BA1/2410/2024
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Uttarakhand High Court

BA1/2410/2024 on 4 June, 2025

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                                 BA1 No. 2410 of 2024
                                 Hon'ble Alok Mahra, J.

Mr. B.S. Negi, learned counsel for the applicant.

2. Mr. Akshay Latwal, learned A.G.A. for the State.

3. The applicant - Kuldeep Singh, who is in judicial custody in connection with FIR/Case Crime No. 0002 of 2024, under Sections 376AB of IPC and Sections 5(l)/6, 5(m)/6 and 5(n)/6 of Protection of Children from Sexual Offences Act, 2012 registered at P.S.- Tharali, District Chamoli, has sought his release on bail.

4. Heard learned counsel for the parties and perused the records.

5. FIR was lodged on 05.01.2024 under Sections 376AB of IPC and Sections 5(l)/6, 5(m)/6 and 5(n)/6 of Protection of Children from Sexual Offences Act, 2012. In the FIR, allegations have been levelled against the applicant that when the victim was residing with the maternal aunt (Bua), then, the applicant, who is the son of her aunt, did physical intercourse with her. The date, time and year of the incident were not mentioned in the FIR and statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C. were recorded by the Investigating Officer and Magistrate concerned. In her statement also, she has reiterated the facts, which have been narrated in the complaint. Victim was medically examined and as per the medical report, the doctor who examined her, have given an opinion that no definite opinion regarding sexual assault can be given.

6. Learned counsel for the applicant submits that the vague allegations have been levelled against the applicant and even if the FIR is taken on its face value, even then, the incident relates to more than 10 years back. No reasons have been mentioned in the FIR or in the statement of the victims that what was the reason for not filing complaint at the time when the alleged incident took place. Even in the counter affidavit, learned State Counsel have submitted that the victim had died on 06.04.2024 and her statement were not recorded before the trial court.

7. Learned counsel for the applicant has relied upon a judgment passed by Hon'ble Apex Court in the case of R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC 266, wherein, Hon'ble Apex Court has held that a statement recorded under Section 164 Cr.P.C. can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. But, since the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.

8. Learned counsel has further relied upon a judgment passed by Hon'ble Apex Court in the case of Somasundaram @ Somu Vs. State, reported in (2020) 7 SCC 722. Paragraph 84 of the judgment is extracted hereinbelow:-

"84. Thus, in a case where a witness, in his statement under Section 164 Cr.P.C., makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section

164."

9. Per contra, learned State Counsel submits that victim has supported the prosecution story and there is no contradiction in the FIR and statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C.

10. Having considered the submissions, under the facts and circumstances of the case and keeping in view the fact that the prosecution story is not supported by the medical report and also the fact that the victim was not examined as a prosecution witness and she had died, therefore, the defence had no opportunity to cross-examine her and thus, her statement recorded under Section 164 Cr.P.C. cannot be relied upon, this Court is of the view that it is a case fit for bail and the applicant deserves to be enlarged on bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant be released on bail on his executing a personal bond and furnishing two reliable sureties each of the like amount, to the satisfaction of the court concerned.

(Alok Mahra J.) 04.06.2025 Ujjwal