Significant discrepancy between FIR and court testimony regarding nature of sexual assault warrants grant of bail.

The applicant, a 65-year-old man, sought regular bail after being arrested on June 11, 2025, in connection with Crime No. 211/2025.

The complainant (22-year-old niece) alleged that while she was sleeping at her paternal aunt’s house on the night of May 13, 2025, the applicant touched her private parts and threatened her.

An FIR was lodged on May 18, 2025, four days after the incident.

The applicant contended that the case arose from a family dispute and noted that while the initial FIR alleged penetrative sexual assault, the complainant’s testimony (PW1) before the trial court described an attempt to outrage modesty rather than a completed act of rape.

The applicant had been in judicial custody since his arrest.

1. Whether the applicant is entitled to bail under Section 483 of the BNSS, 2023/Section 439 of the Cr.P.C. given the discrepancies in the complainant’s evidence and the delay in FIR registration.

2. Whether the continued incarceration of the 65-year-old applicant is necessary considering the progress of the trial and his lack of criminal antecedents.

The court primarily applied Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (corresponding to Section 439 of the Cr.P.C.) regarding the discretionary power of the High Court to grant bail.

The substantive charges were governed by the Bharatiya Nyaya Sanhita (BNS), 2023, specifically Section 64 (rape), Section 64(2)(f) (rape by a relative), Section 74 (assault/criminal force to woman with intent to outrage modesty), and Section 75 (sexual harassment).

The court also highlighted the importance of Section 346 of the BNSS (formerly Section 309 of the Cr.P.C.) regarding the continuous examination of witnesses during trial.

The court observed that the complainant (PW1) had already been examined and that her testimony significantly deviated from the original FIR, categorizing the act as an "attempt" rather than a full offence under Section 64 of the BNS.

The court found the four-day delay in lodging the FIR and the fact that several family members were sleeping in the same room at the time of the alleged incident as factors that weakened the prosecution's immediate case for continued detention.

Furthermore, the court noted that the State admitted the applicant had no prior criminal record.

Given the applicant's age (65 years) and his social ties, the court reasoned there was no significant risk of him fleeing from justice, committing further offences (recidivism), or tampering with the remaining evidence.

The Court ordered the release of Ishwarlal upon furnishing a personal bond of Rs. 50,000/- with one surety of the same amount.

The release was made subject to several conditions, including regular attendance at trial, a prohibition against committing similar offences, and a strict mandate not to induce or threaten witnesses.

The court clarified that these observations were limited to the bail application and would not affect the merits of the ongoing trial.