2025:UHC:2921 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FIRST BAIL APPLICATION NO. 237 of 2024 Mohammad Husan …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. Pankaj Kumar Sharma, learned counsel. Counsel for the State : Mr. Bhaskar Chandra Joshi, A.G.A. Hon’ble Ashish Naithani, J. The Applicant is seeking regular bail under Section 439 of the Code of Criminal Procedure, 1973. The applicant, Mohammad Hasan, aged about 21 years, is in judicial custody since 14.07.2023 in connection with Case Crime No. 357 of 2023, registered at Police Station Patel Nagar, District Dehradun, for offences punishable under Sections 376, 354C, 354D, 506 IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”). 2. The factual backdrop, as it emerges from the record, indicates that the complainant initially lodged a missing report with respect to his minor daughter. Subsequently, upon her recovery, and based on her statements under Sections 161 Cr.PC, an FIR was registered alleging that the applicant had raped the victim at a hotel, and had further threatened her using a purported objectionable video. On the strength of 1 2025:UHC:2921 these statements, additional offences under the IPC and the POCSO Act were added. 3. The gravamen of the allegation is that the applicant, while in a friendship with the victim, lured her to a hotel, sexually assaulted her, and threatened to defame her by circulating an illicit video. 4. Heard the learned counsels for the parties and perused the records. 5. The learned counsel for the applicant submitted that the applicant has been falsely implicated in the instant case. It was argued that there is no ocular or medical evidence to support the allegation of rape. The alleged incident at the hotel remains unverified due to a lack of details or documentation. The mobile phone alleged to have been used for blackmail has not yielded any video, and the CFSL report remains inconclusive. It was further submitted that the victim's cross-examination does not support the narrative of a non-consensual act, and the statement of her father (PW-2) also fails to strengthen the State’s case. 6. The counsel further contended that the applicant has no previous criminal antecedents and has remained in custody for over nine months. The charge sheet has already been filed, and the trial is underway, with the depositions of four key prosecution witnesses the victim (PW-1), her father (PW-2), her mother (PW- 3), and an administrative officer (PW-4) having already been recorded. It was urged that the material inconsistencies in the state's case, coupled with the applicant's young age and clean antecedents, weigh in 2 2025:UHC:2921 favour of granting him bail. 7. Learned State Counsel opposed the bail application and submitted that the victim is a minor as per the school record, her date of birth being 25.05.2005. It was argued that the statement of the victim under Section 164 Cr.PC is specific and accuses the applicant of physical assault and threats. It was contended that the nature of the allegations is grave, the offences attract substantial punishment, and if enlarged on bail, the applicant may misuse the liberty by influencing witnesses or interfering in the ongoing trial. 8. The court finds that the record reveals that the initial missing report did not indicate any sexual misconduct. It was only after the victim’s recovery that the allegation of rape surfaced. Even then, the medical examination of the victim, conducted under the supervision of PW-4, Dr. Deepika Sahani, does not indicate conclusive signs of recent sexual assault. No injuries, external or internal, were documented. The state’s case thus hinges primarily on the oral testimony of the victim and the allegations therein. 9. It is well-settled that at the stage of consideration of bail, the Court does not conduct a mini-trial or test the veracity of each piece of evidence. However, the Court is required to examine whether, on the face of the material available, a prima facie case of such strength is made out that continued incarceration is necessary either for investigation, to prevent tampering with evidence, or to avoid the threat to public confidence. 3 2025:UHC:2921 10. In the present case, the victim’s cross- examination reveals multiple contradictions. She admitted that she did not disclose the name of the hotel to the investigating officer. She also admitted that she had never shown any video to the police. Her testimony reveals that her relationship with the applicant was that of friendship, which later soured due to the applicant’s unwillingness to marry her. In such circumstances, the possibility of emotional distress leading to exaggeration of allegations cannot be entirely ruled out at this stage. 11. The Hon’ble Supreme Court in Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, reiterated that the seriousness of an offence alone is not a sufficient ground to deny bail, and that courts must assess the likelihood of the accused absconding, influencing witnesses, or tampering with evidence. 12. In Sanjay Chandra v. CBI (2012) 1 SCC 40, the Court warned against pre-trial punishment through protracted incarceration and emphasised the principle of presumption of innocence. 13. Moreover, in the present case, during the investigation, neither the specific hotel nor any entry register corroborating their presence therein was identified or recovered. Likewise, no such video was recovered from the applicant, although it formed a central piece of the state’s theory of coercion. 14. It is also not disputed that the victim was not recovered in the company of the applicant. In her testimony before the learned trial court as PW-1, the victim admitted to having been with a friend named 4 2025:UHC:2921 Sujeet at the relevant time when the missing report was lodged. She further acknowledged that she was in contact with the applicant and had expressed a desire to marry him. Her testimony discloses that the applicant’s reluctance to reciprocate such intention may have contributed to the emotional context from which the complaint evolved. 15. In Dataram Singh v. State of U.P., (2018) 3 SCC 22, it was further held that individual liberty must be balanced with societal interest, and that each bail application must be decided on the basis of its facts and surrounding circumstances. 16. In the case at hand, the applicant has been in custody since July 2023. The charge sheet has been filed, the major witnesses have been examined, and no material has been brought on record to suggest that the applicant attempted to tamper with evidence or influence witnesses during the trial. The trial is ongoing and will take time to conclude. The applicant is a young man with no criminal record and is a permanent resident of Dehradun. 17. Considering the contradictions in the testimonial evidence, the absence of corroborative medical or electronic proof, the lack of any hotel documentation, the completion of investigation, the applicant’s clean antecedents, and the advanced stage of trial, this Court finds it to be a fit case for exercise of discretion in favour of the applicant. 18. Let the applicant, Mohammad Hasan, be released on his furnishing a personal bond of ₹50,000/- with two sureties of the like amount to the satisfaction 5 2025:UHC:2921 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. 19. 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=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00E67B5283D205F18FE29BDF5D D9, cn=SHIKSHA BINJOLA Date: 2025.04.23 12:30:17 +05'30'