IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Bail Application IA No.01 of 2025 in Criminal Jail Appeal No. 49 of 2024 Mohd. Chand ... Appellant Versus State of Uttarakhand ...Respondent Presence Mr. Siddharth Bankoti, learned Legal Aid Counsel for the Applicant/appellant.

Mr. Rakesh Negi, learned Brief Holder, for the State of Uttarakhand.

Hon’ble Ashish Naithani, J (Oral)

1. The present bail application has been filed under Section 389 of the Code of Criminal Procedure, 1973, seeking suspension of sentence and enlargement on bail during the pendency of Criminal Jail Appeal No. 49 of 2024. The appeal arises from the judgment and order dated 04.07.2024 passed by the learned Special Sessions Judge (POCSO), Champawat, in Special Sessions Trial No. 22 of 2020, whereby the Appellant, Mohd. Chand, was convicted for the offences under Section 376 of the Indian Penal Code and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo rigorous imprisonment for ten years along with a fine of ₹50,000/-, and in default, to undergo further simple imprisonment for one year.

2. The present case is that on 22.01.2020, the prosecutrix, a girl stated to be a minor at the time, went missing from her residence in Tanakpur, District Champawat. A missing report was lodged by her maternal grandfather, which led to the registration of FIR No. 06 of 2020 under Section 365 IPC.

During investigation, the prosecutrix was recovered from Jamnagar, Gujarat, and the present Appellant was arrested and later charge-sheeted under Sections 366A and 376 IPC and Sections 3/4 of the POCSO Act. Upon trial, the Appellant was acquitted of the charge under Section 366A IPC but convicted for rape and penetrative sexual assault on the minor.

3. Heard Mr. Siddharth Bankati, learned counsel for the Applicant (Legal Aid) and, Mr. Rakesh Negi, learned Brief Holder for the State.

4. Learned counsel for the Appellant, Mr. Siddharth Bankati, contended that the conviction suffers from significant infirmities and that the age of the prosecutrix was never conclusively established. It is pointed out that various documents relied upon to prove the victim's minority, namely the school admission register and high school certificate, were unaccompanied by admission forms or corroborative documentary evidence to prove the authenticity of the date of birth.

5. The complainant himself, who is the maternal grandfather of the prosecutrix, admitted in court that he was illiterate and unaware of the exact date of birth of the girl. The inconsistency between the school records and entries in the family register indicated that the prosecutrix may have been born in 1999, rendering her a major at the time of the alleged incident were emphasized. No ossification test was conducted despite an application having been filed, and the State or the trial court has given no explanation for not permitting the same.

6. Additionally, it has been argued that the statement of the prosecutrix under Section 164 CrPC and her deposition before the trial court clearly reflect that she had voluntarily accompanied the Appellant, and that their relationship was consensual in nature. Though the element of consent loses legal significance under POCSO if a minority is established, in the present case, the uncertainty surrounding the prosecutrix's age calls for a deeper scrutiny, which can only be undertaken at the stage of the final hearing.

7. It is also submitted that the Appellant has been in judicial custody continuously since 06.02.2020, having served more than four years and four months, which is nearly half of the sentence imposed.

8. On the other hand, the State opposed the bail plea on the ground that the conviction is based on cogent evidence and the prosecutrix was below 18 years of age, as per school documents. It is contended that the trial court has rightly relied upon the prosecution's evidence, and the victim's age is established beyond a reasonable doubt through her ed