High Court · 2025

3. Heard Ms. Naziya Nafees, learned counsel appearing on behalf of applicants Tahlu @ Nemchandra @ Rohit and Shailani, Sri Shashi Kant Pandey, learned counsel for the State and perused the material on record.

4. Notices were issued to the first informant/opposite party no.2 in both the aforesaid two bail applications vide orders dated 13.5.2024. As per office reports dated 19.7.2024 and 22.7.2024, the notices have been served on the first informant but no one is present on his behalf even when the matter has been taken up in the revised list.

5. The aforesaid two applications under Section 439 of Code of Criminal Procedure have been filed by the applicants-Tahlu @ Nemchandra @ Rohit and Shailani, seeking enlargement on bail during trial in connection with Case Crime No.75 of 2022, under Sections 376D, 342, 506 IPC and 5/6 POCSO Act, Police Station Shivli, District Kanpur Dehat.

6. The aforesaid two bail applications are the second bail applications. The first bail application of the applicant Tahlu @ Nemchandra @ Rohit was dismissed for want of prosecution vide order dated 27.9.2023 passed by this Court in Criminal Misc. Bail Application No.49253 of 2022. The first bail application of the applicant Shailani was also dismissed for want of prosecution vide order dated 27.9.2023 passed by this Court in Criminal Misc. Bail Application No.41935 of 2022.

7. In Criminal Misc. Bail Application No.41935 of 2022 which was the first bail application of applicant Shailani, a coordinate Bench of this Court vide order dated 6.4.2023 had directed the medical examination of the victim for conducting ossification test and had directed the report to be placed before the Court. The said order reads as under:- "Supplementary affidavit filed today is taken on record. Heard learned counsel for the applicant, learned counsel for the informant and learned A.G.A. for the State. It is contended by the learned counsel for the applicant-accused that as per the F.I.R., the age of the victim is stated to be 16 years, but no evidence has been brought on record to prove the age of the victim. It is further submitted that in the absence of determination of age of the victim, benefit of doubt will be given to the applicant-accused and no case under POCSO Act is made out. Learned counsel for the informant as well as learned A.G.A states that neither any school certificate/marksheet is on record, nor the ossification test of the victim has been conducted. Considering the aforesaid facts, this Court finds that in the interest of justice, a direction be issued to Chief Medical Officer, Kanpur Dehat to constitute a Medical Board to conduct ossification test of the victim. For this purpose, the Chief Medical Officer, Kanpur Dehat shall constitute a Medical Board within two weeks from today and after constituting the Board, he shall inform the date, time and place to the mother/father of the victim who shall produce the victim before the Board on the said date, time and place. The report of Medical Board may be placed before this Court on the next date. Learned A.G.A. is directed to communicate this order to Chief Medical Officer, Kanpur Dehat to ensure the compliance of the order. Registrar (Compliance) is also directed to ensure compliance of this order. List this case on 05.05.2023 in top ten cases."

8. Subsequently this Court passed an order on 27.2.2025 in the second bail application of applicant Shailani i.e. Criminal Misc. Bail Application No.43929 of 2023. The said order reads as under:- "1. List revised.

2. Ms. Naziya Nafees, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State are present and have been heard.

3. Learned counsel for the applicant submits that she has filed her memo of appearance in the matter on 21.02.2025 but the same is not on record.

4. Office to trace out the same and place it on record by the next date.

5. Office has placed the ossification report of the victim dated 27/31.12.2024 sent by C.M.O. Kanpur Dehat in a sealed cover, the same has been opened under the directions of the Court today in Court. The perusal of the said report goes to show that C.M.O., Kanpur Dehat has opined the age of the victim to be about 22 years.

6. The Registrar (Compliance) is directed to retain the photo copy of the report of C.M.O. Kanpur Dehat dated 27/31.12.2024 in the records of the present bail application and transmit the original to the District & Sessions Judge, Kanpur Dehat for placing the same in the file of the present case, which is Case Crime No. 75 of 2022, under Sections 376-D, 342, 506 I.P.C. & Section 5/6 POCSO Act, Police Station Shivli, District Kanpur Nagar, within a period of ten days from today. The records show that the case of the present matter is numbered as Sessions Trial No. 499 of 2022 (State vs. Shailani @ Ram Singh) pending before the Special Judge, POCSO, Court No. 13, Kanpur Dehat.

7. A report shall be sent to this Court by the concerned trial court regarding receipt of the said report within one week, thereafter.

8. Let the matter be listed on 26.03.2025. "

9. The FIR of the matter was lodged on 8.3.2022 by Ramji against the applicants, Bhura and Hariom alleging therein that his daughter is 16 years old minor girl. On 10.1.2022 at about 8 a.m. she was going to her college wherein the accused persons lying in wait pulled her in a hut and committed gang rape on her. They threatened her of not disclosing it to anyone or else they would murder her brother. Due to fear the victim did not tell it to anyone. When the victim became ill, she was taken to hospital and then the present FIR has been lodged.

10. Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is further argued that the victim in her statement under Section 161 Cr.P.C. states that the applicants met her and accused persons committed rape upon her and when on 19.2.2022 she became unwell, then she told her mother that the accused persons have committed rape upon her and she has pregnancy of two months. Even in the statement of the victim under Sections 164 Cr.P.C., she states about the same but slightly improves the prosecution case. It is submitted that the FIR of the matter has been lodged with an inordinate delay of about two months from the date of incident as the date of incident is 10.1.2022 but the FIR was lodged on 8.3.2022. Even from the version of the victim during investigation it appears that she told of the incident to her mother on 19.2.2022 but FIR has been lodged after about 20 days of the said disclosure for which there is no plausible explanation. It is submitted that as per ossification test, the victim is a major girl aged about 22 years. The applicants have no criminal history. The applicants are in jail since 10.3.2022.

11. Per contra learned counsel for the State opposed the prayer for bail and argued that the present case is a case of gang rape. The victim is a minor girl, as such the prayer for bail be rejected.

12. After hearing the counsel for the parties and perusing the record, it is evident that as per the report of ossification test, the victim is opined to be 22 years of age. She is thus major. The FIR has been lodged after about two months from the date of alleged incident and after about 20 days from the date of disclosure of the alleged incident to her mother. The applicants have no criminal history.

13. 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 applicants may be enlarged on bail.

14. Let the applicants-Tahlu @ Nemchandra @ Rohit and Shailani, be released on bail in the aforesaid case crime number on furnishing personal bonds 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C. (v) The applicants 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 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicants.

15. 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.

16. The bail application is allowed.

17. The office has not complied with the previous order dated 3.12.2024 and 8.1.2025 passed in Criminal Misc. Bail Application No.43929 of 2023. The office shall report as to whey the said order has not been complied with. The report shall be routed through Registrar General of this Court and place before the Court in the Chamber for perusal and appropriate orders. (Samit Gopal, J.) Order Date :- 24.4.2025 Gaurav Kuls GAURAV KULSHRESTHA GAURAV KULSHRESTHA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

3. Heard Ms. Naziya Nafees, learned counsel appearing on behalf of applicants Tahlu @ Nemchandra @ Rohit and Shailani, Sri Shashi Kant Pandey, learned counsel for the State and perused the material on record.

4. Notices were issued to the first informant/opposite party no.2 in both the aforesaid two bail applications vide orders dated 13.5.2024. As per office reports dated 19.7.2024 and 22.7.2024, the notices have been served on the first informant but no one is present on his behalf even when the matter has been taken up in the revised list.

5. The aforesaid two applications under Section 439 of Code of Criminal Procedure have been filed by the applicants-Tahlu @ Nemchandra @ Rohit and Shailani, seeking enlargement on bail during trial in connection with Case Crime No.75 of 2022, under Sections 376D, 342, 506 IPC and 5/6 POCSO Act, Police Station Shivli, District Kanpur Dehat.

6. The aforesaid two bail applications are the second bail applications. The first bail application of the applicant Tahlu @ Nemchandra @ Rohit was dismissed for want of prosecution vide order dated 27.9.2023 passed by this Court in Criminal Misc. Bail Application No.49253 of 2022. The first bail application of the applicant Shailani was also dismissed for want of prosecution vide order dated 27.9.2023 passed by this Court in Criminal Misc. Bail Application No.41935 of 2022.

7. In Criminal Misc. Bail Application No.41935 of 2022 which was the first bail application of applicant Shailani, a coordinate Bench of this Court vide order dated 6.4.2023 had directed the medical examination of the victim for conducting ossification test and had directed the report to be placed before the Court. The said order reads as under:- "Supplementary affidavit filed today is taken on record. Heard learned counsel for the applicant, learned counsel for the informant and learned A.G.A. for the State. It is contended by the learned counsel for the applicant-accused that as per the F.I.R., the age of the victim is stated to be 16 years, but no evidence has been brought on record to prove the age of the victim. It is further submitted that in the absence of determination of age of the victim, benefit of doubt will be given to the applicant-accused and no case under POCSO Act is made out. Learned counsel for the informant as well as learned A.G.A states that neither any school certificate/marksheet is on record, nor the ossification test of the victim has been conducted. Considering the aforesaid facts, this Court finds that in the interest of justice, a direction be issued to Chief Medical Officer, Kanpur Dehat to constitute a Medical Board to conduct ossification test of the victim. For this purpose, the Chief Medical Officer, Kanpur Dehat shall constitute a Medical Board within two weeks from today and after constituting the Board, he shall inform the date, time and place to the mother/father of the victim who shall produce the victim before the Board on the said date, time and place. The report of Medical Board may be placed before this Court on the next date. Learned A.G.A. is directed to communicate this order to Chief Medical Officer, Kanpur Dehat to ensure the compliance of the order. Registrar (Compliance) is also directed to ensure compliance of this order. List this case on 05.05.2023 in top ten cases."

8. Subsequently this Court passed an order on 27.2.2025 in the second bail application of applicant Shailani i.e. Criminal Misc. Bail Application No.43929 of 2023. The said order reads as under:- "1. List revised.

2. Ms. Naziya Nafees, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State are present and have been heard.

3. Learned counsel for the applicant submits that she has filed her memo of appearance in the matter on 21.02.2025 but the same is not on record.

4. Office to trace out the same and place it on record by the next date.

5. Office has placed the ossification report of the victim dated 27/31.12.2024 sent by C.M.O. Kanpur Dehat in a sealed cover, the same has been opened under the directions of the Court today in Court. The perusal of the said report goes to show that C.M.O., Kanpur Dehat has opined the age of the victim to be about 22 years.

6. The Registrar (Compliance) is directed to retain the photo copy of the report of C.M.O. Kanpur Dehat dated 27/31.12.2024 in the records of the present bail application and transmit the original to the District & Sessions Judge, Kanpur Dehat for placing the same in the file of the present case, which is Case Crime No. 75 of 2022, under Sections 376-D, 342, 506 I.P.C. & Section 5/6 POCSO Act, Police Station Shivli, District Kanpur Nagar, within a period of ten days from today. The records show that the case of the present matter is numbered as Sessions Trial No. 499 of 2022 (State vs. Shailani @ Ram Singh) pending before the Special Judge, POCSO, Court No. 13, Kanpur Dehat.

7. A report shall be sent to this Court by the concerned trial court regarding receipt of the said report within one week, thereafter.

8. Let the matter be listed on 26.03.2025. "

9. The FIR of the matter was lodged on 8.3.2022 by Ramji against the applicants, Bhura and Hariom alleging therein that his daughter is 16 years old minor girl. On 10.1.2022 at about 8 a.m. she was going to her college wherein the accused persons lying in wait pulled her in a hut and committed gang rape on her. They threatened her of not disclosing it to anyone or else they would murder her brother. Due to fear the victim did not tell it to anyone. When the victim became ill, she was taken to hospital and then the present FIR has been lodged.

10. Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is further argued that the victim in her statement under Section 161 Cr.P.C. states that the applicants met her and accused persons committed rape upon her and when on 19.2.2022 she became unwell, then she told her mother that the accused persons have committed rape upon her and she has pregnancy of two months. Even in the statement of the victim under Sections 164 Cr.P.C., she states about the same but slightly improves the prosecution case. It is submitted that the FIR of the matter has been lodged with an inordinate delay of about two months from the date of incident as the date of incident is 10.1.2022 but the FIR was lodged on 8.3.2022. Even from the version of the victim during investigation it appears that she told of the incident to her mother on 19.2.2022 but FIR has been lodged after about 20 days of the said disclosure for which there is no plausible explanation. It is submitted that as per ossification test, the victim is a major girl aged about 22 years. The applicants have no criminal history. The applicants are in jail since 10.3.2022.

11. Per contra learned counsel for the State opposed the prayer for bail and argued that the present case is a case of gang rape. The victim is a minor girl, as such the prayer for bail be rejected.

12. After hearing the counsel for the parties and perusing the record, it is evident that as per the report of ossification test, the victim is opined to be 22 years of age. She is thus major. The FIR has been lodged after about two months from the date of alleged incident and after about 20 days from the date of disclosure of the alleged incident to her mother. The applicants have no criminal history.

13. 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 applicants may be enlarged on bail.

14. Let the applicants-Tahlu @ Nemchandra @ Rohit and Shailani, be released on bail in the aforesaid case crime number on furnishing personal bonds 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C. (v) The applicants 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 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicants.

15. 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.

16. The bail application is allowed.

17. The office has not complied with the previous order dated 3.12.2024 and 8.1.2025 passed in Criminal Misc. Bail Application No.43929 of 2023. The office shall report as to whey the said order has not been complied with. The report shall be routed through Registrar General of this Court and place before the Court in the Chamber for perusal and appropriate orders. (Samit Gopal, J.) Order Date :- 24.4.2025 Gaurav Kuls GAURAV KULSHRESTHA GAURAV KULSHRESTHA High Court of Judicature at Allahabad High Court of Judicature at Allahabad