Kamal R vs The State

This petition is filed by the petitioner-accused No.4 under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under

Sections 302 and 201 read with Section 34 of IPC registered in respondent Police Station Crime No.213/2017.

The brother of the deceased is the complainant in this case. The complainant lodged the complaint on 30.8.2017 stating that his deceased

brother, who had gone out of the house, on 29.8.2017 had not come back. Thereafter, another brother of the complainant went to Maya Bazar

Government School ground to search the deceased brother. The deceased was lying there and he was not in a position to speak. There

afterwards, he was taken to hospital and the Doctor in St. Philomina''''s Hospital after examining the deceased declared that he is dead. On the

basis of the first complaint, UDR came to be registered under Section 174(c) of Cr.P.C. in UDR No.32/17. Subsequently, the complainant filed

another complaint after lapse of 16 days wherein the names of present petitioner along with three other persons mentioned that they are the

assailants of his deceased brother. On the basis of the same, the petitioner has been arrayed as accused No.4 and he has been apprehended by

the police.

I have heard the learned Counsel appearing for the petitioner-accused No.4 and the learned High Court Government Pleader appearing for the

respondent-State.

I have perused the averments made in the bail petition, FIR, complaint, charge sheet materials and the other materials on record. I have also

perused the order passed by the Court below rejecting the bail application.

Learned HCGP during the course of hearing of the petition made submission that there are four eye witnesses to the incident. They are C.Ws.2

to 5. In their statement, C.Ws.2 to 5 have clearly stated that accused pick up quarrel with deceased and thereafter, committed murder of the

deceased. When there are eye witnesses to the incident and the involvement of the petitioner is spoken to by them, the petitioner is not entitled to

be granted with bail.

The prosecution has introduced the four eye witnesses to the incident and I have perused the statement of the said witnesses. The statement of

C.Ws.2 and 3 came to be recorded on 14.9.2017 i.e., after the lapse of nearly 16 days from the date of alleged the incident. The statement of the

other two eye witnesses came to be recorded on 16.9.2017 i.e., after the lapse of 18 days. Therefore, at this stage, if really C.Ws.2 to 5 are said

to be the eye witnesses to the incident, their statement could have been recorded at the earliest point of time i.e., immediately after the alleged

incident. The conduct of the eye witnesses is also material in keeping silent for the period of 16 and 18 days respectively in giving statement before

the police. The petitioner contends that he is innocent, he has been falsely implicated in the case. He has undertaken that he is ready to abide by

any condition that may be imposed by this Court. Investigation of the case is completed and the charge sheet is also filed. As there is prolonged

delay of nearly 16 days for C.Ws.2 and 3 and 18 days for C.W.4 and 5 in giving their statement before the police, I am of the opinion, that it is a

fit case to exercise discretion in favour of the petitioner. Apart from that, perusing the prosecution material, in the voluntary statement given by the

petitioner herein, the overt act is that he caught hold the deceased and the other accused assaulted the deceased.

Therefore, the petition is allowed. Petitioneraccused No.4 is ordered to be released on bail for the offences punishable under Sections 302 and

201 read with Section 34 of IPC registered in respondent Police Station Crime No.213/2017, subject to the following conditions:

i. Petitioner shall execute a personal bond for the sum of Rs.1,00,000/- and furnish one surety for the likesum to the satisfaction of the concerned

Court.

ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.

iii. Petitioner shall appear before the concerned Court regularly.