IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION NO.3157/2019 Between:
Athaulla @ Shaik Athaulla S/o late Shaik Abdul Rehaman Aged about 32 years R/at Janatha Colony Akhil Building, I Circle Sulibele, Hoskote Taluk Bengaluru Rural District-562129. … Petitioner (By Sri K. Ram Singh, Advocate) And:
State of Karnataka by Hennur Police Station Bengaluru-560043 Represented by Government Pleader High Court of Karnataka Bengaluru-560001. …Respondent (Sri M. Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C pleased to enlarge the petitioner on bail in Cr.No.213/2018 of Hennur Police Station, Bengaluru City for the offence punishable under Section 302 read with Section 34 of IPC and etc., This Criminal Petition coming on for Orders this day, the Court delivered the following:
O R D E R This petition has been filed by the petitioner- accused No.1 under Section 439 of Cr.P.C to enlarge him on bail in Crime No.213/2018 of Hennur Police Station, Bengaluru for the offence punishable under Section 302 read with Section 34 of IPC.
2. I have heard the learned counsel for the petitioner/accused No.1 and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that the complainant’s widow sister is the 4th daughter to the complainant’s parents and she was residing with the mother of the complainant at Sadhiq Layout. She was working as a teacher. When the complainant’s mother was not keeping well she took her to the hospital on 20.07.2018 at about 4.00 a.m. The complainant’s brother i.e., the petitioner in Criminal Petition No.9646/2018 and his friend accused No.2, i.e., the petitioner in Criminal Petition No.7040/2018 had come near the house and asked for water to drink and to take bath. The hands of accused No.1 were stained with blood and he went to take bath. When the complainant asked accused No.2, he told that accused No.1 had been to the house of the deceased to give some amount; accused No.1 went inside the house and he was standing outside the house and after 25 minutes accused No.1 told him to leave soon. Subsequently due to suspicion, the complainant went to the house of the deceased and found that the door was open. When he entered the house along with his relative, they found that the deceased was lying on the cot with bleeding injuries and they also saw the knife between the ears and eyes of the deceased. On the basis of the said complaint, a case has been registered.
4. It is the submission of learned counsel for the petitioner-accused No.1 that there are no eye witnesses to the alleged incident. The entire case based on circumstantial evidence. Earlier petitioner-accused No.1 approached this Court in Criminal Petition No.9646/2018 the said petition came to be dismissed. Subsequently, the trial was fixed and on 23.09.2019 PWs.1 and 2 have been examined. They are the main witnesses to the case on hand before whom the extra judicial confession has been made by accused No.1. They have not supported the case of the prosecution and they have been treated as hostile. The accused is languishing in jail since more than one year four months. Under the said changed circumstances the present petition has been filed. He further submitted that there are no serious overt acts as against petitioner/accused No.1. It is further submitted that accused No.2 has been already enlarged on bail and he is also regularly attending the trial. He is ready to abide by the conditions and ready to offer surety. On these grounds, he prays to allow the petition and released the petitioner/accused No.1 on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the entire case rest on circumstantial evidence and PWs.1 and 2 are the material witnesses before whom the accused No.2 has made an extra judicial confession. It is further submitted that PWs.1 and 2 are none other than the relative of accused No.1 and as such they have not supported the case of the prosecution. It is his further submission that earlier petitioner approached this Court and this Court by considering facts and circumstances has dismissed the petition filed by accused No.1. Under the said facts and circumstances, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
7. On close reading of the contents of the complaint and other materials, it shows that the entire case rest on circumstantial evidence and there are no eye witnesses to the alleged incident. It is rest on extra judicial confession said to have been made by accused No.2 in the presence of PW.1-complainant. Learned counsel for the petitioner-accused made available the certified copy of the deposition of PWs.1 and 2, who are the main material witnesses in the case. But they have not supported the case of the prosecution and they have been treated as hostile. Even when they have cross- examined by the learned counsel for the prosecution, nothing has been elicited so as to substantiate the case of the prosecution. Under such changed circumstances accused No.2 has been released on bail and he is regularly attending the trial. In that light, petition is allowed.
8. Petitioner/accused No.1 is enlarged on bail in Crime No.213/2018 of Hennur Police Station for the offence punishable under Section 302 read with Section 34 of IPC subject to the following conditions:
1. Petitioner/accused No.1 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakh only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not tamper with the prosecution evidence directly or indirectly.
3. He shall be regular in attending the trial till trial is concluded. If he fails to attend the trail, the Court below can take him to custody.
4. He shall not leave the jurisdiction of the Court without prior permission.
5. He shall mark his attendance once in a month on every 1st till the trial is concluded.
6. He shall be regular in attending the trial.
ssb Sd/-
JUDGE