Nand Kishor Alias Neetu v. Party(s)

1. Heard Mr. Mangla Rai Advocate holding brief of Mr. Siddharth Niranjan, the learned counsel for applicant and the learned A.G.A. for State

2. Perused the record.

3. This repeat application for bail has been filed by applicant-Nand Kishor Alias Neetu seeking his enlargement on bail in Case Crime No. 301 of 2021 under Section 376AB I.P.C., Sections 5m/6 of the POCSO Act and Section 3 (2) (v) of SC/ST Act, Police Station-Bilhaur, District-Kanpur Dehat, during the pendency of trial i.e. Sessions Case No. 1263 of 2021 (State Vs. Nand Kishor Alias Neetu) under Section 376AB I.P.C., Sections 5m/6 of the POCSO Act and Section 3 (2) (v) of SC/ST Act now pending in the Court of Additional District Judge, Court No. 13/ Special Judge (POCSO Act), Kanpur Dehat.

4. At the very outset, the learned A.G.A. submits that notice of present repeat application for bail has been served upon first informant/opposite party-2 on 21.09.2025. However, inspite of service of notice, neither any counter affidavit has been filed by opposite party-2 nor any one has appeared on his behalf to oppose this repeat application for bail.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 20.12.2022 passed in Criminal Misc. Bail Application No. 25076 of 2022 (Nand KIshor @ Neetu Vs. State of U.P. and 3 others). For ready reference, the said order is reproduced herein under: "Heard Mr. D.K. Singh, the learned counsel for applicant and the learned A.G.A. for State. 2 BAIL No. 31781 of 2025 This application for bail has been filed applicant Nand Kishor @ Neetu seeking his enlargement on bail in Case Crime No. 301 of 2021, under sections 376 (AB) IPC and Section 5m/6 of the POCSO Act and Section 3(2)(v) SC/ST Act Act, Police Station- Bilhaur, District Kanpur Dehat during the pendency of trial. At the very outset, learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party-3. However, inspite of service of notice, no one has put in appearance on behalf of first informant/opposite party-3 to oppose the present application for bail. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 13.9.2021, an F.I.R. dated 13.9.2021 was lodged by first informant Lalla and was registered as Case Crime No. 301 of 2021, under sections 376 (AB) IPC and Section 5m/6 of the POCSO Act and Section 3(2)(v) SC/ST Act Act, Police Station- Bilhaur, District Kanpur Dehat. In the aforesaid F.I.R. applicant- Nandkishore @ Neetu has been nominated as solitary named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused forcibly dislodged the modesty of prosecutrix/daughter of first informant. After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant under section 161 Cr.P.C. who has supported the prosecution story as unfolded in F.I.R.. Thereafter the statement of the prosecution was recorded under section 161 Cr.P.C. wherein she has not only supported the F.I.R. but has also detailed the manner of occurrence. Thereafter the prosecutrix was requested for her medical examination. The prosecutrix, in her statement before the Doctor has reiterated her earlier statement under section 161 Cr.P.C. Doctor who examined the prosecutrix did not find any signs on the body of deceased so as to denote commission of sexual assault. With regard to private part of the prosecutrix, the Doctor has opined as follows: "Hymen is intact regular margins no bleeding". 3 BAIL No. 31781 of 2025 Certain samples were taken from the body of deceased for pathological examination. However, same show negative result. Thereafter, the statement of the prosecutrix was recorded under section 164 Cr.P.C., wherein the prosecutrix has reiterated her earlier statement. During course of investigation, Investigating Officer examined other witnesses namely, Smt. Soni (mother of prosecutrix) Smt. Vandana and Seema who have also supported the prosecution story as unfolded in the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, which is substantially adverse to applicant, he opined to submit charge sheet. Accordingly Investigating Officer submitted the charge sheet dated 7.10.2021, whereby applicant has been charge-sheeted under sections 376 (AB) IPC and Section 5m/6 of the POCSO Act and Section 3(2)(v) SC/ST Act Act. Learned counsel for applicant submits that though the applicant is a named as well as charge sheeted accused, but he is innocent. Applicant has been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. Medical evidence does not support the ocular version of the F.I.R. Consequently, the charge alleged against applicant does not stand established. It is then contended that applicant is being falsely and maliciously prosecuted in aforesaid case crime number on account of political rivalry. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 5.9.2021. As such, he has undergone more than one year and three months of incarceration. In case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A has opposed this application. He submits that since applicant is a named as well as charge sheeted accused, he does not deserve any indulgence by this Court. It is then contended that even though medical evidence does not support the ocular version of occurrence, yet prosecution of applicant can be maintained in view of impecable character of the statement of prosecutrix. Reliance is placed upon the judgement of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74.,wherein Court has held that prosecution of an accused under section 376 IPC can be maintained on the oral statement of prosecutrix provided such statement is of impecable character. As such 4 BAIL No. 31781 of 2025 applicant does not deserve any sympathy of this Court. When confronted with above, learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that prosecutrix is a young girl aged about six years and seven months, impecable character of oral statement of prosecutrix recorded under section 161 Cr.P.C., statement of Doctor recorded under section 164 Cr.P.C, the provisions contained in Section 5m/6 of the POCSO Act, but without making any comments on the merits of the case, this Court does not find good ground to enlarge the applicant on bail. In view of above, the present application fails and is liable to be rejected It is accordingly rejected. Order Date :- 20.12.2022 "

6. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused and facing trial during incarceration, however, in view of the facts as have now crysrtalized on record, applicant is liable to be enlarged on bail. Applicant is in jail since 15.09.2021. As such, applicant has undergone more than 4 years incarceration. The charge sheet/police report in terms of Section 173 (2) Cr.P.C. has already been submitted by the Investigating Officer, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. The trial of applicant has already commenced before court below and upto this stage two prosecution witnesses of fact i.e. P.W.-1, Kalla, the first informant (father of the prosecutrix) and P.W.-2, the prosecutrix herself have deposed before court below. On the above premise, the learned counsel for applicant submits that once the statements of first informant (father of the prosecutrix) and the prosecutrix have been recorded before court below then in case applicant is enlarged on bail then in that eventuality it cannot be said that if the applicant is enlarged on bail, he shall either terrorize the witnesses and shall hamper the course of trial. He therefore contends that in view of above no good or justifiable ground now exists to prolong the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail 5 BAIL No. 31781 of 2025 and shall co-operate in the conclusion of trial.

7. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. Considering the above, applicant is liable to be enlarged on bail.

8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge-sheeted accused therefore he does not deserve any indulgence by this court. According to the learned A.G.A the prosecutrix is a young and innocent child below 13 years of age. Applicant is guilty of committing offence under Section 5m/6 of the POCSO Act. Placing reliance upon Section 29 of the POCSO Act, the learned A.G.A. contends that there is a statutory presumption with regard to happening of the occurrence giving rise to present criminal proceedings. However, upto this stage no such evidence has emerged on record on the basis of which, the very occurrence could be doubted. Considering the fact that the prosecutrix is a small girl, as such, criminality committed upon her cannot be said to be private in nature but a crime against society. In fact, criminality committed by applicant is not only illegal but also immoral. The prosecutrix in her deposition before court below has fully supported the prosecution story. In spite of the fact the prosecutrix was cross-examined on behalf of accused yet she could not be dislodged as she remained consistent throughout. Learned A.G.A. would thus submit that in view of above, the period in incarceration undergone by applicant by itself cannot be said to be so sufficient circumstance so as to enlarge the applicant on bail.

9. When confronted with above, the learned counsel for applicant could not overcome the same.

10. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, this Court finds that the objections raised by the learned A.G.A. in opposition of this repeat application for bail could not be dislodged by the learned counsel for applicant. Considering the above and irrespective of the submissions urged by the learned counsel for applicant in support of present repeat application for bail but without expressing any opinion on the merits of the case, this court does not find any new, good or sufficient ground so as to enlarge the 6 BAIL No. 31781 of 2025 applicant on bail.

11. As a result, present repeat application for bail fails and is liable to be rejected.

12. It is accordingly rejected. October 10, 2025 YK (Rajeev Misra,J.) YASHWANT KUMAR High Court of Judicature at Allahabad