Neutral Citation No. - 2025:AHC:79937 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10266 of 2025 Applicant :- Irfan @ Kaku Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Arun Kumar Pandey,Suman Mishra Counsel for Opposite Party :- G.A.,Kameshwar Singh,Pooja Srivastava Hon'ble Krishan Pahal,J. 1. List has been revised. Compliance affidavit filed by learned A.G.A. is taken on record. 2. Heard Sri Arun Kumar Pandey, learned counsel for the applicant, Sri Kameshwar Singh, learned counsel for the informant, Ms. Pooja Srivastava, learned counsel for the opposite party no. 3 as well as Sri Sunil Kumar, learned A.G.A. for the State and perused the material placed on record. 3. Applicant seeks bail in Case Crime No.344 of 2024, U/S 70(2), 333, 352, 351(2), 351(3), 296 B.N.S. and 3/4 of Protection of Children from Sexual Offences Act, Police Station Mahrajpur, District Kanpur Nagar, during the pendency of trial. PROSECUTION STORY: 4. The applicant is stated to have committed rape with the daughter of the informant, aged about 13 years, on 13.8.2024 at about 12.00 noon. The victim is stated to have subsequently raised alarm about the incident, as such, the co-accused persons are stated to have rushed there and hurled abuses at the informant and other persons and threatened them. ARGUMENTS ON BEHALF OF APPLICANT: 5. The applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. It is stated that he has nothing to do with the said offence. 6. The FIR is delayed by about three days and there is no explanation of the said delay caused. 7. The allegations of rape have been made subsequently. The victim was not in a fit condition to depose, as is evident from the detailed medical report and the BHT furnished by learned A.G.A. In the medical report, it has been mentioned that the victim was having difficulty in speaking. She was under oxygen and her prognosis was poor, as such, the statements have been recorded in collusion with the informant. The statements of the victim recorded u/s 180 B.N.S.S. cannot tantamount to dying declaration. 8. The medical report categorically indicates that the victim had mistakenly consumed an insecticide instead of cough syrup, as such, she was admitted to hospital. She did not commit suicide. There is no medical corroboration of the incident, as such, the applicant is entitled for bail. 9. The applicant is languishing in jail since 4.9.2024 having no criminal history and in case, the applicant is released on bail, he will not misuse the liberty of bail. ARGUMENTS ON BEHALF OF STATE/OPPOSITE PARTY: 10. The bail application has been opposed on the ground that the victim had narrated the story to her parents, which has been recorded by the investigating officer. The said statement recorded by the investigating officer was taken in the form of question and answer and the victim had nodded to the questions put to her. He had penned down the statement of the victim u/s 180 B.N.S.S., as her dying declaration could not be recorded under the provisions of Section 26 of B.N.S.S. The victim has categorically nominated the applicant in her said statement recorded by the investigating officer, as such, the applicant is not entitled for bail. 11. The case of the applicant is at a different footing to that of the other accused person, who has been enlarged on bail, as he is the main perpetrator of the crime. CONCLUSION: 12. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, the statement of the victim recorded u/s 180 B.N.S.S. and the applicant being the main accused person having committed rape with the victim, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail. 13. The bail application is, accordingly, rejected. 14. However, it is directed that the aforesaid case pending before the trial court be decided expeditiously, in view of the principle laid down in the recent judgements of the Supreme Court in the cases of Vinod Kumar vs. State of Punjab 2015 (3) SCC 220 and Hussain and Another vs. Union of India (2017) 5 SCC 702, if there is no legal impediment. 15. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 15.5.2025 Shalini (Justice Krishan Pahal) Digitally signed by :- SHALINI JAISWAL High Court of Judicature at Allahabad