Uttarakhand High Court
Mohd. Chand vs State Of Uttarakhand on 20 June, 2025
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.
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First Bail Application IA No. 01 of 2025 in Criminal Jail Appeal No. 49 of 2024-----Mohd. Chand vs State of
Uttarakhand
Ashish Naithani J.
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.
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First Bail Application IA No. 01 of 2025 in Criminal Jail Appeal No. 49 of 2024-----Mohd. Chand vs State of
Uttarakhand
Ashish Naithani J.
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 educational
certificates.
9. Considering the present case, it emerges that the central issue regarding
the prosecutrix's age is not free from doubt. The documents produced to
establish her minority, though, proved formally lack foundational
reliability in the absence of supporting evidence such as a birth certificate
issued contemporaneously or a medical ossification report. The
inconsistencies in names and entries in the admission register, combined
with the absence of parental testimony, further weaken the State's claim of
her being a minor. Despite its relevance, the trial court's rejection of the
ossification test application also casts a shadow on the conclusiveness of
the age determination. At the same time, the prosecutrix has repeatedly
stated that she accompanied the Appellant willingly and desired to marry
him. The possibility of consensual relations, though not a legal defence
under POCSO, if the minority is proven, assumes relevance where the
minority itself is in doubt.
10. It is an undisputed position that the Appellant has already undergone
over four years of incarceration, which is a substantial portion of the ten-
year sentence awarded to him. There is no allegation that the Appellant
misused his liberty earlier or attempted to tamper with evidence or
influence witnesses. The appeal is not likely to be heard in the near future.
In such circumstances, continuing the applicant's detention during the
pendency of the appeal would amount to prejudging the merits and
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Ashish Naithani J.
rendering the appeal itself infructuous, particularly when a significant part
of the sentence has already been served.
ORDER
In view of the above discussion, and without entering into the
merits of the case, this Court is of the considered opinion that it is a fit
case for suspension of sentence and grant of bail during the pendency of
the appeal.
Accordingly, the bail application is allowed. Let the Appellant
Mohd. Chand be released on bail during the pendency of Criminal Jail
Appeal No. 49 of 2024.
List this matter on 30.07.2025
(Ashish Naithani, J)
Dated:20.06.2025
NR
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First Bail Application IA No. 01 of 2025 in Criminal Jail Appeal No. 49 of 2024—–Mohd. Chand vs State of
Uttarakhand
Ashish Naithani J.