Khurshid As Per F.I.R.) v. State Of U.P. Thru. Prin. Secy. Home Lko And

2. This is the second bail application. The first bail application of the applicant bearing Bail No.1207 of 2025 was dismissed by a Co-ordinate Bench of this Court vide order dated 07.02.2025.

3. The present bail application has been filed by accused-applicant seeking bail in Case Crime No.0325 of 2024, under Sections 137(2), 65(1), 351(2) BNS and Sections 3/4(2) POCSO Act, P.S. Kursi, District Barabanki.

4. In the F.I.R. it is alleged that sister of the informant aged about 12 years has been enticed away by the applicant and taken on the motor- cycle and in the bushes outside the village raped her. She kept weeping. She further stated that father of the girl is in Saudi Arabia, brother works in Lucknow and mother often remains ill.

5. Learned counsel for applicant submits that in the statement under Section 180 BNSS, the victim has stated that applicant has taken photograph and threatened to made viral photo and video of the victim. He submits that no such photograph has been taken by the applicant. Nothing has been found in the investigation. No photo or video has been 2 BAIL No. 1954 of 2025 recovered. He submits that in the night at 11 o'clock while she was returning from somewhere since her family members saw her therefore, she has made allegation and lodged the F.I.R. In the statement under Section 183 BNSS improvement has been made and it has been alleged that applicant is committing rape on her for the last one year.

6. He further submits that victim's father is in Saudi Arabia brother is in Lucknow and mother remains ill and this may the reason that the victim on her own is roaming around in the night and after being caught by her family members she has falsely implicated the applicant. There is lack of corroborative medical evidence in the medico legal examination of the victim although the incident under Section 183 BNSS is said to have taken place on 09.10.2024 and the medical was promptly done on

11.10.2024 still nothing has been fund in the medical which falsifies the prosecution case. He submits that the applicant is in jail since 11.10.2024. It is lastly submitted by learned counsel for the applicant that plus-minus two years of variation is possible on either side in determination of the age as per the ossification test and the applicant being the accused is entitled to the benefit of higher side in view of the judgment of the Supreme Court passed in the case of "Jaya Mala v. Govt. of J & K, (1982) 2 SCC 538".

7. Learned A.G.A. has opposed the bail prayer and has submitted that as per the radio-logical examination, victim is 14 years old however, he does not dispute that no photo or video as stated by the victim in her statements has been recovered by the Investigating Officer.

8. On due consideration to the submissions advanced, perusal of the record as also the fact that the applicant is languishing in jail since

11.10.2024, applicant has no criminal history, admittedly no obscene photo or video of the victim as alleged in the prosecution case has been recovered by the Investigating Officer, improvement made by the victim while giving statement under Sections 180 & 183 BNSS did not inspire confidence and coupled with the fact that the prosecution case lacks corroborative material and without expressing any opinion on merits of the case, I find it to be a fit case for enlarging the applicant on bail.

9. Accordingly, the bail application is allowed. 3 BAIL No. 1954 of 2025

10. Let the applicant Mohd. Shadab (Mohd. Shadab @ Khurshid As Per F.I.R.) be released on bail in aforesaid case crime number subject to his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions: (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not pressurize/ intimidate the prosecution witness. (iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Panel Code (now Section 269 of BNS). (vi) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. (now Section 84 BNSS) is issued and the applicant fails 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 of the Indian Panel Code (now Section 209 BNS). August 27, 2025 Saurabh Yadav/- (Karunesh Singh Pawar,J.) SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

2. This is the second bail application. The first bail application of the applicant bearing Bail No.1207 of 2025 was dismissed by a Co-ordinate Bench of this Court vide order dated 07.02.2025.

3. The present bail application has been filed by accused-applicant seeking bail in Case Crime No.0325 of 2024, under Sections 137(2), 65(1), 351(2) BNS and Sections 3/4(2) POCSO Act, P.S. Kursi, District Barabanki.

4. In the F.I.R. it is alleged that sister of the informant aged about 12 years has been enticed away by the applicant and taken on the motor- cycle and in the bushes outside the village raped her. She kept weeping. She further stated that father of the girl is in Saudi Arabia, brother works in Lucknow and mother often remains ill.

5. Learned counsel for applicant submits that in the statement under Section 180 BNSS, the victim has stated that applicant has taken photograph and threatened to made viral photo and video of the victim. He submits that no such photograph has been taken by the applicant. Nothing has been found in the investigation. No photo or video has been 2 BAIL No. 1954 of 2025 recovered. He submits that in the night at 11 o'clock while she was returning from somewhere since her family members saw her therefore, she has made allegation and lodged the F.I.R. In the statement under Section 183 BNSS improvement has been made and it has been alleged that applicant is committing rape on her for the last one year.

6. He further submits that victim's father is in Saudi Arabia brother is in Lucknow and mother remains ill and this may the reason that the victim on her own is roaming around in the night and after being caught by her family members she has falsely implicated the applicant. There is lack of corroborative medical evidence in the medico legal examination of the victim although the incident under Section 183 BNSS is said to have taken place on 09.10.2024 and the medical was promptly done on

11.10.2024 still nothing has been fund in the medical which falsifies the prosecution case. He submits that the applicant is in jail since 11.10.2024. It is lastly submitted by learned counsel for the applicant that plus-minus two years of variation is possible on either side in determination of the age as per the ossification test and the applicant being the accused is entitled to the benefit of higher side in view of the judgment of the Supreme Court passed in the case of "Jaya Mala v. Govt. of J & K, (1982) 2 SCC 538".

7. Learned A.G.A. has opposed the bail prayer and has submitted that as per the radio-logical examination, victim is 14 years old however, he does not dispute that no photo or video as stated by the victim in her statements has been recovered by the Investigating Officer.

8. On due consideration to the submissions advanced, perusal of the record as also the fact that the applicant is languishing in jail since

11.10.2024, applicant has no criminal history, admittedly no obscene photo or video of the victim as alleged in the prosecution case has been recovered by the Investigating Officer, improvement made by the victim while giving statement under Sections 180 & 183 BNSS did not inspire confidence and coupled with the fact that the prosecution case lacks corroborative material and without expressing any opinion on merits of the case, I find it to be a fit case for enlarging the applicant on bail.

9. Accordingly, the bail application is allowed. 3 BAIL No. 1954 of 2025

10. Let the applicant Mohd. Shadab (Mohd. Shadab @ Khurshid As Per F.I.R.) be released on bail in aforesaid case crime number subject to his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions: (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not pressurize/ intimidate the prosecution witness. (iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Panel Code (now Section 269 of BNS). (vi) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. (now Section 84 BNSS) is issued and the applicant fails 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 of the Indian Panel Code (now Section 209 BNS). August 27, 2025 Saurabh Yadav/- (Karunesh Singh Pawar,J.) SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench