the FIR discloses no act that would attract the rigours of Section 5/6 of the POCSO Act, particularly when there is no conclusive medical or forensic evidence of sexual assault and the victim's statements are fluctuating. It is also submitted that consent, though immaterial in law due to minority, assumes evidentiary value in assessing voluntariness and absence of force or coercion. The applicant undertakes to abide by any conditions that may be imposed by this Court. 2 2025:UHC:3052 7. Per contra, learned State Counsel opposes the bail and submits that the minor was found in the company of the applicant, and statements recorded during investigation make out a case under Sections 5/6 POCSO Act. The school certificate confirms her minority, and hence, even voluntary association cannot excuse the applicant’s conduct in law. It is emphasized that the POCSO Act makes no exception for cases where the minor purportedly consents to the relationship consent of a minor is legally irrelevant and cannot be a defence to such serious offences. The State further contends that the girl’s statement under Section 183 BNSS clearly attributes culpability to the applicant and establishes prima facie sexual contact with a child below 18 years of age. 8. Heard the learned counsels and perused the material on record. 9. The present case requires careful balancing between the strict statutory protections available to minors under the POCSO Act and the factual uncertainties stemming from inconsistent statements and lack of medical corroboration. 10. The initial statement of the victim under Section 180 BNSS ex facie shows that she left home voluntarily and was living as a married partner with the applicant. She dissuaded her parents from searching for her and expressed her unwillingness to return. Her subsequent shift under Section 183 BNSS claiming the applicant took her to Bazpurlacks detail and supporting evidence. Her three different locations (Lucknow, Rampur, Bazpur) reflect internal contradictions in the 3 2025:UHC:3052 State’s case. 11. It is also relevant that no medical examination was conducted — not because of delay or lack of effort on part of the police, but because the victim refused it. While refusal does not diminish the allegations per se, it curtails the scope for objective medical verification, especially in the absence of injuries or eyewitnesses. 12. The Hon’ble Supreme Court in Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, emphasized that mere relationship or physical proximity, without evidence of force, threat, or inducement, does not satisfy the requirement of aggravated penetrative assault under Section 6 of the POCSO Act. In Ravindra v. State of M.P., (2015) 4 SCC 491, the Court further held that improvement or inconsistency in victim statements undermines the weight of such testimony at the stage of bail. 13. It is not disputed that the applicant has no previous criminal record and has remained in custody since 28.08.2024. The charge sheet has been filed and the trial is yet to commence. There is no allegation that the applicant attempted to tamper with evidence or abscond. There is no allegation that the applicant attempted to tamper with evidence or abscond. 14. It is also noteworthy that the applicant himself is barely 19 years of age, a young adult just at the threshold of majority and the alleged acts arise out of a relationship context rather than coercion or force. Courts have often emphasized that youthful indiscretion, particularly in matters involving 4 2025:UHC:3052 consensual relationships between adolescents, must be considered with sensitivity, especially when the accused is of a tender age and not a hardened criminal. The question of whether the conduct of the applicant attracts the full rigors of POCSO offences or is mitigated by the circumstances narrated by the victim herself, will be adjudicated during trial. ORDER Let the applicant, Ganga Singh Bora, be released on his furnishing a personal bond with two sureties of the like amount to the satisfaction of the court concerned. The applicant shall not tamper with the evidence, shall not attempt to influence any witness, and shall appear before the trial court on each date fixed. In case of breach of any of these conditions, the State shall be at liberty to move for cancellation of bail. The bail application is allowed. ___________________ ASHISH NAITHANI, J. Dt: 17.04.2025 SB 5 SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5 aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7F F0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.25 15:56:57 +05'30'