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Judgment
H.P. Sandesh, J
This is a successive bail petition filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.173/2021 of Periyapatna Police Station, Hunusur Sub-Division, Mysuru District, for the offence punishable under Section 302 of IPC.
Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
Learned counsel appearing for the petitioner would submit that this Court earlier given liberty to approach this Court after examination of C.Ws.2 to 4, who are eye witnesses in Crl.P.No.4670 of 2023 vide order dated 28.06.2023. Learned counsel would submit that C.Ws.2 to 4 have been examined as P.Ws.1 to 3 and they have not supported the case of the prosecution and though they saw the victim lying at the spot, but did not witness the committing of murder by this petitioner and the material witnesses have turned hostile and nothing is elicited in the cross-examination of P.Ws.1 to 3. Learned counsel would further submit that this petitioner being the father of the victim girl has been implicated in the case and he is in judicial custody since from 2021 and no material is placed on record against the petitioner. Hence, he may be enlarged on bail.
Per contra, learned HCGP for the respondent-State would submit that there are other witnesses to be examined before the Trial Court and the eye witnesses, who have been examined before the Trial Court have turned hostile.
Having heard the learned counsel for the petitioner and learned HCGP for the respondent-State and also considering the mater on record, this Court earlier rejected the bail petition of this petitioner in Crl.P.No.4670 of 2023 vide order dated 28.06.2023 and also given liberty to the petitioner to approach this Court after examination of eye witnesses i.e., C.Ws.2 to 4. This Court also directed the Trial Court to dispose of the matter expeditiously vide order dated 28.06.2023.
Now, learned counsel for the petitioner brought to notice of this Court the evidence of P.Ws.1 and 2 i.e., eye witnesses who are relative witnesses of the accused and victim and the accused is none other than the father of the victim and other witness P.W.3 is an independent witness and having considered the evidence of these witnesses, they have not supported the case of the prosecution, particularly with regard to witnessing inflicting of injury to the victim by the accused. When such material is available before the Court and when the eye witnesses have been examined before the Trial Court and they have not supported the case of the prosecution, this Court cannot sit and appreciate the evidence. However, looking into the evidence of the eye witnesses i.e., P.Ws.1 to 3, it is a fit case to exercise the powers under Section 439 of Cr.P.C., subject to imposing certain conditions to protect and safeguard the interest of the prosecution. The Trial Court can appreciate the evidence available on record, while considering the matter on merits and there is no need to continue the petitioner in judicial custody, consequent upon the evidence of eye witnesses i.e., P.Ws.1 to 3. Hence, I pass the following:-
ORDER
The Petition is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No.173/2021 of Periyapatna Police Station, Hunusur Sub-Division, Mysuru District, for the offence punishable under Section 302 of IPC, subject to the following conditions:
(i) The petitioner shall execute personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court, till the case registered against him is disposed of.