Uttarakhand High Court

Satish --Applicant/ vs State Of Uttarakhand on 2 August, 2025

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

  THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR

                                AND

 THE HON'BLE JUSTICE MR. SUBHASH UPADHYAY

        Bail Application (CRMA No.534 of 2019)
            Misc. Application (IA/11050/2025)
                                IN
             Criminal Appeal No.107 of 2019


                       02nd August, 2025



   Satish                                   --Applicant/Appellant

                                Versus

   State of Uttarakhand                               --Respondent

   --------------------------------------------------------------
   Presence:-
   Ms. Prabha Naithani, learned counsel for the applicant/appellant.
   Mr. J. S. Virk, learned Deputy Advocate General along with Mr. Rakesh
   Joshi, learned Brief Holder for the State.
   --------------------------------------------------------------


   G. NARENDAR, C.J.


                                ORDER

               Heard        learned        counsel         for      the

   applicant/appellant       and     learned     Deputy      Advocate

   General for the State.

2. The applicant/appellant has preferred two

applications, CRMA No.534/2019 praying that he be

enlarged on bail and other application IA

No.11050/2025 is preferred praying to consider the

appellant as a juvenile and deal with the case in

accordance with The Juvenile Justice (Care and

Protection of Children) Act, 2015 (for short, "The

Juvenile Justice Act"). Along with the said application,

no material in the form of evidence, evidencing the age

and demonstrating him to be a minor on the date of

incident is placed. A copy of the arrest memo alone,

wherein he has disclosed his age as 16 at the time of

arrest, is placed.

3. It is relevant to note that Section 94 of The

Juvenile Justice Act deals with determination of age in

the event the person in conflict with law is presumed to

be a child. Sub-section (2) of Section 94 of the Act

mandates that the Committee or the Board, as the case

may, shall undertake the process of age determination

and the material stipulated under the Act is -- (i) the

date of birth certificate from the school, or the

matriculation or equivalent certificate from the

concerned examination Board, if available; and in the

absence thereof; (ii) the birth certificate given by a

corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age

shall be determined by an ossification test or any other

latest medical age determination test conducted on the

orders of the Committee or the Board. It further

mandates that the age determination test shall be

completed within 15 days.

4. In the instant case, despite the disclosure by

the appellant, the police have placed reliance on an

alleged certificate said to have been issued by the Head

Master of a Government Primary School to contend that

the appellant was a major on the date of commission of

crime. It is pertinent to note that neither the certificate

is marked as an exhibit nor the authority, i.e the Head

Master, who is alleged to have issued the certificate, is

examined as a witness in the above case.

5. It is even more unfortunate that the trial

court has not even made an attempt to assess the

physical appearance of the appellant despite the arrest

memo recording the age as 16. It was incumbent on

the trial court to have made a preliminary assessment

and ought to have directed for determination of age or

ought to have directed the prosecution to place cogent

material to demonstrate the age of the accused.

6. Apart from the above aspects, what shocks

us is the punishment that has been imposed on the

appellant. The statement of the victim would prima

facie absolve the appellant of any wrongdoing. In her

statement recorded on 21.04.2018, in her answers to

the questions posed by the court, she has stated as

under:-

"Question : What happened then?

Answer : Then one boy named Satish caught my hand and the other boy Satish covered my mouth and the third boy named Bhola was misbehaving with me.

Question : What misbehave did he do?

Answer : Both the boy Bhola and Satish were putting in the thing with which they pee in the place from where I pee."

7. In the cross-examination, the victim identifies

the accused as Bhola who is known to her and Satish

S/o Kehari and that both of them live in the same

village. In the further cross-examination, she has

answered as below:-

"Question : Who all had done bad thing with you?

Answer : It was Bhola, son of Haridari, and Satish, son of Kehari had done bad things with me and no one else had done bag thing with me. No bad thing was done with me by Satish, son of

Tirathbhan.

Question : Had Satish, son of Tirathbhan extended threat to kill you?

Answer : No.

To Court - First you told that 'all the three put the things with which they pee in the place from where you pee".

Answer : Yes. I had told about Chhote Satish.

Cross-Examination by ADGC

Question : In the statement which had earlier been recorded, you had also told that Satish has done bad thing with you.

Answer : Shook head in negative.

Question :Have you made a settlement with Satish, son of Tirathbhan?

Answer : No. I have not made any settlement. He is asking for settlement.

It is incorrect to say that we have made a settlement with Satish. Due to this reason, I am not telling truth today.

It is also incorrect to say that Satish, son of Tirathbhan had extended threat to kill me.

It is also incorrect to say that Satish, son of Tirathbhan attempted to bad things with me."

8. From the above, it is apparent that the victim

has admitted that the accused did not commit any

sexual assault and she has clarified that it is the other

Satish or Chotte Satish s/o Kehari and not Satish S/o

Tirathbhan, who attempted to do the bad thing and

that he only held her hand.

9. Despite the categorical statement and

admission by the victim, the trial court has deemed it

fit to convict the accused for the offence of penetrative

sexual assault.

10. The allegations even if taken as true, prima

facie, do not appear to bear the ingredients to

constitute the offence of penetrative sexual assault.

The allegations, in a nutshell, are that the appellant

held her hand and the other Chhote Satish held her

legs and the other accused Bhola attempted to

penetrate the private parts. This, our prima facie

opinion, finds support from the medical examination of

the victim, which reveals there was no swelling or tear

on the labia major or minor. There was no bleeding on

the fourchette. The medical examination also records

that the perineum and hymen were intact. There was

no swelling, nor the victim complained of any pain. The

final opinion pursuant to medical examination is that no

conclusive opinion regarding sexual assault can be

given.

11. The trial court, in our opinion, has failed to

appreciate the distinction between the offence as

defined u/s 3 of POCSO Act, 2012 i.e. penetrative

sexual assault and the offence as defined u/s 7 of

POCSO Act, 2012 i.e. sexual assault. Even as per the

victim, an attempt was made but there is no conclusive

opinion of penetration. In the absence of conclusive

evidence, evidencing the penetration of the private

parts, the trial court appears to have misled itself in

applying the provisions of Section 4 of the POCSO Act,

2012.

12. The allegations, prima facie, even if taken as

true would constitute the offence of sexual assault as

defined u/s 7 of POCSO Act, 2012 and the punishment

prescribed u/s 8 of POCSO Act, 2012, which mandates

that it shall not be less than 3 years and may extend to

5 years.

13. Section 3 and 4 of POCSO Act 2012 read as

under:-

"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into

the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

4. Punishment for penetrative sexual assault.-- [(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine.

[(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.]"

From a reading of the above, it is seen that the provision lays emphasis on "insertion" or penetration of the male organ into feminine reproductive organ or other parts of the body detailed therein.

14. Section 7 and 8 of POCSO Act, 2012 read as under:-

"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child

or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

8. Punishment for sexual assault.--Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."

From a reading of the above, it is seen that the provision requires a mere touch of the different parts of the body and requires no "insertion" or penetration of the male organ for commission of the offence defined above.

15. Section 3 of POCSO Act, 2012 is an

aggravated form of sexual assault and the Act

prescribes a higher term of imprisonment which shall

not be less than 10 years but which may extend to

imprisonment for life.

16. A co-ordinate bench of this Court in the case

of Arshad @ Ashad Khan vs. State of Uttarakhand,

while deciding the bail application in Criminal Appeal

No.313 of 2023, on 14.05.2025, observed as under:-

"11. In the absence of assignment of cogent reason for discarding the material evidence favouring the accused the appreciation of evidence is prima facie rendered perverse. That apart, as stated by the learned counsel, the narration

of the victim would show that they were always in a public place or in a public transport and there being no description of the place where the incident occurred, i.e., the incident of penetrative sexual assault, the evidence or statement of the victim ought to have been taken with a pinch of salt and the benefit of doubt ought to have been extended to the accused. The arguments canvassed by the learned counsel for the appellant-applicant merit consideration in our opinion. It is neither the case of the prosecution nor the case of the victim that the assault was carried out in full public view or in any particular place. The absence of a place or of a site of incident assumes significance as it is well known that acts of intimacy, much less acts which amount to a penetrative sexual assault, would not be carried out in any public place or in public glare by any sane thinking people. It has also not come out in the statement that the victim made any attempt to seek help or alert anybody. We are of the prima facie view that such an action would have been a conditioned reaction and more particularly, in view of the fact that there is no mention of any seclusion of the accused and the victim in any private place and definitely any attempt to act in such a perverted manner in a public place would have been resisted the version of the victim prima facie appears suspect. Be that as it may, the medical evidence suggests of an intact hymen and does not disclose any injuries also. That apart, the forensic evidence also rules out commission of any penetrative sexual assault. In that view of the matter, at the most even accepting the admission of the victim being true that the accused touched her private part, the same would constitute an offence only under Section 7 of the POCSO Act, 2012, which defines sexual assault, and entails punishment for imprisonment of either description for a term which shall not be less than three years but which may extend to five years along with fine."

17. The trial court, in our prima facie opinion,

failed to appreciate the evidence in the proper

perspective and appears to have misled itself into

presuming the commission of an aggravated form of

the offence.

18. That apart, the trial court, in our opinion, has

failed to go into and consider the issue of juvenility of

the accused, which it was required to go into and

adjudicate at the initial stage itself. The failure to

adjudicate the issue of juvenility, in our, prima facie,

opinion appears to have caused a miscarriage of

justice, which will be considered later while deciding