Isabella Mariam

The Uttarakhand High Court, Division Bench of Chief Justice G. Narendar and Justice Alok Mahra has suspended the conviction and sentence of a man accused of kidnapping and committing rape and aggravated penetrative sexual assault on a minor, after the victim herself urged the Court to suspend his sentence and grant bail. The Bench found the trial court’s decision unsupported by any credible evidence and described it as a case of “no evidence.” Noting the absence of proof regarding the place of offence or any forensic link to the accused, the Court held the conviction under Section 5 of the POCSO Act unsustainable.

The case arose from allegations that the appellant, a resident of Village Jakhol, District Uttarkashi, had kidnapped and sexually assaulted a minor girl. According to the complaint lodged by the victim’s father, the girl left home at 10:00 p.m. on 01.01.2022 stating that she was going to her grandfather’s house but did not reach there. Villagers later informed that the accused had visited the village in his car, leading to suspicion that the victim had accompanied him. Based on this, Crime No. 01/2022 was registered and investigation commenced. On 23.01.2022, the victim was found with the accused near Arakot Bazar Bridge, and he was arrested the same day. The victim was medically examined, and her date of birth was confirmed through school records. A charge sheet was filed on 25.02.2022 under Sections 363 and 376(2)(n) of the Indian Penal Code and Section 5(l) of the POCSO Act.

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During trial, the prosecution relied primarily on the victim’s testimony, her medical report, and forensic evidence. The victim, however, turned hostile and denied any wrongdoing by the accused. The medical officer testified that there were no signs of injury or forceful sexual assault, and the forensic report only indicated traces of human semen on the victim’s innerwear without identifying it as belonging to the accused. The defence contended that the prosecution failed to establish the location or occurrence of the alleged offence. The appellant sought bail pending appeal, submitting that he had been wrongly convicted and that the trial court’s findings lacked evidentiary support.

The matter came before the Division Bench along with connected writ petitions. The victim appeared in person and pleaded with the Court to consider the bail application favourably, stating her precarious circumstances and continued hardship following her husband’s incarceration.

The Court recorded that the victim “fervently pleaded to the Court to positively consider the bail application of the appellant/applicant.” It observed that the prosecution’s case lacked any evidence identifying the place of occurrence or linking the accused to the alleged act. The Bench stated, “This is not a case of insufficient evidence, but a case of no evidence at all.”

The judgment noted that although the trial court treated the victim’s statement under Section 164 CrPC as material, “the statement of the victim, said to be recorded under Section 164 CrPC, is not an exhibit… we find it strange that the Trial Court has placed reliance on the same.” The Bench further observed, “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 found it fit to infer that her statement during the trial and subsequent cross-examination do not contradict the statement recorded under Section 164 CrPC.”

Regarding medical and forensic findings, the Court cited the testimony of the examining doctor who stated that “there was no sign of injury anywhere on her body or private parts… no swelling, bruises or cuts… and there were no signs of forceful sexual assault.” It also observed that the forensic report only detected “traces of human semen… [but] there is no finding by the FSL that the traces of semen found… is that of the appellant/applicant.”

The Bench critically recorded, “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.” It concluded that the conviction was “unsustainable” and that the trial court had erred in presuming guilt without establishing foundational facts or corroborative evidence.

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The Division Bench ordered: “We are of the opinion that the appellant/applicant has made out a case for grant of bail. Accordingly IA No. 01/2024 filed in CRLA No. 100/2024 is allowed.” The Court directed that “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 executing a personal bond for a sum of Rs. 10,000.” Considering the counsel’s submission that the appellant was virtually an orphan and eking out his livelihood as a driver, the Bench ordered that “the appellant/applicant shall be released on deposit of a sum of Rs. 10,000 in terms of Section 445 of the CrPC.”

Advocates Representing the Parties

For the Appellant: Mr. Priyanshu Gairola, Advocate; Ms. Manisha Bhandari, Party-in Person with Mr. Shashwat Sidhant and Ms. Ishita Dhaila, Advocates.
For the Respondent(s): Mr. J.S. Virk, Deputy Advocate General with Sri Rakesh Joshi, Brief Holder for the State of Uttarakhand; Sri Siddhartha Bankoti and Ms. Divya Jain, Advocates

Case Title: Rampal v. State of Uttarakhand
Case Number: Criminal Appeal No. 100 of 2024
Bench: Chief Justice G. Narendar and Justice Alok Mahra