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Judgment
H.S. Kempanna, J.—The petitioners who are facing trial for the offences under Sections 120B, 364 r/w. 149 of IPC, 365 r/w. 149 of IPC, 302 r/w. 34 of IPC as against A.1 and A.4 and Section 201 r/w. 149 of IPC (Note:-the learned Sessions Judge shall take note of this and frame the charge after hearing both the learned Special Public Prosecutor and the learned counsel for the accused) in S.C. No. 801/2010 on the file of the FTC-VI, Bangalore City, are before this Court praying for releasing them on bail. It is the case of the prosecution that these petitioners and seven others in the case had hatched a conspiracy to finish off the deceased Padma Kutti on account of the property dispute that existed between the deceased on the one hand and the accused on the other hand. In pursuance of the said conspiracy hatched by them, on 8.10.2009 A.1 to A.4 kidnapped the deceased from BBMP office, LIC colony, Bangalore, thereafter, brought her near Sharada theatre situated near the head office of Bangalore City Corporation where A.5 to A.9 joined A.1 to A.4 and thereafter they took the deceased in two different vehicles to the farm house of A. 1 to A.4 situated at Husgur located on Bangalore - Hosur Road and in the said farm house they committed her murder by assaulting with chopper and after committing the murder in order to cause disappearance of the said murder to screen themselves from legal punishment, they carried the dead body in a gunny bag near Ganjam in Srirangapatna and threw the body in Cauvery river. Thus they have committed the aforementioned offences.
Learned counsel for the petitioners submitted, when the case was at the crime stage the application of these two petitioners had been rejected in Crl. P. No. 3663/2010 by this Court. After final report came to be filed, they again approached this Court in Crl. P. Nos. 425/2013 and 285/2012 and the said two applications also came to be dismissed. Thereafter, the case proceeded with framing of charges and examination of the witnesses. Charge was framed on 3.11.2012. 61 witnesses are cited in the charge sheet. Among them as on today nine witnesses have been examined as P.Ws. 1 to 9. Among them, examination-in-chief of P.W. 1 is not completed and it is posted for further evidence in chief. They submitted, insofar as P.Ws. 2 to 9 are concerned, they are the material witnesses connecting the accused with the alleged offences. They have not supported the case of the prosecution. Their specific emphasis is, the entire case rests upon these witnesses who have now turned hostile. As on today, for want of Presiding Officer the trial has not proceeded ahead. The accused are in custody since 17.10.2009. In view of the material witnesses, who have been examined in the case as P.Ws. 2 to 9, have turned hostile, even if other witnesses cited on behalf of the prosecution are examined, that may not establish the charge against the accused. Therefore, in the circumstances, the petitioners be released on bail.
Learned Special Public Prosecutor opposed the application of these two petitioners on the ground that their applications are rejected by this Court earlier and P.W. 1 who is daughter of the deceased is yet to be examined in chief completely and cross-examined and there are other witnesses whose examination would establish the charge against the accused. Therefore, the petition be dismissed. Material now placed on record reveals, P.Ws. 2 to 9 are the material witnesses in the case to establish the charge leveled against the accused. They have turned hostile to the prosecution. This is not disputed to by the learned Spl. P.P. The contention of the learned Spl. P.P. is, P.W. 1 who is yet to be examined-in-chief in full and cross-examined, her evidence coupled with examination of other witnesses cited in the charge sheet is sufficient to establish the charge against the accused. On the other hand, it is the contention of the learned counsel for the petitioners that even if they support the case of the prosecution, in view of P.Ws. 2 to 9 having turned hostile, their examination may not ensure to the benefit of prosecution to establish the charge leveled against the accused. Since the material witnesses P.Ws. 2 to 9 have turned hostile to the prosecution, as the accused are in custody since 17.10.2009, as the presiding officer has not yet been posted to the Court where they are facing trial, in the peculiar facts of this case, there is no justification to decline the request of the petitioners. Accordingly, I proceed to pass the following:--
ORDER
Both the petitions are allowed.
The petitioners are ordered to be released on bail on each of them executing a personal bond in a sum of Rs. 1 lakh with one surety for the likesum to the satisfaction of the learned trial Judge subject to the following conditions:--
They shall not tamper with the prosecution witnesses.
They shall attend the Court on all the dates of hearing.
They shall mark their attendance before the respondent/police on every Sunday between 10 a.m. and 3 p.m. till the conclusion of the trial.