BA1/1945/2024 of PRABHASH VISHWAS Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

THE HON’BLE SRI JUSTICE ASHISH NAITHANI

FIRST BAIL APPLICATION NO. 1945 of 2024

Prabhash Vishwas

State of Uttarakhand

…Applicant

Versus

…Respondent

Counsel for the Applicant :

Mr. D.N. Sharma, learned counsel.

Counsel for the State Hon’ble Ashish Naithani, J.

: Ms. Manisha Rana Singh, learned D.A.G.

This is an application seeking regular bail under Section 439 of the Code of Criminal Procedure in connection with FIR No. 0268 of 2023, registered at Police Station Sitarganj, District Udham Singh Nagar, under Sections 323, 504, and 376(3) IPC and Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012. The applicant, Prabhash Vishwas, aged 26 years, has been in judicial custody since 05.09.2023.

2. According to the FIR lodged by the complainant, the father of the victim, the applicant, who lives in the same locality, had been harassing his 13-year-old daughter for several days, grabbing her hand on multiple occasions, editing and posting photographs of her on social media, and insisting that he would marry her. The situation allegedly escalated on 04.09.2023, when the complainant and his wife confronted the applicant, who not only refused to take

down the images but allegedly assaulted them.

3. Subsequently, the charge sheet was filed on 04.11.2023 under more serious provisions, including Section 376(3) IPC and Section 3/4(2) of the POCSO Act. The learned court below rejected the applicant’s bail application by order dated 09.09.2024.

4. Heard the learned counsels for the parties and perused the records.

5. Learned counsel for the applicant contends that the allegations in the FIR are not only delayed but exaggerated and motivated by local enmity. It is argued that no photograph of the victim has been recovered, and there is no forensic or digital evidence linking the applicant to the alleged acts. It is further submitted that there is no medical evidence corroborating the allegation of rape, and that the medical report is inconclusive. The applicant denies ever having committed any sexual offence and asserts that he has been falsely implicated out of personal vendetta.

6. It is also pointed out that the victim’s statements under Sections 161 and 164 CrPC contain inconsistencies. The applicant submits that he is daily-wage labourer and the sole breadwinner for his family, and that continued incarceration is causing undue hardship. It is emphasized that the applicant has no previous criminal antecedents and undertakes not to tamper with evidence or influence any witness.

7. On the other hand, learned A.G.A. for the State opposed the bail application and submitted that

the offences alleged are of grave nature and concern minor child aged only 13 years. It is contended that the victim has consistently named the applicant during investigation and in her statement recorded under Section 164 CrPC. The State submits that these statements are credible and sufficient to sustain the charges, and the Court should be circumspect in disbelieving survivor’s account at the bail stage, especially in case governed by the POCSO Act.

8. The State also points out that under Section 29 of the Protection of Children from Sexual Offences Act, 2012, there exists presumption of guilt once the foundational facts are established, and the burden to rebut lies with the accused during trial. It is further argued that the absence of forensic report at this stage is not fatal to the prosecution case, as the medical examination was conducted, and the delay in forensic reporting is systemic. Moreover, the gravity of the act, coupled with the social media misuse allegations—though still under verification—enhances the seriousness of the alleged conduct.

9. It is urged that the addition of Section 376(3) IPC at the stage of charge sheet should not be viewed with suspicion, as victims, particularly minor girls, may reveal traumatic experiences gradually. The State submits that enlarging the applicant on bail at this juncture, when the trial is still ongoing, may not only affect witness confidence but also expose the minor victim to distress or risk of re-victimization, especially since the applicant resides in the same neighborhood.

10. This Court has carefully perused the records

and heard the submissions advanced by learned counsel for the parties. The FIR, lodged by the father of the victim, initially narrated instances of harassment, threats, and assault, but did not include any allegation of rape.

11. The more serious accusation under Section 376(3) IPC appears to have been introduced only at the stage of the charge sheet. While the age of the victim is not disputed and the Court is conscious of the heightened sensitivity required in cases involving children, the evidentiary foundation supporting the gravest charge must withstand preliminary scrutiny, even at the bail stage.

12. The medical report placed on record states “hymen absent old healed”. Hence, it does not conclusively establish recent penetrative assault. Additionally, no electronic evidence has been recovered to substantiate the claims regarding edited images or social media postings. Moreover, the trial court has already recorded the depositions of the complainant, the victim, and two other prosecution witnesses.

13. While the Court does not, at this stage, assess the truth of the allegation or the reliability of the victim's testimony in full, it must be noted that in Pankaj v. State of Rajasthan, (2021) 4 SCC 310, the Hon’ble Supreme Court reiterated that the mere framing of charges under POCSO does not ipso facto foreclose consideration of bail. Similarly, in Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the Court emphasized that pre-trial incarceration should not be permitted to turn punitive, particularly when the

material on record does not inspire compelling prima facie confidence.

14. Additionally, in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Hon’ble Supreme Court issued cautionary guidelines against routine arrest and incarceration, especially where the investigation does not reveal urgent necessity or flight risk. The applicant herein has no prior criminal record, has remained in custody since 05.09.2023, and has not been accused of violating any custodial restraint.

15. The Court is conscious that the nature of allegations involves minor, and hence cannot be lightly brushed aside. However, the State's case, as presently presented, rests on delayed allegations, lacks forensic corroboration, and has evolved in stages. The statements of the victim, though serious, must be weighed with the overall material — which at this stage appears deficient in establishing seamless chain pointing toward the applicant's culpability under Section 376(3) IPC.

16. Let the applicant, Prabhash Vishwas, be released on bail on furnishing personal bond with two sureties of the like amount, to the satisfaction of the court concerned. The applicant shall not tamper with the evidence, shall not influence any witness, and shall appear before the trial court on each date fixed. In case of breach of any of the above conditions, the State shall be at liberty to move for cancellation of bail.

17. Accordingly, the bail application is allowed.

18. It is clarified that the observations made herein are confined to the adjudication of this bail application and shall not be construed as an expression of opinion on the merits of the case. The learned Trial Court shall proceed uninfluenced by any findings recorded herein.

___________________

ASHISH NAITHANI, J.

Dt: 15.04.2025 SBSHIKSHA BINJOLADigitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.23 18:35:26 +05'30'