Point of Law : POCSO – Grant of Bail - victim had not disclosed the factum of sexual assault on her by the petitioner, in her initial version to the police. The successive statements of the victim have not remained consistent in material particulars.

ORDER :

Petitioner is an accused in case FIR No. 50/2021, dated 07.10.2022, registered at Police Station Shillai, District Sirmour, H.P., under Sections 341,354,323,376, 506 of IPC, Section 7 of POCSO Act & Section 3(1) (w)(i) of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities Act ).

2. Petitioner has approached this Court for the grant of bail under Section 439 of the Code of Criminal Procedure in the above noted case, on the ground that petitioner belongs to a respectable family. He use to work for gain at Solan, however, on account of Covid conditions and consequent lockdown petitioner had returned to his native village. As per the petitioner, the allegations levelled by the prosecutrix are false. It is further contended on behalf of the petitioner that there is no past criminal history attributable to him. Petitioner belongs to a respectable family and is a permanent resident of village Bali and Post Office Bali Koti, Tehsil Shillai, District Sirmour, H.P. There is no likelihood of his fleeing from the course of justice and he will abide by all the conditions as may be imposed against him.

3. In response, status report was filed by the respondent on 28.01.2022. A fresh status report has been filed by the respondent on 25.02.2022, detailing therein the subsequent completion of investigation and submission of supplementary challan. As per status report, on 07.10.2021, the victim lodged a complaint with the police that she was beaten up by the petitioner and her modesty was also outraged. It was further alleged that the petitioner on earlier occasion also used to blackmail the victim. On 07.10.2021, petitioner again had asked the victim to visit his room and on her refusal she was illtreated and harassed as above. On 09.10.2021, statement of victim under Section 164 of Cr.P.C. was recorded and on such basis Section 3(1) (w)(i) of Schedule Caste and Scheduled Tribe (Prevention of Atrocities Act ) was added. The investigation was handed over to Dy. S.P. Paonta Sahib. On 11.10.2021, the victim was again associated in investigation and her statement was recorded, wherein she alleged having been sexually exploited by the petitioner since June 2020. During investigation, the date of birth of the victim was ascertained as 21.08.2002. On scientific analysis of evidence, nothing substantial was found incriminating against the petitioner. The data collected from the mobile phone of the petitioner did not contain any obscene picture or video relating to the victim. Challan is stated to have been presented in the Court.

4. I have heard learned counsel for the petitioner and also learned Additional Advocate General for the respondent/State and have also gone through the contents of the status report as well as the record of the investigation.

5. The date of birth of the victim is stated to be 21.08.2002 and as such she attained majority on 21.08.2020. The allegations of sexual assault on victim by the petitioner is alleged to have taken in June, 2020 for the first time with various repetitions thereafter. This fact is coming forth only from the statement of the victim, which is yet to be proved in accordance with the law. The victim had not disclosed the factum of sexual assault on her by the petitioner, in her initial version to the police. The successive statements of the victim have not remained consistent in material particulars. The fact that victim had not disclosed the factum of sexual assault on her by the petitioner before 11.10.2021 is a factor to be taken into consideration at this stage.

6. The petitioner was arrested on 17.10.2021. On 18.10.2021, he was remanded to police custody till 21.10.2021 and thereafter is in judicial custody till date. The allegations against the petitioner are yet to be proved. Petitioner, in the given facts of the case, can not be allowed to remain in custody for indefinite period as the trial of the case is likely to take sometime before conclusion. Pretrial incarceration can not be orde