Uttarakhand High Court

Appellant/ vs State Of Uttarakhand on 30 October, 2025

     IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL
        HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
                           AND
         HON'BLE SRI JUSTICE SUBHASH UPADHYAY
                        30TH OCTOBER, 2025
                 IA No. 02/2024 (Bail Application)
                                         in
           CRIMINAL APPEAL No. 666 OF 2024

Hryadesh alias Guddu.
                                                     ...Appellant/ Applicant

                                       Versus

State of Uttarakhand.
                                                                ...Respondent
Counsel for     the   appellant/   :    Mr. Harshit Sanwal, learned counsel.
applicant.

Counsel for     the   State   of   :    Sri J.S. Virk, learned Deputy Advocate
Uttarakhand.                            General with Sri Rakesh Joshi, learned
                                        Brief Holder for the State of Uttarakhand.

ORDER :

(per Hon'ble The Chief Justice Sri G. Narendar)

Heard Mr. Harishit Sanwal, learned counsel for

the appellant/ applicant and Mr. J.S. Virk, learned Deputy

Advocate General for the State of Uttarakhand.

2. The is one more case of extreme prevarication

by the victim. The statements of the victim are filled with

serious embellishments & contradictions. The statement

of the victim has been recorded under Section 164 of

CrPC before the Judicial Magistrate/ Civil Judge, Kashipur

on 03.01.2020, i.e. clear three months after their brief sojourn and travel from Kashipur to Moradabad to

Gorakhpur. The statement reads as under:

"Statement Under Section 164 Cr.P.C.

Today in the aforementioned matter the investigating officer Beena Papola Has come with the victim. The investigating officer has duly identified the victim. The investigating officer is sent out. The statement of the victim under section 164 are being taken as under.

Name- Victim, Father name- Victims father, Age- 16 years, studying in class 12th, Resident- (victims' addresses) while asking the victim she has disclosed her name and address as per CD recite 5th Chik FIR.

On asking the victim she stated that of her own violation she will give her true statement. The statement of victim is;

On 31st August at 2 o'clock at night I went to Moradabad with Hryadesh. Hryadesh studies at my school. I love Hryadesh. Uncle found out in April. He beat me excessively. We had stopped talking. One day my aunty told me that he has phone. I refused however my uncle beat me with the belt. I swore on my father then he left me. Then Hryadesh wrote me a letter. I told him that I was beaten up badly. I do not want to stay here. Then Hryadesh said alright, then he took me to uncle's house in Gorakhpur. There we stayed together for 20-25 days. We used to hide and stay. His mother father used to call uncle frequently that if he found out we should tell them. Then on 11th they had called to ask whether there was some information about us or not then uncle did not say anything. Then uncle told us that you talk at home. On talking at home everybody asked us to return home fast and everything will be fine. Then on the same night we sat in the train. Then Hryadesh's father and uncle came to take us then on 13th evening we reached here. Then he went home, I went to my home. We both stayed as husband and wife. We had established physical relationship. I went of my own choice. Hryadesh did not force me in any manner. I want to study. My father is dead I stay with my uncle.

Heard and verified Signed Victim."

3. We have further perused the statement of

P.W.-1 - the victim before the Court, and in paragraph

no. 6, she has deposed that she had recorded her

statement with the police. On a query, the learned

Deputy Advocate General would submit that the

statement recorded by the IO is not available on record.

In the cross-examination, it has been elicited that she

had voluntarily left the house at 02:00 A.M. on

31.08.2019; that she had taken a bag of clothes,

indicating that she was leaving her home; and it is

further elicited that she sat on the motorcycle facing one

sided, and then she reached Moradabad Railway Station,

and proceeded to board the train to Gorakhpur. The

statement elicited does not anywhere indicate that she

was restrained and forcibly taken. One leg of the

journey, up to Moradabad, is as a pillion rider, and the

rider is the appellant/ applicant. It is not the case of the

victim that she was tied down, or she was restrained in

any other manner, or that she was threatened by the

appellant/ applicant. The second leg of the journey

apparently is a public transport, i.e. a train. Yet again, it

is not the case of the victim that she was restrained by

force or threats, and despite being amongst the public, if

she was being taken against her will, she could have

easily alerted the public.

4. In this background, prima facie, the conviction

of the appellant/ applicant under Sections 363 and 366

IPC does not appear to be well-founded. Perversity in the

appreciation of evidence appears to be writ large.

Section 361 IPC, which deals with kidnapping from lawful

guardianship, reads as under:

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound

mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

5. Section 366 IPC reads as under :

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

6. In the examination-in-chief recorded on

27.08.2021, and the cross-examination recorded on

03.09.2021, and the statement under Section 164 CrPC

recorded on 03.01.2020, and the answers elicited therein,

prima facie do not reveal the ingredients required to

constitute an offence of kidnapping from unlawful

guardianship, or an offence punishable under Section 366

IPC. In fact, in the statement, it is uniformly submitted

by the victim that she used to be followed by the

appellant/ applicant, as they were studying in the same

school, and in this regard her parents/ guardian had

complained to the Principal, and the appellant/ applicant

was severely punished. It has also come out in the

statement, recorded under Section 164 CrPC, that she

was badly assaulted by her uncle with a belt, and that is

the reason she wanted to leave home, and that her father

had died about eight years ago, and hence she was under

the guardianship of her uncle. It is surprising to note, as

to why the statement of assault has not been taken

cognizance of by the courts.

7. That apart, we have perused the statement and

cross-examination of P.W.-4 - the Principal. In paragraph

no. 2, the P.W.-4 has deposed that the victim was

admitted to school into Class 7th in 2014. The probable

age of a student pursuing class seven, and if the

qualifying age for admission to 1st standard is six years,

then the victim would have been aged about 13 years or

so. That apart, we find that the age of the victim has not

been proved in accordance with Section 94 of the

Juvenile Justice (Care and Protection of Children) Act,

2015. The Principal i.e. P.W.-4 has admitted that the age

of the victim has been recorded in the Admission Register

on the basis of the Transfer Certificate issued by the

previous school. Transfer Certificate is not one of the

recognized documents under Section 94 of the Juvenile

Justice (Care and Protection of Children) Act, 2015. That

apart, the evidence on record would suggest that the

appellant/ applicant was also a student of the same

school, indicating that he was also a teenager, and the

admission of the victim in the statement recorded under

Section 164 CrPC, that they were in love is a probable

case. That apart, we find that there has been no site

plan of the place of occurrence, where the crime is

alleged to have been committed.

8. In that view, there being no proof or material

evidence to demonstrate the place of occurrence, and the

same being a major lacunae, and there being no

corroboration of even the journey said to have been

undertaken by the appellant/ applicant and the victim,

the judgment of conviction and sentence does not inspire

confidence in this Court. In the absence of specific

material, demonstrating the commission of an offence

under Section 5 of the POCSO Act of aggravated

penetrative sexual assault, the Trial Court, prima facie,

erred in handing out a conviction under Section 5 of the

POCSO Act, and sentencing the appellant/ applicant

under Section 6 of the POCSO Act. The Trial Court ought

to have appreciated the fact that the provisions of Section

6 of the POCSO Act stipulate a higher penalty for the

offence of penetrative sexual assault, than under Section

4, and hence the Trial Court ought to have given the

benefit of doubt to the appellant/ applicant. It is also a

matter of record that there is no medical report,

corroborating the accusations of rape, and neither has

the prosecution placed on record any reports of the

Forensic Science Laboratories demonstrating the charge

of rape. The perversity in the appreciation of evidence

appears writ large.

9. In that view of the matter, and the appellant

not being a habitual or repeat offender and having no

criminal antecedents, we deem it appropriate to grant the

relief, as prayed for. Accordingly IA No. 02/2024 filed in

CRLA No. 666/2024 is allowed. The judgment of

conviction and order of sentence passed by the Court of

Additional Sessions Judge/ FTSC, Rudrapur, Udham Singh

Nagar in Special Sessions Trial No. 240/2020 hereby

stands suspended. The appellant/ applicant shall be

forthwith set at liberty, if not wanted in any other case,

subject to the appellant/ applicant executing a personal

bond for a sum of Rs. 10000/- and furnishing one surety

of the like sum to the satisfaction of the jurisdictional

magistrate, where the appellant/ applicant is jailed.