In sexual assault cases on minors, bail granted where victim's uncorroborated testimony lacks confidence due to witness contradictions, negative FSL report, and medical inconsistencies.

ORDER :

SUBHASH UPADHYAY, J.

Heard learned counsel for the appellant/applicant and learned Deputy Advocate General for the State.

2. Application (IA No.1 of 2025) has been filed by the appellant/applicant for grant of bail and suspension of sentence.

3. Learned counsel for the appellant/applicant submits that the entire case of the prosecution is based on the evidence of the victim (PW1), who at the time of the incident was of 8 years.

4. As per the prosecution story, about 3-4 days prior to the date of FIR i.e. 16.06.2021, the victim had gone to a neighbourhood grocery shop owned by the accused/appellant wherein she was subjected to sexual assault by the accused and, thereafter, she went home. Further, as per the case of the victim, she developed abdominal pain after 6 days and the incident was explained to her aunty/grandmother and subsequently to her father, who lodged this complaint. On the basis of the complaint dated 16.06.2021, FIR was registered against the appellant/applicant under Section 376 (3) IPC and Section 5 /6 of the POCSO Act and the appellant/applicant has been convicted under the said sections.

5. Learned counsel for the appellant/applicant submits that the grocery shop of the appellant/applicant is situated just opposite to the house of the victim. As per the victim when she went to the shop then 3-4 persons were also present at the shop; that, there are different versions by the prosecution’s witnesses, as the father of the victim (PW3) stated that he had asked the victim to bring cigarette and thereafter, the victim did not come back and went to the home of her aunty/grandmother (PW4) and returned there after six days. As per PW4, the victim did not stay with her as she was not at home and had gone to her relative. While as per the victim, she had returned to home after the incident. Moreover, the victim’s vaginal swabs and smear slides were sent to the FSL and no blood sample of the accused was obtained and sent for the FSL examination.

6. She further submits that PW2, who examined the victim, stated that the bleeding from the victim’s vagina was fresh though the victim had stated that the incident occurred six days ago. She further submits that the medical report did not record any definite opinion of the rape and it was stated that a definite opinion can only be given after the FSL report. The FSL report reveals that there is no semen or blood detected on the vaginal swabs and smear slides of the victim and the said finding is in contradiction to the medical observation of fresh bleeding from victim’s vagina.

7. Learned counsel for the appellant also refers to the various contradictions in the statement of the victim. Learned counsel for the appellant submits that the appellant is the only earning member in the family, who is 65 years of age and he is suffering from various ailments and is in custody for the last more than four and half years. He further submits that the appellant has no criminal history and as the prosecution’s case is based on the statement of victim which does not inspire confidence as such the appellant/applicant is entitled for bail.

8. We have heard the learned counsel for the parties and are of the considered opinion that the medical report does not give any opinion of rape and rather refers that definite opinion can be given after receipt of the FSL report. The FSL report does not support the prosecution’s story and the entire conviction is based on the statement of victim.

9. We have also perused the statement and the cross-examination of the victim and are of the, prima f