2025:UHC:2972 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FIRST BAIL APPLICATION NO. 2498 of 2024 Shivam Kumar …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. Raj Kumar Singh, learned counsel. Counsel for the State : Ms. Rangoli Purohit, Brief Holder. Hon’ble Ashish Naithani, J. The present bail application is filed by the applicant, Shivam Kumar, seeking regular bail in connection with FIR No. 21 of 2024 registered at Police Station Joshimath, District Chamoli, for offences under Sections 363, 366, 376(3) IPC and Sections 4(2), 5/6 of the POCSO Act, 2012. 2. The FIR was lodged on 29.06.2024 by the mother of the victim, alleging that her 14-year-old daughter had gone to school but did not return. Upon enquiry, it was found that she had not attended school that day. Later, the victim was recovered on 30.06.2024 along with the present applicant from a guest house in Dehradun. 3. Upon her recovery, the victim stated that she was induced by the applicant, with whom she had been in contact over social media, and that the applicant had 1 2025:UHC:2972 forcibly established physical relations with her. Based on her statements, the applicant was arrested, and relevant provisions of IPC and POCSO Act were invoked. 4. Learned counsel for the applicant submits that the applicant is 18 years of age and has no prior criminal antecedents. He argues that the FIR has been falsely lodged due to caste-based disapproval of the friendship between the victim and the applicant. 5. It is further submitted that the initial FIR only invoked Section 363 IPC and that offences under Sections 376(3) IPC and POCSO Act were added later, allegedly without corroborating medical or forensic evidence. It is pointed out that the medical report of the victim shows no external injury and does not conclusively prove sexual assault. 6. The applicant asserts that the victim had voluntarily accompanied him and that the physical relationship, if any, was not forced. It is contended that there are material contradictions in the statements of the victim recorded under Sections 161 CrPC and those made before the trial court. 7. The applicant has been in custody since 30.06.2024 and submits that he is not likely to abscond or tamper with the evidence. It is further pleaded that the trial is progressing and that the applicant has already spent over 8 months in custody. 8. Learned State Counsel strongly opposed the bail application, submitting that the offences alleged are grave and pertain to sexual assault on a minor. It is 2 2025:UHC:2972 pointed out that the date of birth of the victim is 08.10.2010, making her just 14 years old at the time of the incident. 9. It is submitted that the victim, upon recovery, gave consistent statements under Section 161 CrPC as well as before the trial court, wherein she clearly named the applicant and deposed that he forcibly took her away and established physical relations with her. 10. The State emphasizes that the consent of a minor is irrelevant under law and that the act alleged falls within the definition of aggravated penetrative sexual assault under Section 5 of the POCSO Act. It is further submitted that the charge sheet has been filed after proper investigation, which includes the victim’s medical report, school records confirming her minority, and witness testimonies. 11. The trial is ongoing, and three prosecution witnesses including the victim (PW1), her mother (PW2), and her father (PW3) have already been examined. The FSL report is awaited. The State expresses concern that the release of the applicant at this stage may undermine the trial or adversely affect the minor victim. 12. Heard the Counsels of the Parties and perused the records. 13. The Court observes that the FIR discloses that the victim, aged 14 years, was missing from home and later recovered with the present applicant. The age of the victim is supported by documentary evidence 3 2025:UHC:2972 and is not disputed. 14. The statements of the victim under Sections 161 and 164 CrPC, as well as her testimony before the trial court as PW1, consistently implicate the applicant. She has clearly deposed that the applicant took her away and forcibly established sexual relations with her. The consistency across all three versions adds weight to her testimony at the pre-trial stage. 15. Furthermore, the Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, held that, “absence of injuries on the prosecutrix cannot be a ground to disbelieve the incident of rape. Courts must be sensitive and not expect resistance or physical injuries in every case of sexual assault.” 16. Accordingly, the applicant’s arguments regarding absence of external injuries as stated in the medical report or the absence of FSL report are not persuasive in isolation. It is well settled that absence of injury does not, by itself, negate the allegation of sexual assault, especially when the victim is a minor. Moreover, medical and FSL reports are to be considered along with oral testimony and surrounding circumstances. 17. Also, in Vinod Kumar v. State of Haryana, (2015) 3 SCC 138, the Hon’ble Supreme Court held that, when the prosecutrix is below the age of consent, her consent is immaterial; the accused has no defence on that count. 18. Accordingly, in the present matter, the argument that the victim accompanied the applicant 4 2025:UHC:2972 voluntarily cannot be accepted in law, as consent of a child below 18 years of age is no defence under the POCSO Act. Section 29 of the Act also mandates a reverse burden of proof, which the defence has not discharged at this stage. 19. The seriousness of the offence, the age of the Victim, the nature of allegations, and the consistent testimony of the victim indicate that this is not a fit case for grant of bail. The trial is ongoing and though some witnesses have been examined, the apprehension of influencing or retraumatizing the minor victim cannot be ruled out. 20. In view of the gravity of the offence, the consistent statements of the minor victim, and the evidentiary material on record, this Court is not inclined to grant bail at this stage. 21. Accordingly, the bail application is rejected. 22. It is clarified that the observations made herein are limited to the consideration of the bail application and shall not influence the merits of the case during trial. ___________________ ASHISH NAITHANI, J. Dt: 09.04.2025 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=3410ef86ae41ec9fbabcd5dba6b3a2c24b5a a08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7F F0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.23 18:34:55 +05'30'