High Court · 2025

1. List has been revised. Learned counsel for the informant is not present.

2. Heard Sri N.I. Jafri, learned Senior Counsel assisted by Sri S.I. Jafri, learned counsel for the applicant, Sri R.P. Singh, learned State Law Officer for the State and perused the material placed on record.

3. Learned State Law Officer has informed that the notice to the informant has been served on 27.11.2024.

4. Applicant seeks bail in Case Crime No.271 of 2024, under Sections 333, 123, 65(1), 115(2) B.N.S. and Section 3/4 POCSO Act, Police Station Linkroad, District Ghaziabad, during the pendency of trial.

5. As per prosecution story, the applicant is stated to have barged into the house of the informant and committed rape with his daughter aged about 16 years on 28.08.2024. The other family members are stated to have been also beaten up by him.

6. Learned Senior Counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. The FIR is delayed as it was instituted the next day i.e. on 29.08.2024 at about 1:07 p.m. There is no time of offence mentioned in the FIR. Learned Senior Counsel has further stated that the victim has not sustained any injuries whatsoever to corroborate the the allegations of rape.

7. Learned Senior Counsel has also argued that it is true that the applicant works in the vicinity of the house of the informant and he was seen in the CCTV footage coming out of the house of the informant, but the said fact does not stand corroborated by any evidence as the victim has not nominated the applicant in her statement recorded under Sections 180 and 183 B.N.S.S. She has stated that some unknown person had sexually assaulted her who had come with two other co- accused persons.

8. Learned Senior Counsel has further argued that there is no test identification parade of the applicant conducted as per Section 7 of Bharatiya Sakshya Adhiniyam, as such, it is a clear-cut case of false implication. It is true that the applicant is named in the FIR, but how the informant nominated the applicant is best known to him. There is no criminal history of the applicant. The applicant is languishing in jail since 29.08.2024 and he is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

9. Learned A.G.A. has vehemently opposed the bail application on the ground that the victim is minor aged about 16 years old and the applicant was seen coming out from the house of the informant and he was also seen loitering in the area, as such, he is not entitled for bail, although he could not dispute the fact that there is no injury sustained by the victim.

10. The allegations of applicant having rendered victim unconscious by putting handkerchief on her face cannot be relied in the light of observations in Modi’s Medical Jurisprudence & Toxicology, Twenty-Second Edition (Student Edition) at page 511, which is being reproduced as under: “……………… Concerning the administration of an anaesthetic drug, such as chloroform, it must be remembered that it is impossible to anaesthetise a woman against her will while she is awake. Even a skilled anaesthetist requires the help of one or two assistants to hold a patient forcibly down on the operating table during the first stage of anaesthesia, although the patient voluntarily inhales it for an operation. It is also impossible for an inexperienced man to anaesthetise a sleeping person without disturbance, so as to substitute artificial sleep for natural sleep. Hence the story often published in the lay press of a woman having been rendered suddenly unconscious by a handkerchief soaked in chloroform held over her face and then raped is not to be believed. It must be borne in mind that a woman, especially of an excitable and emotional temperament, during the stage of anaesthesia, might get a dream or hallucination that she has been raped, and may insist on the belief after the effects of anaesthesia have passed off, so that she brings an accusation of violation against her medical attendant. …………”

11. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the opinion expressed in Modi’s Medical Jurisprudence & Toxicology coupled with the fact that the FIR is delayed and there being no injury sustained by the victim whatsoever, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

12. Let the applicant- Faizan, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with evidence. (ii) 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 313 Cr.P.C./351 B.N.S.S. 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 him in accordance with law.

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

14. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 28.4.2025 (Ravi Kant) (Justice Krishan Pahal) RAVI KANT RAVI KANT RAVI KANT High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. List has been revised. Learned counsel for the informant is not present.

2. Heard Sri N.I. Jafri, learned Senior Counsel assisted by Sri S.I. Jafri, learned counsel for the applicant, Sri R.P. Singh, learned State Law Officer for the State and perused the material placed on record.

3. Learned State Law Officer has informed that the notice to the informant has been served on 27.11.2024.

4. Applicant seeks bail in Case Crime No.271 of 2024, under Sections 333, 123, 65(1), 115(2) B.N.S. and Section 3/4 POCSO Act, Police Station Linkroad, District Ghaziabad, during the pendency of trial.

5. As per prosecution story, the applicant is stated to have barged into the house of the informant and committed rape with his daughter aged about 16 years on 28.08.2024. The other family members are stated to have been also beaten up by him.

6. Learned Senior Counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. The FIR is delayed as it was instituted the next day i.e. on 29.08.2024 at about 1:07 p.m. There is no time of offence mentioned in the FIR. Learned Senior Counsel has further stated that the victim has not sustained any injuries whatsoever to corroborate the the allegations of rape.

7. Learned Senior Counsel has also argued that it is true that the applicant works in the vicinity of the house of the informant and he was seen in the CCTV footage coming out of the house of the informant, but the said fact does not stand corroborated by any evidence as the victim has not nominated the applicant in her statement recorded under Sections 180 and 183 B.N.S.S. She has stated that some unknown person had sexually assaulted her who had come with two other co- accused persons.

8. Learned Senior Counsel has further argued that there is no test identification parade of the applicant conducted as per Section 7 of Bharatiya Sakshya Adhiniyam, as such, it is a clear-cut case of false implication. It is true that the applicant is named in the FIR, but how the informant nominated the applicant is best known to him. There is no criminal history of the applicant. The applicant is languishing in jail since 29.08.2024 and he is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

9. Learned A.G.A. has vehemently opposed the bail application on the ground that the victim is minor aged about 16 years old and the applicant was seen coming out from the house of the informant and he was also seen loitering in the area, as such, he is not entitled for bail, although he could not dispute the fact that there is no injury sustained by the victim.

10. The allegations of applicant having rendered victim unconscious by putting handkerchief on her face cannot be relied in the light of observations in Modi’s Medical Jurisprudence & Toxicology, Twenty-Second Edition (Student Edition) at page 511, which is being reproduced as under: “……………… Concerning the administration of an anaesthetic drug, such as chloroform, it must be remembered that it is impossible to anaesthetise a woman against her will while she is awake. Even a skilled anaesthetist requires the help of one or two assistants to hold a patient forcibly down on the operating table during the first stage of anaesthesia, although the patient voluntarily inhales it for an operation. It is also impossible for an inexperienced man to anaesthetise a sleeping person without disturbance, so as to substitute artificial sleep for natural sleep. Hence the story often published in the lay press of a woman having been rendered suddenly unconscious by a handkerchief soaked in chloroform held over her face and then raped is not to be believed. It must be borne in mind that a woman, especially of an excitable and emotional temperament, during the stage of anaesthesia, might get a dream or hallucination that she has been raped, and may insist on the belief after the effects of anaesthesia have passed off, so that she brings an accusation of violation against her medical attendant. …………”

11. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the opinion expressed in Modi’s Medical Jurisprudence & Toxicology coupled with the fact that the FIR is delayed and there being no injury sustained by the victim whatsoever, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

12. Let the applicant- Faizan, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with evidence. (ii) 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 313 Cr.P.C./351 B.N.S.S. 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 him in accordance with law.

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

14. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 28.4.2025 (Ravi Kant) (Justice Krishan Pahal) RAVI KANT RAVI KANT RAVI KANT High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad