High Court

2. Heard Sri Om Narayan Mishra, learned counsel for the applicant, Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

3. This bail application under Section 483 BNSS has been filed by the applicant- Sunil Nishad, seeking enlargement on bail during trial in connection with Case Crime No.104 of 2025, under Sections 70(1), 123 B.N.S., registered at P.S.Maharajpur, District Kanpur Nagar.

4. The FIR of the matter was lodged on 15.3.2025 by the victim against Arun @ Chakka, Bhola and Durlabh @ Golu alleging therein that on 14.3.2025 at about 6 p.m. when she was going to her maternal house along with her husband and son of her landlord, on the way they met them who gave liquor to her husband and son of her landlord, who consumed and later on the accused persons gave her cold-drink mixed with liquor which was consumed by her and then she was taken to the wheat field by the said accused persons where they committed rape upon her. Report be lodged and action be taken.

5. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted while placing para 8 of the affidavit that the applicant is not named in the FIR and only three persons have been named therein. It is further submitted that the FIR has been lodged after 8 hours of the incident. The name of the applicant has surfaced in the present matter in the statement of the victim under Section 180 B.N.S.S wherein apart from the three accused persons, the applicant and one Bajigar are also named as accused and they are stated to have committed rape along with three named accused persons. Subsequently, the victim in her statement u/s 183 BNSS states that the friends of her husband met them who took her in the wheat field and committed rape upon her and she does not know the name of the five accused persons, as such naming of the applicant by the victim under Section 180 of BNSS is false and incorrect. Even otherwise the medical examination of the victim does not show any injury either on her body or on her private part. It is further argued that investigation in the matter has concluded and charge sheet has been submitted, para 30 of the affidavit in support of bail application has been placed before the Court. It is further submitted while placing para 17 of the affidavit that in the FIR three accused names have been nominated except the name of the applicant in the statement under Section 180 BNSS, the prosecutrix developed story and clearly taken five names accused while in her statement under Section 183 BNSS she stated 3-4 accused persons met her but she did not know their names while in her earlier statement recorded under Section 180 BNSS five accused persons disclosed by her and as such the version of the prosecutrix is inconsistent. It is submitted that co-accused Bajigar @ Rahul Kumar is also not named in the FIR, has been granted bail by this Court vide order dated 09.07.2025 passed in Crl. Misc. Bail Application No. 23638 of 2025 (Bajigar @ Rahul Kumar Vs. State of U.P.), copy of the order is annexed as annexure 5 to the affidavit. It has also been pointed out that the applicant is not having any criminal history as stated in para 38 of the affidavit. The applicant is in jail since 15.3.2025.

6. Per contra learned counsel for the State opposed the prayer for bail but could not dispute the fact that co-accused Bajigar @ Rahul Kumar who is also not named in the FIR, has been granted bail by this Court.

7. After hearing the counsel for the parties and perusing the record, it is evident that the applicant is not named in the FIR. His name has surfaced in the matter for the first time in the statement of the victim recorded under Section 180 B.N.S.S. Subsequently, in the statement of the victim recorded under Section 183 B.N.S.S., she states of five accused persons committing rape upon her but she states that she does not know their names. Co-accused Bajigar @ Rahul Kumar is also not named in the FIR, has been granted bail by this Court. Investigation in the matter has concluded and a charge sheet has been submitted.

8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

9. Let the applicant Sunil Nishad, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that she/he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure her/him presence proclamation under section 84 BNSS, 2023 may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her/him, in accordance with law, under section 209 BNS, 2023. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 351 BNSS, 2023. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against her/him in accordance with law and the trial court may proceed against her/him under Section 269 BNS, 2023. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

11. The bail application is allowed.

12. Pending application(s), if any, shall stand disposed of. Order Date :- 28.7.2025 M. ARIF (Samit Gopal, J.)

2. Heard Sri Om Narayan Mishra, learned counsel for the applicant, Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

3. This bail application under Section 483 BNSS has been filed by the applicant- Sunil Nishad, seeking enlargement on bail during trial in connection with Case Crime No.104 of 2025, under Sections 70(1), 123 B.N.S., registered at P.S.Maharajpur, District Kanpur Nagar.

4. The FIR of the matter was lodged on 15.3.2025 by the victim against Arun @ Chakka, Bhola and Durlabh @ Golu alleging therein that on 14.3.2025 at about 6 p.m. when she was going to her maternal house along with her husband and son of her landlord, on the way they met them who gave liquor to her husband and son of her landlord, who consumed and later on the accused persons gave her cold-drink mixed with liquor which was consumed by her and then she was taken to the wheat field by the said accused persons where they committed rape upon her. Report be lodged and action be taken.

5. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted while placing para 8 of the affidavit that the applicant is not named in the FIR and only three persons have been named therein. It is further submitted that the FIR has been lodged after 8 hours of the incident. The name of the applicant has surfaced in the present matter in the statement of the victim under Section 180 B.N.S.S wherein apart from the three accused persons, the applicant and one Bajigar are also named as accused and they are stated to have committed rape along with three named accused persons. Subsequently, the victim in her statement u/s 183 BNSS states that the friends of her husband met them who took her in the wheat field and committed rape upon her and she does not know the name of the five accused persons, as such naming of the applicant by the victim under Section 180 of BNSS is false and incorrect. Even otherwise the medical examination of the victim does not show any injury either on her body or on her private part. It is further argued that investigation in the matter has concluded and charge sheet has been submitted, para 30 of the affidavit in support of bail application has been placed before the Court. It is further submitted while placing para 17 of the affidavit that in the FIR three accused names have been nominated except the name of the applicant in the statement under Section 180 BNSS, the prosecutrix developed story and clearly taken five names accused while in her statement under Section 183 BNSS she stated 3-4 accused persons met her but she did not know their names while in her earlier statement recorded under Section 180 BNSS five accused persons disclosed by her and as such the version of the prosecutrix is inconsistent. It is submitted that co-accused Bajigar @ Rahul Kumar is also not named in the FIR, has been granted bail by this Court vide order dated 09.07.2025 passed in Crl. Misc. Bail Application No. 23638 of 2025 (Bajigar @ Rahul Kumar Vs. State of U.P.), copy of the order is annexed as annexure 5 to the affidavit. It has also been pointed out that the applicant is not having any criminal history as stated in para 38 of the affidavit. The applicant is in jail since 15.3.2025.

6. Per contra learned counsel for the State opposed the prayer for bail but could not dispute the fact that co-accused Bajigar @ Rahul Kumar who is also not named in the FIR, has been granted bail by this Court.

7. After hearing the counsel for the parties and perusing the record, it is evident that the applicant is not named in the FIR. His name has surfaced in the matter for the first time in the statement of the victim recorded under Section 180 B.N.S.S. Subsequently, in the statement of the victim recorded under Section 183 B.N.S.S., she states of five accused persons committing rape upon her but she states that she does not know their names. Co-accused Bajigar @ Rahul Kumar is also not named in the FIR, has been granted bail by this Court. Investigation in the matter has concluded and a charge sheet has been submitted.

8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

9. Let the applicant Sunil Nishad, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that she/he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure her/him presence proclamation under section 84 BNSS, 2023 may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her/him, in accordance with law, under section 209 BNS, 2023. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 351 BNSS, 2023. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against her/him in accordance with law and the trial court may proceed against her/him under Section 269 BNS, 2023. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

11. The bail application is allowed.

12. Pending application(s), if any, shall stand disposed of. Order Date :- 28.7.2025 M. ARIF (Samit Gopal, J.)