Uttarakhand High Court
Satish –Applicant/ vs State Of Uttarakhand on 2 August, 2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR
AND
THE HON'BLE JUSTICE MR. SUBHASH UPADHYAY
Bail Application (CRMA No.534 of 2019)
Misc. Application (IA/11050/2025)
IN
Criminal Appeal No.107 of 2019
02nd August, 2025
Satish --Applicant/Appellant
Versus
State of Uttarakhand --Respondent
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Presence:-
Ms. Prabha Naithani, learned counsel for the applicant/appellant.
Mr. J. S. Virk, learned Deputy Advocate General along with Mr. Rakesh
Joshi, learned Brief Holder for the State.
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G. NARENDAR, C.J.
ORDER
Heard learned counsel for the applicant/appellant and learned Deputy Advocate General for the State.
2. The applicant/appellant has preferred two
applications, CRMA No.534/2019 praying that he be
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enlarged on bail and other application IA
No.11050/2025 is preferred praying to consider the
appellant as a juvenile and deal with the case in
accordance with The Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short, “The
Juvenile Justice Act“). Along with the said application,
no material in the form of evidence, evidencing the age
and demonstrating him to be a minor on the date of
incident is placed. A copy of the arrest memo alone,
wherein he has disclosed his age as 16 at the time of
arrest, is placed.
3. It is relevant to note that Section 94 of The
Juvenile Justice Act deals with determination of age in
the event the person in conflict with law is presumed to
be a child. Sub-section (2) of Section 94 of the Act
mandates that the Committee or the Board, as the case
may, shall undertake the process of age determination
and the material stipulated under the Act is — (i) the
date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof; (ii) the birth certificate given by a
corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
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shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board. It further
mandates that the age determination test shall be
completed within 15 days.
4. In the instant case, despite the disclosure by
the appellant, the police have placed reliance on an
alleged certificate said to have been issued by the Head
Master of a Government Primary School to contend that
the appellant was a major on the date of commission of
crime. It is pertinent to note that neither the certificate
is marked as an exhibit nor the authority, i.e the Head
Master, who is alleged to have issued the certificate, is
examined as a witness in the above case.
5. It is even more unfortunate that the trial
court has not even made an attempt to assess the
physical appearance of the appellant despite the arrest
memo recording the age as 16. It was incumbent on
the trial court to have made a preliminary assessment
and ought to have directed for determination of age or
ought to have directed the prosecution to place cogent
material to demonstrate the age of the accused.
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6. Apart from the above aspects, what shocks
us is the punishment that has been imposed on the
appellant. The statement of the victim would prima
facie absolve the appellant of any wrongdoing. In her
statement recorded on 21.04.2018, in her answers to
the questions posed by the court, she has stated as
under:-
“Question : What happened then?
Answer : Then one boy named Satish caught
my hand and the other boy Satish covered my
mouth and the third boy named Bhola was
misbehaving with me.
Question : What misbehave did he do?
Answer : Both the boy Bhola and Satish were
putting in the thing with which they pee in the
place from where I pee.”
7. In the cross-examination, the victim identifies
the accused as Bhola who is known to her and Satish
S/o Kehari and that both of them live in the same
village. In the further cross-examination, she has
answered as below:-
“Question : Who all had done bad thing with
you?
Answer : It was Bhola, son of Haridari, and
Satish, son of Kehari had done bad things with
me and no one else had done bag thing with me.
No bad thing was done with me by Satish, son of4
Tirathbhan.
Question : Had Satish, son of Tirathbhan
extended threat to kill you?
Answer : No.
To Court – First you told that ‘all the three put
the things with which they pee in the place from
where you pee”.
Answer : Yes. I had told about Chhote Satish.
Cross-Examination by ADGC
Question : In the statement which had earlier
been recorded, you had also told that Satish has
done bad thing with you.
Answer : Shook head in negative.
Question :Have you made a settlement with
Satish, son of Tirathbhan?
Answer : No. I have not made any settlement.
He is asking for settlement.
It is incorrect to say that we have made a
settlement with Satish. Due to this reason, I am
not telling truth today.
It is also incorrect to say that Satish, son of
Tirathbhan had extended threat to kill me.
It is also incorrect to say that Satish, son of
Tirathbhan attempted to bad things with me.”
8. From the above, it is apparent that the victim
has admitted that the accused did not commit any
sexual assault and she has clarified that it is the other
Satish or Chotte Satish s/o Kehari and not Satish S/o
Tirathbhan, who attempted to do the bad thing and
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that he only held her hand.
9. Despite the categorical statement and
admission by the victim, the trial court has deemed it
fit to convict the accused for the offence of penetrative
sexual assault.
10. The allegations even if taken as true, prima
facie, do not appear to bear the ingredients to
constitute the offence of penetrative sexual assault.
The allegations, in a nutshell, are that the appellant
held her hand and the other Chhote Satish held her
legs and the other accused Bhola attempted to
penetrate the private parts. This, our prima facie
opinion, finds support from the medical examination of
the victim, which reveals there was no swelling or tear
on the labia major or minor. There was no bleeding on
the fourchette. The medical examination also records
that the perineum and hymen were intact. There was
no swelling, nor the victim complained of any pain. The
final opinion pursuant to medical examination is that no
conclusive opinion regarding sexual assault can be
given.
11. The trial court, in our opinion, has failed to
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appreciate the distinction between the offence as
defined u/s 3 of POCSO Act, 2012 i.e. penetrative
sexual assault and the offence as defined u/s 7 of
POCSO Act, 2012 i.e. sexual assault. Even as per the
victim, an attempt was made but there is no conclusive
opinion of penetration. In the absence of conclusive
evidence, evidencing the penetration of the private
parts, the trial court appears to have misled itself in
applying the provisions of Section 4 of the POCSO Act,
2012.
12. The allegations, prima facie, even if taken as
true would constitute the offence of sexual assault as
defined u/s 7 of POCSO Act, 2012 and the punishment
prescribed u/s 8 of POCSO Act, 2012, which mandates
that it shall not be less than 3 years and may extend to
5 years.
13. Section 3 and 4 of POCSO Act 2012 read as
under:-
“3. Penetrative sexual assault.–A person is said
to commit “penetrative sexual assault” if–
(a) he penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of
a child or makes the child to do so with
him or any other person; or
(b) he inserts, to any extent, any object or a
part of the body, not being the penis, into7
the vagina, the urethra or anus of the
child or makes the child to do so with him
or any other person; or
(c) he manipulates any part of the body of
the child so as to cause penetration into
the vagina, urethra, anus or any part of
body of the child or makes the child to do
so with him or any other person; or
(d) he applies his mouth to the penis, vagina,
anus, urethra of the child or makes the
child to do so to such person or any other
person.
4. Punishment for penetrative sexual assault.–
[(1)] Whoever commits penetrative sexual assault
shall be punished with imprisonment of either
description for a term which shall not be less than
[ten years] but which may extend to imprisonment
for life, and shall also be liable to fine.
[(2) Whoever commits penetrative sexual assault
on a child below sixteen years of age shall be
punished with imprisonment for a term which shall
not be less than twenty years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of natural life of
that person and shall also be liable to fine.
(3) The fine imposed under sub-section (1) shall
be just and reasonable and paid to the victim to
meet the medical expenses and rehabilitation of
such victim.]”
From a reading of the above, it is seen that the provision
lays emphasis on “insertion” or penetration of the male
organ into feminine reproductive organ or other parts of
the body detailed therein.
“7. Sexual assault.–Whoever, with sexual intent
touches the vagina, penis, anus or breast of the child8
or makes the child touch the vagina, penis, anus or
breast of such person or any other person, or does
any other act with sexual intent which involves
physical contact without penetration is said to
commit sexual assault.
8. Punishment for sexual assault.–Whoever,
commits sexual assault, shall be punished with
imprisonment of either description for a term which
shall not be less than three years but which may
extend to five years, and shall also be liable to fine.”
From a reading of the above, it is seen that the provision
requires a mere touch of the different parts of the body
and requires no “insertion” or penetration of the male
organ for commission of the offence defined above.
15. Section 3 of POCSO Act, 2012 is an
aggravated form of sexual assault and the Act
prescribes a higher term of imprisonment which shall
not be less than 10 years but which may extend to
imprisonment for life.
16. A co-ordinate bench of this Court in the case
of Arshad @ Ashad Khan vs. State of Uttarakhand,
while deciding the bail application in Criminal Appeal
No.313 of 2023, on 14.05.2025, observed as under:-
“11. In the absence of assignment of cogent reason for
discarding the material evidence favouring the accused the
appreciation of evidence is prima facie rendered perverse.
That apart, as stated by the learned counsel, the narration9
of the victim would show that they were always in a public
place or in a public transport and there being no
description of the place where the incident occurred, i.e.,
the incident of penetrative sexual assault, the evidence or
statement of the victim ought to have been taken with a
pinch of salt and the benefit of doubt ought to have been
extended to the accused. The arguments canvassed by the
learned counsel for the appellant-applicant merit
consideration in our opinion. It is neither the case of the
prosecution nor the case of the victim that the assault was
carried out in full public view or in any particular place. The
absence of a place or of a site of incident assumes
significance as it is well known that acts of intimacy, much
less acts which amount to a penetrative sexual assault,
would not be carried out in any public place or in public
glare by any sane thinking people. It has also not come out
in the statement that the victim made any attempt to seek
help or alert anybody. We are of the prima facie view that
such an action would have been a conditioned reaction and
more particularly, in view of the fact that there is no
mention of any seclusion of the accused and the victim in
any private place and definitely any attempt to act in such
a perverted manner in a public place would have been
resisted the version of the victim prima facie appears
suspect. Be that as it may, the medical evidence suggests
of an intact hymen and does not disclose any injuries also.
That apart, the forensic evidence also rules out commission
of any penetrative sexual assault. In that view of the
matter, at the most even accepting the admission of the
victim being true that the accused touched her private
part, the same would constitute an offence only under
Section 7 of the POCSO Act, 2012, which defines sexual
assault, and entails punishment for imprisonment of either
description for a term which shall not be less than three
years but which may extend to five years along with fine.”
17. The trial court, in our prima facie opinion,
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failed to appreciate the evidence in the proper
perspective and appears to have misled itself into
presuming the commission of an aggravated form of
the offence.
18. That apart, the trial court, in our opinion, has
failed to go into and consider the issue of juvenility of
the accused, which it was required to go into and
adjudicate at the initial stage itself. The failure to
adjudicate the issue of juvenility, in our, prima facie,
opinion appears to have caused a miscarriage of
justice, which will be considered later while deciding
the other application.
19. According to the provisions of Section 8 of
POCSO Act, 2012, the maximum punishment that can
be imposed is 5 years and the appellant has been
undergoing incarceration from April, 2018 i.e. more
than 7 years.
20. In that view, the bail application
(CRMA/534/2019) is allowed. Accordingly, the
sentenced imposed under the judgment and order
dated 15/16.02.2019 in Special Sessions Trial No.71 of
2018 by the Court of Additional Sessions Judge/Special
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Judge (POCSO), Haridwar hereby stands suspended.
The appellant/applicant is directed to be enlarged on
bail forthwith, if not required in any other case, subject
to appellant furnishing a bond for a sum of ₹20,000/-
and furnishing one surety for the like sum to the
satisfaction of the concerned Magistrate.
21. List for hearing in due course.
(G. NARENDAR, C.J.)
(SUBHASH UPADHYAY, J.)
Dated: 02.08.2025
R/SS
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