Rinku Yadav … v. State Of U.P. Thru. Secy. Home Deptt. Lko

Judgment

1. Heard Shri Atul Verma, learned counsel for the applicant, learned AGA for the State as well as Shri Arun Sinha and Umang

Aggarwal, learned counsel for the complainant.

2. Learned counsel for the applicant submits that since the informant and the fact witnesses have been examined, there is no chance of tampering the evidence. The applicant is in custody since

20.12.2022.

3. In the prosecution case, it is alleged that on 03.12.2022, the informant along with his two brothers, after completing their work, was returning home. During this time, the accused persons, namely Shiva Yadav @ Shamsher Yadav, Jitendra Yadav, and CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 2 Rinku Yadav (all three being brothers), along with Maaike, son of Shammi, allegedly opened indiscriminate fire at the elder uncle, Ram Jeevan, near Wali Nagar Canal. As a result, he sustained injuries and fell down. On hearing the commotion, several people gathered at the spot, but the assailants managed to escape in their four-wheeler while firing shots in the air. The injured was taken to the Trauma Centre, where the doctor declared him dead.

4. Learned counsel for the applicant submits that no reason or motive for committing the alleged offence has been assigned either in the FIR or in the statement of the complainant. The inquest was conducted the following day, i.e., 04.12.2022, in which the complainant himself was an inquest witness. However, in his opinion during the inquest, the complainant did not name any of the accused persons.

5. It has further been submitted that the alleged eyewitness, Shivam, has given a contradictory version, stating that initially, an accident took place wherein the vehicle of the deceased was hit by the Scorpio belonging to the accused persons, and thereafter, the alleged incident occurred. This version is inconsistent with what is recorded in the FIR. While eyewitness Shivam denied the place of incident mentioned in the FIR, Shubham, the complainant, in his statement under Section 161 Cr.P.C., stated that the incident took place at the adjacent canal in Walinagar. However, according to the site plan, the incident is shown to have occurred in front of the house of one Shakeel Ahmad, and no canal is indicated therein. This discrepancy shows that there is no reliable eyewitness account in the case.

6. It has also been submitted that the second statement of the complainant was forwarded to the investigating officer with the assistance of an advocate. Similarly, eyewitness Ravindra Kumar reiterated that his statement was also sent with the help of a local counsel. The eyewitness Shivam has likewise stated that his CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 3 statement was recorded and sent by the advocate to the police. This casts doubt on the presence of the alleged eyewitnesses at the spot. Further, a false recovery of one country-made pistol and three empty cartridges has been shown at the pointing out of co- accused Jitendra Yadav, whereas nothing incriminating has been recovered from the applicant. It is contended that the applicant has been falsely implicated. The applicant has no criminal antecedents apart from the three cases disclosed in paragraph 40 of the bail application and in languishing in jail since 20.12.2022.

7. It is further submitted that co-accused Shiva Yadav @ Shamsher Yadav, who was assigned a similar role, has been enlarged on bail by a coordinate Bench of this Court vide order dated 14.07.2025 passed in criminal misc. bail application No. 5011 of 2025.

8. Per contra, learned counsel for the complainant and learned A.G.A. submit that co-accused Shiva Yadav was granted bail on account of concealment of his prior conviction in Sessions Trial No. 377A of 2008 arising out of Case Crime/FIR No. 667 of 2007 under Sections 307/34, 120-B IPC, P.S. Gomti Nagar, District Lucknow. He had been convicted vide judgment dated 09.02.2011 and sentenced to ten years’ imprisonment.

9. It is also pointed out that co-accused Munna Michael @ Afzal has not cross-examined any of the witnesses and has moved an application seeking recall of PW-1, PW-2, and PW-3. Applications are pending and have not been disposed of yet. Likewise, applications for recall of PW-1 have also been filed by co-accused Shiva Yadav, Jitendra Yadav and the present applicant Rinku Yadav, just to delay the trial.

10. It is, therefore, contended that until cross-examination of material witnesses is completed and recall applications under Section 311 Cr.P.C. moved by the applicant and other co-accused are decided, bail ought not to be granted. The crime is heinous in nature, supported by eye-witness accounts of a daylight murder. Oral CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 4 testimony is corroborated by medical evidence, which records four entry wounds and two exit wounds on the deceased. The allegations stand further substantiated by the injured witness’s statement recorded both during investigation and trial. Recovery of incriminating articles, including pistols, has been made from each of the four accused. Perused the record. From perusal of the record, it appears that a recall application under Section 311 Cr.P.C. was subsequently moved by the applicant seeking re-examination of PW-1. The learned trial court, however, kept the said application in abeyance vide order dated

11.09.2024, observing that examination of formal witnesses was in progress and recalling fact witnesses at that stage would disturb the sequence of trial and cause delay.

13. Thereafter, vide order dated 31.01.2025 passed in criminal misc. bail application No. 11048 of 2024, a coordinate Bench of this Court, after hearing both sides, sought a report from the trial court regarding the current status of trial. The order dated 31.01.2025 reads as follows: Heard Sri Atul Verma, learned counsel for the applicant and Sri Raj Vijay Singh, learned A.G.A. for the State and Sri Arun Singha, learned counsel for the informant. Learned counsel for the applicant has stated that all fact/ relevant witnesses have been examined in the present matter and in terms of order dated

06.05.2024, whereby the first bail application of the applicant was rejected, the present application may be disposed of. It has been informed at the bar that two applications under Section 311 CrPC have been filed on behalf of other accused persons which are pending since long and those applications have not been disposed of till date, therefore, it cannot be said that all fact/ relevant witnesses have been examined. Accordingly, list this case on 17.02.2025. CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 5 By the next date of listing, the learned Trial Court shall submit the report relating to the current status of trial by a detailed order so that the current status of trial could be understood properly. If any application under Section 311 CrPC is pending before the learned Trial Court, the fate of those application(s) would also be intimated and if those application(s) have not been decided, any appropriate order may be passed on those application(s) strictly in accordance with law. The Superintendent of Jail concerned is directed to provide the current medical report of the applicant as he is said to have been suffering from Brain Tuberculosis and is condition is not well, therefore, such report may be called from an expert from K.G.M.U. or from any other government hospital. Office is directed to provide the copy of this order to the learned Trial Court as well as the Superintendent of Jail concerned within three working days for its compliance. When the case is next listed, the name of Sri Arun Sinha, Advocate may be printed in the next cause list as the counsel for the informant.

14. In compliance with the aforesaid order, the trial court submitted its report dated 14.02.2025, which is on record.

15. A perusal of the report dated 14.02.2025 shows that the application under Section 311 Cr.P.C. filed by the applicant was again kept in abeyance on the ground that formal witnesses had not yet been examined. Another report dated 10.07.2025 sought in the case of co-accused Shiva Yadav indicates that 11 prosecution witnesses have already been examined and the matter is now fixed for further prosecution evidence. The applications under Section 311 Cr.P.C. moved by the applicant as well as co-accused remain pending. The coordinate Bench of this Court, while allowing bail to co-accused Shiva Yadav, has also taken note of the report dated

10.07.2025.

16. With respect to the objection raised by learned counsel for the complainant that bail of Shiva Yadav was granted owing to concealment of his conviction, it has been clarified on behalf of the applicant that the application for cancellation of Shiva Yadav’s CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 6 bail is still pending and yet to be decided. Further, such allegations pertain to co-accused and do not affect the present applicant.

17. The coordinate Bench of this Court granted bail to co-accused Shiva Yadav after taking into account the trial court’s report dated

10.07.2025. It was noted therein that all fact witnesses had already been examined, the applicant had no criminal antecedents, and though applications for recall were pending, no fact witness remained to be examined. The Court further observed that there was no likelihood of tampering with the evidence. While allowing bail, reliance was placed upon the judgments of the Hon’ble Supreme Court in Union of India v. K.A. Najeeb (AIR 2021 SC 712), Paras Ram Vishnoi v. Director, CBI (Criminal Appeal No. 693 of 2021 arising out of SLP (Crl) No. 3610 of 2020) and Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693, wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground.

18. In light of the aforesaid decisions of the Supreme Court, the bail order passed in favour of co-accused Shiva Yadav, and considering that the present applicant is in custody since 20.12.2022 without any criminal antecedents; the fact witnesses have already been examined (11 out of 20 prosecution witnesses examined); there is no real prospect of the trial concluding in the near future; and in view of the undertaking given on behalf of the applicant not to misuse the liberty and to cooperate with trial proceedings, this Court is of the view that the applicant deserves to be enlarged on bail. Accordingly, the bail application is allowed. Let the applicant Rinku Yadav involved in Case Crime No. No.434/2022, U/S-302 IPC PS- Kakori, District-Lucknow, be released on bail on his furnishing a personal bond and two sureties

20. CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 7 each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (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 in accordance with law. (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 IPC (now Section 209 of BNS).

21. It is clarified that the observations made in this order are confined to the present bail application and shall have no bearing on the merits of the trial. (Karunesh Singh Pawar,J.) 25, September, 2025 RC RAM CHANDER YADAV High Court of Judicature at Allahabad, Lucknow Bench

Aggarwal, learned counsel for the complainant.

2. Learned counsel for the applicant submits that since the informant and the fact witnesses have been examined, there is no chance of tampering the evidence. The applicant is in custody since

20.12.2022.

3. In the prosecution case, it is alleged that on 03.12.2022, the informant along with his two brothers, after completing their work, was returning home. During this time, the accused persons, namely Shiva Yadav @ Shamsher Yadav, Jitendra Yadav, and CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 2 Rinku Yadav (all three being brothers), along with Maaike, son of Shammi, allegedly opened indiscriminate fire at the elder uncle, Ram Jeevan, near Wali Nagar Canal. As a result, he sustained injuries and fell down. On hearing the commotion, several people gathered at the spot, but the assailants managed to escape in their four-wheeler while firing shots in the air. The injured was taken to the Trauma Centre, where the doctor declared him dead.

4. Learned counsel for the applicant submits that no reason or motive for committing the alleged offence has been assigned either in the FIR or in the statement of the complainant. The inquest was conducted the following day, i.e., 04.12.2022, in which the complainant himself was an inquest witness. However, in his opinion during the inquest, the complainant did not name any of the accused persons.

5. It has further been submitted that the alleged eyewitness, Shivam, has given a contradictory version, stating that initially, an accident took place wherein the vehicle of the deceased was hit by the Scorpio belonging to the accused persons, and thereafter, the alleged incident occurred. This version is inconsistent with what is recorded in the FIR. While eyewitness Shivam denied the place of incident mentioned in the FIR, Shubham, the complainant, in his statement under Section 161 Cr.P.C., stated that the incident took place at the adjacent canal in Walinagar. However, according to the site plan, the incident is shown to have occurred in front of the house of one Shakeel Ahmad, and no canal is indicated therein. This discrepancy shows that there is no reliable eyewitness account in the case.

6. It has also been submitted that the second statement of the complainant was forwarded to the investigating officer with the assistance of an advocate. Similarly, eyewitness Ravindra Kumar reiterated that his statement was also sent with the help of a local counsel. The eyewitness Shivam has likewise stated that his CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 3 statement was recorded and sent by the advocate to the police. This casts doubt on the presence of the alleged eyewitnesses at the spot. Further, a false recovery of one country-made pistol and three empty cartridges has been shown at the pointing out of co- accused Jitendra Yadav, whereas nothing incriminating has been recovered from the applicant. It is contended that the applicant has been falsely implicated. The applicant has no criminal antecedents apart from the three cases disclosed in paragraph 40 of the bail application and in languishing in jail since 20.12.2022.

7. It is further submitted that co-accused Shiva Yadav @ Shamsher Yadav, who was assigned a similar role, has been enlarged on bail by a coordinate Bench of this Court vide order dated 14.07.2025 passed in criminal misc. bail application No. 5011 of 2025.

8. Per contra, learned counsel for the complainant and learned A.G.A. submit that co-accused Shiva Yadav was granted bail on account of concealment of his prior conviction in Sessions Trial No. 377A of 2008 arising out of Case Crime/FIR No. 667 of 2007 under Sections 307/34, 120-B IPC, P.S. Gomti Nagar, District Lucknow. He had been convicted vide judgment dated 09.02.2011 and sentenced to ten years’ imprisonment.

9. It is also pointed out that co-accused Munna Michael @ Afzal has not cross-examined any of the witnesses and has moved an application seeking recall of PW-1, PW-2, and PW-3. Applications are pending and have not been disposed of yet. Likewise, applications for recall of PW-1 have also been filed by co-accused Shiva Yadav, Jitendra Yadav and the present applicant Rinku Yadav, just to delay the trial.

10. It is, therefore, contended that until cross-examination of material witnesses is completed and recall applications under Section 311 Cr.P.C. moved by the applicant and other co-accused are decided, bail ought not to be granted. The crime is heinous in nature, supported by eye-witness accounts of a daylight murder. Oral CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 4 testimony is corroborated by medical evidence, which records four entry wounds and two exit wounds on the deceased. The allegations stand further substantiated by the injured witness’s statement recorded both during investigation and trial. Recovery of incriminating articles, including pistols, has been made from each of the four accused. Perused the record. From perusal of the record, it appears that a recall application under Section 311 Cr.P.C. was subsequently moved by the applicant seeking re-examination of PW-1. The learned trial court, however, kept the said application in abeyance vide order dated

11.09.2024, observing that examination of formal witnesses was in progress and recalling fact witnesses at that stage would disturb the sequence of trial and cause delay.

13. Thereafter, vide order dated 31.01.2025 passed in criminal misc. bail application No. 11048 of 2024, a coordinate Bench of this Court, after hearing both sides, sought a report from the trial court regarding the current status of trial. The order dated 31.01.2025 reads as follows: Heard Sri Atul Verma, learned counsel for the applicant and Sri Raj Vijay Singh, learned A.G.A. for the State and Sri Arun Singha, learned counsel for the informant. Learned counsel for the applicant has stated that all fact/ relevant witnesses have been examined in the present matter and in terms of order dated

06.05.2024, whereby the first bail application of the applicant was rejected, the present application may be disposed of. It has been informed at the bar that two applications under Section 311 CrPC have been filed on behalf of other accused persons which are pending since long and those applications have not been disposed of till date, therefore, it cannot be said that all fact/ relevant witnesses have been examined. Accordingly, list this case on 17.02.2025. CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 5 By the next date of listing, the learned Trial Court shall submit the report relating to the current status of trial by a detailed order so that the current status of trial could be understood properly. If any application under Section 311 CrPC is pending before the learned Trial Court, the fate of those application(s) would also be intimated and if those application(s) have not been decided, any appropriate order may be passed on those application(s) strictly in accordance with law. The Superintendent of Jail concerned is directed to provide the current medical report of the applicant as he is said to have been suffering from Brain Tuberculosis and is condition is not well, therefore, such report may be called from an expert from K.G.M.U. or from any other government hospital. Office is directed to provide the copy of this order to the learned Trial Court as well as the Superintendent of Jail concerned within three working days for its compliance. When the case is next listed, the name of Sri Arun Sinha, Advocate may be printed in the next cause list as the counsel for the informant.

14. In compliance with the aforesaid order, the trial court submitted its report dated 14.02.2025, which is on record.

15. A perusal of the report dated 14.02.2025 shows that the application under Section 311 Cr.P.C. filed by the applicant was again kept in abeyance on the ground that formal witnesses had not yet been examined. Another report dated 10.07.2025 sought in the case of co-accused Shiva Yadav indicates that 11 prosecution witnesses have already been examined and the matter is now fixed for further prosecution evidence. The applications under Section 311 Cr.P.C. moved by the applicant as well as co-accused remain pending. The coordinate Bench of this Court, while allowing bail to co-accused Shiva Yadav, has also taken note of the report dated

10.07.2025.

16. With respect to the objection raised by learned counsel for the complainant that bail of Shiva Yadav was granted owing to concealment of his conviction, it has been clarified on behalf of the applicant that the application for cancellation of Shiva Yadav’s CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 6 bail is still pending and yet to be decided. Further, such allegations pertain to co-accused and do not affect the present applicant.

17. The coordinate Bench of this Court granted bail to co-accused Shiva Yadav after taking into account the trial court’s report dated

10.07.2025. It was noted therein that all fact witnesses had already been examined, the applicant had no criminal antecedents, and though applications for recall were pending, no fact witness remained to be examined. The Court further observed that there was no likelihood of tampering with the evidence. While allowing bail, reliance was placed upon the judgments of the Hon’ble Supreme Court in Union of India v. K.A. Najeeb (AIR 2021 SC 712), Paras Ram Vishnoi v. Director, CBI (Criminal Appeal No. 693 of 2021 arising out of SLP (Crl) No. 3610 of 2020) and Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693, wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground.

18. In light of the aforesaid decisions of the Supreme Court, the bail order passed in favour of co-accused Shiva Yadav, and considering that the present applicant is in custody since 20.12.2022 without any criminal antecedents; the fact witnesses have already been examined (11 out of 20 prosecution witnesses examined); there is no real prospect of the trial concluding in the near future; and in view of the undertaking given on behalf of the applicant not to misuse the liberty and to cooperate with trial proceedings, this Court is of the view that the applicant deserves to be enlarged on bail. Accordingly, the bail application is allowed. Let the applicant Rinku Yadav involved in Case Crime No. No.434/2022, U/S-302 IPC PS- Kakori, District-Lucknow, be released on bail on his furnishing a personal bond and two sureties

20. CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2024 7 each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (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 in accordance with law. (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 IPC (now Section 209 of BNS).

21. It is clarified that the observations made in this order are confined to the present bail application and shall have no bearing on the merits of the trial. (Karunesh Singh Pawar,J.) 25, September, 2025 RC RAM CHANDER YADAV High Court of Judicature at Allahabad, Lucknow Bench