2025:UHC:2971 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FIRST BAIL APPLICATION NO. 2476 of 2024 Kamal Kumar …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. Dinesh Chandra Dimri, learned counsel. Counsel for the State : Ms. Rangoli Purohit, Brief Holder. Hon’ble Ashish Naithani, J. This is the first bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, preferred by the applicant Kamal Kumar, seeking regular bail in connection with FIR No. 316 of 2023 dated 26.11.2023, registered at Police Station Rajpur, District Dehradun, for offences punishable under Sections 363, 366A, 376(3) of the Indian Penal Code and Section 5J(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"). 2. The minor daughter of the informant, Rakesh Paswan, went missing on 26.11.2023. A case under Section 365 IPC was initially registered. Subsequently, on 20.03.2024, based on call detail records and location tracing, the victim was recovered along with the applicant from an under-construction building in Bhagwanpur, Haridwar. 1 2025:UHC:2971 3. The investigation further revealed that the victim was a minor. Her date of birth was confirmed by the Principal of her school and her birth certificate. Accordingly, the investigating officer invoked Sections 363, 366A, and 376(3) IPC and Section 5J(ii)/6 of the POCSO Act. 4. Upon her recovery, the victim was subjected to medical examination which confirmed that she was approximately 13 weeks pregnant. 5. Learned counsel for the applicant submits that the applicant and the victim were in a consensual relationship and had even entered into a marriage agreement. It is urged that the applicant, being only 19 years old at the time of the alleged incident, was unaware of the legal consequences of his actions. It is further emphasized that there was no element of coercion or deceit in the relationship, and the alleged victim had accompanied the applicant voluntarily on multiple occasions. 6. It is further submitted that the applicant comes from a poor and socially disadvantaged background and has no prior criminal history. Counsel contends that the applicant poses no flight risk and undertakes not to interfere with the ongoing trial or influence any witness. It is also pointed out that the applicant has deep roots in the local community, resides with his family, and has cooperated throughout the investigation. 7. The charge sheet has since been filed and is pending consideration before the learned Special Judge, POCSO, Dehradun. Three prosecution witnesses 2 2025:UHC:2971 have already been examined and the case is listed for further evidence. It is argued that the presence of the applicant in custody is no longer necessary for the purpose of investigation or trial, and prolonged detention would serve no fruitful purpose. 8. Heard learned counsel for the parties and perused the records 9. It is pleaded that incarceration at such a formative stage in life would ruin the applicant’s future and hinder his social reintegration. Reliance is placed on the principle of reformation and the constitutional mandate under Article 21 to emphasize that personal liberty cannot be curtailed unnecessarily, particularly when the applicant has already spent a substantial period in custody and the trial is likely to take time. 10. Per contra, the State has opposed the bail application. Learned Brief Holder submits that the offence is serious and grave in nature. The victim was a minor and her age is corroborated by official school records. 11. It is contended that under the POCSO Act, consent of the victim is irrelevant if she is below 18 years of age. The law presumes lack of consent, and the statutory presumption under Section 29 of the POCSO Act applies. 12. The State also relies on the medical evidence and the DNA report, which clearly establishes the applicant's sexual involvement with the minor victim, leading to pregnancy. It is asserted that such conclusive forensic evidence places the case beyond 3 2025:UHC:2971 mere allegations. The State further submits that the medical findings not only support the State’s version but also reinforce the credibility of the victim’s statement recorded under Section 164 CrPC. 13. The State further contends that the trial is at an advanced stage and that releasing the applicant on bail at this juncture would endanger the case. There is a serious apprehension that the applicant, if enlarged on bail, may exert influence on the remaining witnesses or attempt to tamper with the evidence, thereby derailing the course of justice. 14. The settled parameters for adjudicating a bail application include the gravity and seriousness of the offence, the nature and strength of the evidence available on record, the possibility of the accused fleeing from justice or tampering with the evidence, and the stage and progress of the trial. The overarching aim is to balance the individual’s right to liberty with the interests of the justice system. 15. In the present case, the age of the victim, as established through her official school records, confirms that she was a minor at the time of the incident. The offence alleged against the applicant falls squarely within the ambit of aggravated penetrative sexual assault under the POCSO Act. The explanation offered by the applicant regarding the consensual nature of the relationship holds no legal weight in light of the statutory framework under the POCSO Act. The law unequivocally recognizes that consent of a child below 18 years of age is immaterial for the purposes of such offences. 4 2025:UHC:2971 16. The Hon'ble Supreme Court, in Independent Thought v. Union of India, (2017) 10 SCC 800, and State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681, has categorically held that the consent of a minor is legally non-est and any sexual act with a minor constitutes an offence, irrespective of perceived consent. These decisions underscore the protective intent of the POCSO Act and affirm the non-negotiable statutory safeguards provided to minors. 17. The most compelling aspect of the present case is that upon her recovery, the victim was medically examined and found to be approximately 13 weeks pregnant. This factual development significantly strengthens the state’s narrative and cannot be brushed aside as a mere coincidence. 18. The foetus removed during the medical termination of pregnancy was sealed, labelled, and forwarded for DNA profiling to the Forensic Science Laboratory (FSL), Dehradun. Blood samples of both the victim and the applicant were also collected before the learned Magistrate and duly sent for comparative DNA analysis. 19. The Hon’ble Supreme Court in Neeraj Dutta v. State (NCT of Delhi), (2023) 2 SCC 629, emphasized that scientific evidence such as DNA profiling can serve as reliable corroborative proof in criminal trials and substantially aid in ascertaining the truth. 20. The medical and forensic evidence in the present matter operates as a crucial linchpin, directly 5 2025:UHC:2971 corroborating the State’s case. Such scientific evidence not only reinforces the reliability of the victim's testimony but also substantially rules out the possibility of false implication. 21. Under Section 29 of the POCSO Act, once the foundational facts are established, the burden shifts upon the accused to rebut the presumption of guilt. In the present case, the age of the victim, the medical findings, and the DNA evidence collectively activate the statutory presumption, which the applicant has failed to dislodge 22. Given the gravity of the offence, the age of the victim, the statutory presumption under the POCSO Act, and the compelling medical and DNA evidence substantiating the charge, this Court is of the considered view that the applicant has not made out a case for bail. Enlarging the applicant at this juncture would be premature and may undermine the course of justice 23. Granting bail in a matter involving such serious allegations, backed by clear medical and scientific proof, would send the wrong signal and may potentially compromise the sanctity of the ongoing trial. 24. Accordingly, the bail application is rejected. 25. It is made clear that the observations made herein are confined to the adjudication of the present bail application and shall not be construed as an expression of opinion on the merits of the case. The learned trial court shall proceed independently and 6 2025:UHC:2971 uninfluenced by any of the findings or views recorded in this order. ___________________ ASHISH NAITHANI, J. Dt: 09.04.2025 SB 7 SHIKSHA BINJOLA Digitally signed by 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 Date: 2025.04.24 18:07:35 +05'30'