High Court · 2025

2. Heard Sri Prabha Shanker Mishra, learned counsel for the applicant, Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.

3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Yogesh @ Nanhey, seeking enlargement on bail during trial in S.C. No. 381 of 2023, arising out of Case Crime No.53 of 2023, under Section 376 I.P.C. & Section 3/4 POCSO Act, P.S. Amapur, District Kasganj.

4. This is a second bail application. The first bail application of the applicant was rejected vide order dated 18.8.2023 passed by this Court passed in Criminal Misc. Bail Application No.29411 of 2023.

5. Notice was issued to the first informant vide order dated 05.09.2024. As per office report dated 03.10.2024, notice has been served upon the first informant personally but no one appears on behalf of first informant even when the matter is taken up in the revised list despite service of notice.

6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. While placing supplementary affidavit dated 23.4.2025, learned counsel for the applicant has placed the statement of Dr. Shiv Shree Tiwari examined as P.W.5 before the trial court and has submitted that the said doctor has stated that the victim was habitual to sexual intercourse. The fact that the victim was raped could not be deciphered from the medical examination. The prosecution case of the rape on the victim is false. The applicant is in jail since 12.3.2023.

7. Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the first bail application of the applicant was rejected by this Court on merits. The first informant Amar Singh was examined as P.W.1 before the trial court and the victim was examined as P.W.2 who have supported the prosecution case. He has placed before the Court the statements of both the witnesses as annexure no.7 to the affidavit in support of bail application. Since the victim and the first informant have supported the prosecution case in full and the victim has stated of the applicant committing rape on her, there is no fresh and new ground exists, as such bail application of the applicant be rejected.

8. After hearing the counsel for the parties and perusing the record, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 18.8.2023, the said order reads as under:- "1. List revised.

2. Heard Sri Chakshuvendra Pachauri, learned counsel for the applicant, Ms. Aarushi Khare, learned panel lawyer of High Court Legal Services Committee for the opposite party no. 4, who has filed her memo of appearance today in Court which is taken on record, Sri Ram Prakash Shukla, learned A.G.A. and perused the material on record.

3. Notice was issued to the first informant vide order dated 6.7.2023. As per office report dated 2.8.2023 notice has been served personally on the first informant. Despite service no one appears on behalf of the first informant. Service of notice upon the first informant is thus sufficient.

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Yogesh @ Nanhey, seeking enlargement on bail during trial in S.C. No. 381 of 2023, arising out of Case Crime No.53 of 2023, under Section 376 I.P.C. & Section 3/4 POCSO Act, P.S. Amapur, District Kasganj.

5. The F.I.R. of the matter was lodged on 11.3.2023, under Sections 376 I.P.C. and 3/4 POCSO Act by Amar Singh against the applicant Yogesh @ Nanhey with the allegation that on 11.3.2023 at about 2.00 a.m. in the morning, his daughter was returning after easing where the applicant committed rape upon her. His daughter is aged about 16-1/2 years. She in an injured condition came back running and told about the incident. The F.I.R. has thus been lodged.

6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that totally false story has been prepared against the applicant and he has been falsely implicated. It is further argued that the F.I.R. has been lodged after a delay of about 18 hours from the date of incident for which there is no satisfactory explanation given. While placing para-13 of the affidavit it is argued that the victim is a consenting party and she is more than 16 years as mentioned in the F.I.R. itself. It is argued that as per school records, date of birth of the victim is 10.8.2006 and as such she was about 17 years at the time of incident. It is argued that police has submitted charge sheet against the applicant on 21.4.2023 and as such there are no chances of the applicant tempering with the evidence or threatening the witnesses. It is argued that the applicant is having no criminal history as stated in para-24 of the affidavit and is jail since 12.3.2023.

7. Per contra, learned AGA and learned panel lawyer of High Court Legal Services Committee vehemently opposed the prayer for bail and argued that the applicant is named in the F.I.R., in the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and there are allegation of his committed rape upon the victim. It is further argued that as per radiological examination report the victim was opined to be aged about 14 years and as such she is a minor. It is argued that there is no reason for false implication of the applicant and since the victim is a minor her consent cannot be looked into at this stage. Therefore, the bail application of the applicant be rejected.

8. After having heard learned counsels for the parties and perusing the records, it is evident that the victim is aged about 14 years as per radiological examination report and as such she is a minor and consent of a minor is of no worth. There are allegation of the applicant committing rape upon the victim in the F.I.R. and the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C.

9. Looking into the facts and circumstances of the case as well as nature and gravity of the offence, I am not inclined to release the applicant on bail.

10. The bail application is, accordingly, rejected."

9. The trial in the matter has started in which the first informant and the victim have been examined as P.W.1 and P.W.2 respectively. Both the witnesses have supported the prosecution case. The role of rape on the victim has been assigned to the applicant. In so far as the statement of the doctor is concerned, the same should be appreciated by the trial court in trial. No ground for bail is made out.

10. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected. (Samit Gopal, J.) Order Date :- 5.5.2025 Gaurav Kuls GAURAV KULSHRESTHA High Court of Judicature at Allahabad

2. Heard Sri Prabha Shanker Mishra, learned counsel for the applicant, Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.

3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Yogesh @ Nanhey, seeking enlargement on bail during trial in S.C. No. 381 of 2023, arising out of Case Crime No.53 of 2023, under Section 376 I.P.C. & Section 3/4 POCSO Act, P.S. Amapur, District Kasganj.

4. This is a second bail application. The first bail application of the applicant was rejected vide order dated 18.8.2023 passed by this Court passed in Criminal Misc. Bail Application No.29411 of 2023.

5. Notice was issued to the first informant vide order dated 05.09.2024. As per office report dated 03.10.2024, notice has been served upon the first informant personally but no one appears on behalf of first informant even when the matter is taken up in the revised list despite service of notice.

6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. While placing supplementary affidavit dated 23.4.2025, learned counsel for the applicant has placed the statement of Dr. Shiv Shree Tiwari examined as P.W.5 before the trial court and has submitted that the said doctor has stated that the victim was habitual to sexual intercourse. The fact that the victim was raped could not be deciphered from the medical examination. The prosecution case of the rape on the victim is false. The applicant is in jail since 12.3.2023.

7. Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the first bail application of the applicant was rejected by this Court on merits. The first informant Amar Singh was examined as P.W.1 before the trial court and the victim was examined as P.W.2 who have supported the prosecution case. He has placed before the Court the statements of both the witnesses as annexure no.7 to the affidavit in support of bail application. Since the victim and the first informant have supported the prosecution case in full and the victim has stated of the applicant committing rape on her, there is no fresh and new ground exists, as such bail application of the applicant be rejected.

8. After hearing the counsel for the parties and perusing the record, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 18.8.2023, the said order reads as under:- "1. List revised.

2. Heard Sri Chakshuvendra Pachauri, learned counsel for the applicant, Ms. Aarushi Khare, learned panel lawyer of High Court Legal Services Committee for the opposite party no. 4, who has filed her memo of appearance today in Court which is taken on record, Sri Ram Prakash Shukla, learned A.G.A. and perused the material on record.

3. Notice was issued to the first informant vide order dated 6.7.2023. As per office report dated 2.8.2023 notice has been served personally on the first informant. Despite service no one appears on behalf of the first informant. Service of notice upon the first informant is thus sufficient.

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Yogesh @ Nanhey, seeking enlargement on bail during trial in S.C. No. 381 of 2023, arising out of Case Crime No.53 of 2023, under Section 376 I.P.C. & Section 3/4 POCSO Act, P.S. Amapur, District Kasganj.

5. The F.I.R. of the matter was lodged on 11.3.2023, under Sections 376 I.P.C. and 3/4 POCSO Act by Amar Singh against the applicant Yogesh @ Nanhey with the allegation that on 11.3.2023 at about 2.00 a.m. in the morning, his daughter was returning after easing where the applicant committed rape upon her. His daughter is aged about 16-1/2 years. She in an injured condition came back running and told about the incident. The F.I.R. has thus been lodged.

6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that totally false story has been prepared against the applicant and he has been falsely implicated. It is further argued that the F.I.R. has been lodged after a delay of about 18 hours from the date of incident for which there is no satisfactory explanation given. While placing para-13 of the affidavit it is argued that the victim is a consenting party and she is more than 16 years as mentioned in the F.I.R. itself. It is argued that as per school records, date of birth of the victim is 10.8.2006 and as such she was about 17 years at the time of incident. It is argued that police has submitted charge sheet against the applicant on 21.4.2023 and as such there are no chances of the applicant tempering with the evidence or threatening the witnesses. It is argued that the applicant is having no criminal history as stated in para-24 of the affidavit and is jail since 12.3.2023.

7. Per contra, learned AGA and learned panel lawyer of High Court Legal Services Committee vehemently opposed the prayer for bail and argued that the applicant is named in the F.I.R., in the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and there are allegation of his committed rape upon the victim. It is further argued that as per radiological examination report the victim was opined to be aged about 14 years and as such she is a minor. It is argued that there is no reason for false implication of the applicant and since the victim is a minor her consent cannot be looked into at this stage. Therefore, the bail application of the applicant be rejected.

8. After having heard learned counsels for the parties and perusing the records, it is evident that the victim is aged about 14 years as per radiological examination report and as such she is a minor and consent of a minor is of no worth. There are allegation of the applicant committing rape upon the victim in the F.I.R. and the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C.

9. Looking into the facts and circumstances of the case as well as nature and gravity of the offence, I am not inclined to release the applicant on bail.

10. The bail application is, accordingly, rejected."

9. The trial in the matter has started in which the first informant and the victim have been examined as P.W.1 and P.W.2 respectively. Both the witnesses have supported the prosecution case. The role of rape on the victim has been assigned to the applicant. In so far as the statement of the doctor is concerned, the same should be appreciated by the trial court in trial. No ground for bail is made out.

10. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected. (Samit Gopal, J.) Order Date :- 5.5.2025 Gaurav Kuls GAURAV KULSHRESTHA High Court of Judicature at Allahabad