High Court

2. Heard Sri Anand Pati Tiwari, learned counsel for the applicant and Sri Suresh Bahadur Singh, learned A.G.A. for the State- respondent.

3. The instant bail application has been filed seeking release of the applicant on bail in Session Case No.615 of 2023 arising out of Case Crime No.5 of 2023, under Sections 396, 412 IPC, Police Station Kakwan, District Kanpur Nagar, during pendency of the trial.

4. FIR of the present case was lodged on 13.01.2023 against unknown persons under Section 396 I.P.C. and according to the FIR, in the night of 13.01.2023 unknown accused persons committed dacoity in the house of the informant and in the incident they committed the loot of Rs.3,00,000/- and jewelries of about Rs.5,00,000/-. It is further mentioned in the FIR that in the incident they committed the murder of parents of the informant.

5. Learned counsel for the applicant submits that however, it is a case of dacoity with double murder but during investigation, applicant has been made accused through the statements of co- accused persons.

6. He further submits that however, neither informant nor his wife in their statements disclosed the name of any accused including applicant but surprisingly when second statement of the wife of the informant was recorded then she disclosed the name of number of accused persons including applicant and as her second statement was recorded after the statement of co-accused persons, therefore, it appears when applicant has been made accused on the basis of the statements of co-accused then through second statement of the wife of the informant, I.O. tried to implicate the applicant in the present matter.

7. He further submits that second statement of the wife of the informant cannot be considered.

8. He further submits that however, as per allegation, when applicant was arrested then from his possession some alleged looted jewelries were recovered but entire recovery is false and baseless.

9. He further submits that even without any other corroborative cogent evidence merely on the basis of such recovery, it cannot be said that applicant involved in the alleged dacoity.

10. He further submits that name of the applicant was disclosed by four co-accused persons including co-accused Vivek Yadav and Shishu Yadav Alias Abhishek Yadav and from their possession also some alleged looted ornaments were recovered and wife of the informant in her second statement recorded during investigation also disclosed their name but both the above co-accused have already been released on bail by Co-ordinate Bench of this Court and their bail orders have been annexed as Annexure No.10 to the affidavit filed in support of the instant bail application and on facts, case of applicant is at par with them.

11. He further submits that apart from the present case, applicant is having criminal history of eight other cases and only due to his previous criminal history, during investigation police implicated him in the present matter and his criminal history has been explained in the affidavit filed in support of the instant bail application and from perusal of the criminal antecedents of the applicant, it reflects, majority of the cases were of theft.

12. He further submits that applicant is in jail in the present matter since 11.02.2023 i.e. for last more than two years.

13. Per contra, learned AGA however opposed the prayer for bail but could not dispute the arguments on facts advanced by learned counsel for the applicant.

14. I have heard both the parties and perused the record of the case.

15. However, it is a case of dacoity and in the alleged dacoity, the parents of the informant lost their lives but during investigation, applicant has been made accused in the present matter through the statements of co-accused persons and however, wife of the informant in her second statement recorded during investigation, disclosed the name of the applicant alongwith other accused persons including co-accused Vivek Yadav and Shishu Yadav Alias Abhishek Yadav but she did not disclose their name in her first statement.

16. Further, however, as per prosecution, from the possession of the applicant some alleged looted ornaments were also recovered but this Court finds merit in the argument advanced by learned counsel for the applicant that merely on the basis of such recovery without any other cogent corroborative evidence, it is hard to believe that applicant committed the alleged dacoity.

17. Further, both the above co-accused Vivek and Shishu have already been released on bail by Co-ordinate Bench of this Court and even from their possession alleged looted ornaments were recovered, therefore, it reflects, on facts, case of applicant is at par with them.

18. Further, however, apart from the present case, applicant is having criminal history of eight other cases but his criminal history has been explained in the affidavit filed in support of the instant bail application and after considering the criminal antecedents of the applicant, the argument advanced by learned counsel for the applicant that only due to his previous criminal history, applicant during investigation has been made accused, cannot be ruled out at this stage.

19. Further, law is settled, if otherwise case of bail is made out then merely on the basis of criminal antecedents bail application of an accused ordinarily should not be withheld.

20. Further, applicant is in jail in the present matter since 11.02.2023 i.e. for last more than two years.

21. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

22. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

23. Let the applicant- Himanshu Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless her personal presence is exempted. (ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

24. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

25. 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 :- 20.3.2025 Zafar

2. Heard Sri Anand Pati Tiwari, learned counsel for the applicant and Sri Suresh Bahadur Singh, learned A.G.A. for the State- respondent.

3. The instant bail application has been filed seeking release of the applicant on bail in Session Case No.615 of 2023 arising out of Case Crime No.5 of 2023, under Sections 396, 412 IPC, Police Station Kakwan, District Kanpur Nagar, during pendency of the trial.

4. FIR of the present case was lodged on 13.01.2023 against unknown persons under Section 396 I.P.C. and according to the FIR, in the night of 13.01.2023 unknown accused persons committed dacoity in the house of the informant and in the incident they committed the loot of Rs.3,00,000/- and jewelries of about Rs.5,00,000/-. It is further mentioned in the FIR that in the incident they committed the murder of parents of the informant.

5. Learned counsel for the applicant submits that however, it is a case of dacoity with double murder but during investigation, applicant has been made accused through the statements of co- accused persons.

6. He further submits that however, neither informant nor his wife in their statements disclosed the name of any accused including applicant but surprisingly when second statement of the wife of the informant was recorded then she disclosed the name of number of accused persons including applicant and as her second statement was recorded after the statement of co-accused persons, therefore, it appears when applicant has been made accused on the basis of the statements of co-accused then through second statement of the wife of the informant, I.O. tried to implicate the applicant in the present matter.

7. He further submits that second statement of the wife of the informant cannot be considered.

8. He further submits that however, as per allegation, when applicant was arrested then from his possession some alleged looted jewelries were recovered but entire recovery is false and baseless.

9. He further submits that even without any other corroborative cogent evidence merely on the basis of such recovery, it cannot be said that applicant involved in the alleged dacoity.

10. He further submits that name of the applicant was disclosed by four co-accused persons including co-accused Vivek Yadav and Shishu Yadav Alias Abhishek Yadav and from their possession also some alleged looted ornaments were recovered and wife of the informant in her second statement recorded during investigation also disclosed their name but both the above co-accused have already been released on bail by Co-ordinate Bench of this Court and their bail orders have been annexed as Annexure No.10 to the affidavit filed in support of the instant bail application and on facts, case of applicant is at par with them.

11. He further submits that apart from the present case, applicant is having criminal history of eight other cases and only due to his previous criminal history, during investigation police implicated him in the present matter and his criminal history has been explained in the affidavit filed in support of the instant bail application and from perusal of the criminal antecedents of the applicant, it reflects, majority of the cases were of theft.

12. He further submits that applicant is in jail in the present matter since 11.02.2023 i.e. for last more than two years.

13. Per contra, learned AGA however opposed the prayer for bail but could not dispute the arguments on facts advanced by learned counsel for the applicant.

14. I have heard both the parties and perused the record of the case.

15. However, it is a case of dacoity and in the alleged dacoity, the parents of the informant lost their lives but during investigation, applicant has been made accused in the present matter through the statements of co-accused persons and however, wife of the informant in her second statement recorded during investigation, disclosed the name of the applicant alongwith other accused persons including co-accused Vivek Yadav and Shishu Yadav Alias Abhishek Yadav but she did not disclose their name in her first statement.

16. Further, however, as per prosecution, from the possession of the applicant some alleged looted ornaments were also recovered but this Court finds merit in the argument advanced by learned counsel for the applicant that merely on the basis of such recovery without any other cogent corroborative evidence, it is hard to believe that applicant committed the alleged dacoity.

17. Further, both the above co-accused Vivek and Shishu have already been released on bail by Co-ordinate Bench of this Court and even from their possession alleged looted ornaments were recovered, therefore, it reflects, on facts, case of applicant is at par with them.

18. Further, however, apart from the present case, applicant is having criminal history of eight other cases but his criminal history has been explained in the affidavit filed in support of the instant bail application and after considering the criminal antecedents of the applicant, the argument advanced by learned counsel for the applicant that only due to his previous criminal history, applicant during investigation has been made accused, cannot be ruled out at this stage.

19. Further, law is settled, if otherwise case of bail is made out then merely on the basis of criminal antecedents bail application of an accused ordinarily should not be withheld.

20. Further, applicant is in jail in the present matter since 11.02.2023 i.e. for last more than two years.

21. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

22. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

23. Let the applicant- Himanshu Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless her personal presence is exempted. (ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

24. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

25. 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 :- 20.3.2025 Zafar