Evidence To Demonstrate Penetrative Sexual Assault Absent: Uttarakhand High Court Grants Bail To POCSO Accused

The victim pleaded before the High Court to positively consider the bail application of the appellant/ applicant. The victim, working as a housemaid claimed that she was undergoing trauma on account of the application of the law and judgment of conviction of her husband by the Trial Court.

The Division Bench of Chief Justice G. Narendar and Justice Alok Mahra held, “In the absence of critical evidence relating to the place of commission of offence, or any forensic evidence linking the accused to the crime, we find the judgment of conviction more than shocking, and that too a judgment of conviction under Section 5 of the POCSO Act. Section 5 details person or manner of commission of the crime of aggravated penetrative sexual assault. Prima facie, the finding of guilt, under Section 5(l), in the absence of any evidence to even demonstrate penetrative sexual assault, is unsustainable.”

Advocate Priyanshu Gairola represented the Appellant, while Deputy Advocate General J.S. Virk represented the Respondent.

Factual Background

It was the case of the complainant, i.e. the victim’s father, that the victim had left the house, stating that she would be going to her grandfather’s house. It was alleged that she went missing, and it was suspected that the victim had absconded with the appellant/ applicant.

The jurisdictional police registered a case and commenced an investigation. The victim was found in the company of the accused, and the appellant/ applicant was arrested. The victim was medically examined by the Investigating Officer and the victim’s date of birth was affirmed on the basis of a birth certificate obtained from the school. A charge-sheet then came to be filed charging the appellant/ applicant for offences punishable under Sections 363 & 376(2)(n) of the IPC, and Section 5(l) of the POCSO Act.

Reasoning

On a perusal of the facts of the circumstances of the case, the Bench stated, “This is not a case of insufficient evidence, but a case of no evidence at all. The dates recorded above would show that the victim was missing between 10.01.2022 and 23.01.2022, and the victim was found in the company of the appellant/ applicant and detained near Arakot Bazar Bridge. A reading of the impugned judgment does not record any proof, having been let in, demonstrating place of residence, be it in the form of a residential house, or a hotel accommodation. In short, prima facie, there appears to be no evidence, as to where the crime was committed.”

It was further noticed that the victim turned hostile and denied any wrongdoing on the part of the appellant/ applicant. “Though, the victim has been subjected to detailed cross-examination, nothing incriminating against the appellant has been elicited. Despite the statement, not being marked as an exhibit, and not being made part of the record, we find it strange that the Trial Court has placed reliance on the same”, it added.

Reference was made to the opinion of the medical expert, who recorded that there was no sign of injury anywhere on her body or private parts, there were no injury marks, no swelling, bruises or cuts on or around the genitals. The doctor examining the victim had opined that there were no signs of any forceful sexual assault. “Even more surprising is the finding of the FSL, that has recorded an opinion, that traces of “human semen” are found on the Exhibit-3, i.e. the innerwear of the victim. There is no finding by the FSL that the traces of semen found on Exhibit-3 (FSL Report) is that of the appellant/ applicant”, it noted.

The Bench found that the impugned judgment disclosed that the Trial Court had not recorded the place of occurrence or commission of the crime. The medical examination did not disclose the commission of sexual assault, and even the forensic evidence did not categorically state that the semen found on Exhibit was that of the accused.

“In the absence of critical evidence relating to the place of commission of offence, or any forensic evidence linking the accused to the crime, we find the judgment of conviction more than shocking, and that too a judgment of conviction under Section 5 of the POCSO Act. Section 5 details person or manner of commission of the crime of aggravated penetrative sexual assault. Prima facie, the finding of guilt, under Section 5(l), in the absence of any evidence to even demonstrate penetrative sexual assault, is unsustainable”, it held.

Thus, suspending the judgment of conviction and order of sentence passed by the Court of Special Sessions Judge, the Bench granted bail to the appellant. “The judgment of conviction and order of sentence passed by the Court of Special Sessions Judge, Uttarkashi in Special Sessions Trial No. 15/2022 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”, it ordered.

Cause Title: Rampal v. State of Uttarakhand (Criminal Appeal No.:100 of 2024)

Appearance

Appellant: Priyanshu Gairola, Petitioner-in-person, Advocates Shashwat Sidhant, Ishita Dhaila

Respondent: Deputy Advocate General J.S. Virk, Brief Holder Rakesh Joshi, Advocates Siddhartha Bankoti, Divya Jain

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