Sitara vs State Of Uttarakhand
2025 Latest Caselaw 2898 UK

Uttarakhand High Court

Sitara vs State Of Uttarakhand on 12 June, 2025

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


     THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR
                                 AND
          THE HON'BLE JUSTICE MR. ALOK MAHRA

              Bail Application (IA No. 1 of 2024)
                              IN
               Criminal Appeal No. 260 of 2024

                         12th June, 2025



   Sitara                                                --Appellant

                                  Versus

   State of Uttarakhand                                --Respondent

   ----------------------------------------------------------------------
   Presence:-
   Mr. Lalit Miglani, learned counsel for the appellant.
   Mr. J. S. Virk, learned Deputy Advocate General for the State.

   ----------------------------------------------------------------------


   G. NARENDAR, C.J.

                                 ORDER

               Heard         learned        counsel         for       the

   applicant/appellant        and     learned     Deputy      Advocate

   General for the State.

2. It is submitted that the appellant/applicant

was aged about 30 years and the alleged victim, the

boy, was aged between 16-17 years and the case of the

prosecution is that the appellant is said to have enticed

the victim and indulged in a sexual act and on the basis

of which, the mother of the victim is said to have

lodged a complaint and on the basis of the complaint,

the prosecution came to be initiated and appellant was

charged under Section 5(n) of POCSO Act on the

ground that the appellant is the daughter of the step-

mother of the victim's father. Whether at all, the case

would come under Section 5(n) is itself a preliminary

question that stares at this Court. That apart, Section 5

deals with aggravated penetrative assault. Section 5 of

POCSO Act reads as under:-

"5. Aggravated penetrative sexual assault.--

(a)Whoever, being a police officer, commits penetrative sexual assault on a child --(i)within the limits of the police station or premises at which he is appointed; or(ii)in the premises of any station house, whether or not situated in the police station, to which he is appointed;

or(iii)in the course of his duties or otherwise; or(iv)where he is known as, or identified as, a police officer; or

(b)whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child--(i)within the limits of the area to which the person is deployed; or(ii)in any areas under the command of the forces or armed forces; or(iii)in the course of his duties or otherwise; or(iv)where the said person is known or identified as a member of the security or armed forces; or

(c)whoever being a public servant commits penetrative sexual assault on a child; or

(d)whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or

(e)whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or

(f)whoever being on the management or staff of an educational

institution or religious institution, commits penetrative sexual assault on a child in that institution; or

(g)whoever commits gang penetrative sexual assault on a child. Explanation.-- When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or

(h)whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or

(i)whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j)whoever commits penetrative sexual assault on a child, which--

(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or

(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;

(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or

(k)whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or

(l)whoever commits penetrative sexual assault on the child more than once or repeatedly; or

(m)whoever commits penetrative sexual assault on a child below twelve years; or

(n)whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or

(o)whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or

(p)whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or

(q)whoever commits penetrative sexual assault on a child knowing the

child is pregnant; or

(r)whoever commits penetrative sexual assault on a child and attempts to murder the child; or

(s)whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or

(t)whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

(u)whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault."

3. To better appreciate the ingredients of the offence

defined under Section 5, it is pertinent to appreciate

the definition of penetrative sexual assault, as defined

under Section 3, which reads 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. Apparently, there is no eye-witness account to

demonstrate any of the ingredients as set out in Section

3, but, the fact remains that the appellant became

pregnant and bore a child.

5. From a reading of Section 3, it is clear that clause

(a), (b) and (d) refer to overt acts by the perpetrator

and clause (c) refers to an act, whereby, the

perpetrator manipulates or facilitates the body of the

child so as to cause penetration. That Section 3

predominantly deals with penetration of the male organ

into the vagina, mouth, urethra or anus of the victim or

vice-versa, that is, makes the child (victim) to commit

the act of penetration and punishment for penetrative

sexual assault is provided under Section 4.

6. Section 5 deals with commission of an offence of

penetrative sexual assault by a person, who, in a

fiduciary capacity or in a statutory capacity, has the

custody of the victim and who takes such advantage of

the custody either lawful or guardianship or being

relative through blood takes advantage of the

relationship to make the victim to commit the same.

The evidence on record, more particularly, the

statement of the alleged victim, prima facie, does not

disclose the crucial ingredients necessary to constitute

an offence under Section 3 i.e. "he ..............or makes

the child to do so with him".

7. On a perusal of the evidence, we have not found

any material, where it is alleged or which leads to a

conclusion that "the accused-appellant has caused or

made the victim child to act in the fashion". On the

other hand, the deposition of the victim would reveal

that the complaint was motivated as his family

members did not approve of the victim residing in the

house or both of them residing under the same roof. In

fact, the statement under Section 164 would reveal that

he is worldly-wise and mature enough to understand

the consequences of his action, which would enable this

Court to draw a prima facie inference that the accused

had little part or no requirement to entice or induce the

victim or to make the victim do the act "as required

under Section 3". That apart, it is submitted that the

appellant has delivered a child and both the child and

the appellant are in prison.

8. In that view of the matter, keeping the age of the

alleged perpetrator and alleged victim, who is mature

enough to accept the paternity of the child and also

make a statement before the Court denying any

coercion or any influence on the part of the appellant to

do or commit the acts, as defined under Section 2, we

are of the opinion that the appellant/applicant has

made out a case for grant of relief.

9. In that view, the bail application (IA No. 1 of

2024) is allowed. Accordingly, the operation of the

judgment and sentence imposed by the trial Court in

Special Sessions Trial No. 102 of 2022 dated

16.04.2024 stands suspended. The appellant/applicant

is directed to be released on bail forthwith, if not

required in any other case, subject to appellant

furnishing a bond for a sum of Rs.20,000/- (twenty

Thousand) only and one surety for a like sum to the

satisfaction of the jurisdictional Magistrate.

10. List in due course.

(G. NARENDAR, C.J.)

(ALOK MAHRA, J.) Dated: 12.06.2025 Ujjwal