Uttarakhand High Court
Hardas Singh vs State Of Uttarakhand on 11 March, 2025
2025:UHC:2006
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
FIRST BAIL APPLICATION No. 375 of 2023
Hardas Singh ......Applicant
Vs.
State of Uttarakhand .....Respondent
Mr. Ravi Bisht, learned counsel for the applicant.
Mr. S.C. Dumka, learned A.G.A. for the State of Uttarakhand.
Hon'ble Ashish Naithani, J (Oral)
The present bail application has been filed under Section
439 of the Code of Criminal Procedure, 1973, seeking regular bail for
the applicant, Hardas Singh, who has been charged under Sections 376
AB of the Indian Penal Code (IPC) and Sections 5/6 of the Protection of
Children from Sexual Offences (POCSO) Act, 2012, in connection with
Case Crime No. 05 of 2022, registered at Police Station Sitarganj,
District Udham Singh Nagar.
2. The case arises from an FIR lodged on 03.01.2022 by the
complainant, the father of the victim, alleging that the victim, aged
about 3 years, was playing on the terrace of her house when the
applicant, Hardas Singh, approached her and committed sexual
misconduct. The mother and grandmother of the victim allegedly caught
the applicant in the act, but the applicant managed to escape from the
scene. The FIR was registered under Section 376 AB of IPC and
Sections 5/6 of the POCSO Act.
3. Heard learned counsel for the Applicant, Mr. Ravi Bisht
and Mr. S.C. Dumka, learned A.G.A. for the State. Perused the record.
4. The learned counsel for the applicant submits that the
applicant has been falsely implicated due to personal enmity with the
complainant's family. It is contended that the victim, in her statement
recorded before the trial court as PW-1, has not specifically identified
the applicant as the accused. The father of the victim (PW-2), who was
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initially the complainant, has turned hostile and has not supported the
State's version.
5. There is no direct forensic evidence linking the applicant to
the alleged offence. The complainant's family members have submitted
affidavits stating that they did not witness any illicit act by the applicant.
The applicant belongs to a poor socio-economic background and has
been in custody for a prolonged period, with no prior criminal
record.The learned counsel for the State opposes the bail application,
arguing that the nature of the offence is heinous and that granting bail at
this stage would send a wrong message to society. It is contended that
the victim's statement under Section 164 Cr.P.C. supports the allegations
made in the FIR. The victim's medical examination report, though
inconclusive, cannot be the sole ground for granting bail. The accused, if
released on bail, may influence the remaining witnesses or attempt to
evade trial.
6. Upon perusing the case records, the charge sheet, and the
arguments presented, this Court finds that the victim, though a minor,
has not conclusively identified the applicant as the perpetrator in her
deposition before the trial court. The complainant, who is the victim's
father, has turned hostile and not supported the State's case, weakening
the foundation of the allegations.
7. This Court has allowed the bail application primarily due to
the inconsistencies in the State's case and the victim's lack of clear
identification of the applicant. The complainant, the victim's father, who
initially filed the FIR, has turned hostile.
8. Furthermore, the key testimonies from the victim's father
and grandmother, who were expected to support the prosecution's case,
have been inconsistent. The victim's father (PW-2) turned hostile and
failed to support the allegations during his deposition. Similarly, the
victim's grandmother also denied witnessing the alleged incident. This
creates a substantial gap in the chain of evidence, as the prosecution's
case heavily relies on the credibility of these witnesses.
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9. Additionally, the forensic and medical evidence presented
does not conclusively link the applicant to the alleged crime. No DNA
evidence or other material proof directly implicates the accused.
10. The present matter is of a three-year-old girl who is
subjected to sexual assault. A three-year-old may not be capable of
giving detailed verbal descriptions. If the child is responding with nods,
it is crucial that the questions are non-leading and do not suggest
answers. The Magistrate documents the gestures accurately (e.g., "The
child nodded affirmatively when asked whether "Perpetrator" touched
her"). The entire process should be video recorded as per Section 164
(5-A)(a) CrPC and Section 35 POCSO to preserve demeanor and
authenticity.
11. Without delving into the matter in detail, as it would affect
the merits of the case, at this juncture, when the victim is a girl-child of
a fragile age of three, and the eyewitnesses do not support the
prosecution's story, this Court, upon analyzing her statement, is of the
view that certain leading questions were put forth by the learned
Magistrate while recording it. There is no corroboration of any kind to
substantiate her account. This leaves an apprehension of her being
tutored.
12. Furthermore, the trial has progressed significantly, and the
risk of evidence tampering is minimal at this stage. The applicant's
prolonged incarceration and the absence of a prior criminal record also
weigh in favour of granting bail. Considering all these factors, this Court
is inclined to allow the bail application with the necessary conditions to
ensure the fair progress of the trial.
13. The Court relies on the landmark judgment in Arnesh
Kumar v. State of Bihar (2014) 8 SCC 273, wherein the Supreme Court
held that detention should not be used as a punitive measure before
conviction. The Court observed that arrest and custody should be based
on clear and credible evidence, not just on the seriousness of the
allegations.
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14. Considering the totality of the facts and circumstances of
the case, this Court is of the opinion that the applicant has made out a
prima facie case for the grant of bail. This order reaffirms that while the
allegations are grave, the evidentiary basis at present does not justify
continued detention.
15. Accordingly, the present bail application is allowed.
(Ashish Naithani, J.)
11.03.2025
SB
