IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL PETITION No.7215/2019 BETWEEN 1. SANTHOSHA @ GOWDA S/O MALLESHA AGED ABOUT 24 YEARS R/AT: No.9/368, EAST END MAIN ROAD NEW ARASY COLONY, JAJAYANAGARA 9TH BLOOK BENGALURU-560 041 2. SURYA KUMAR @ SOORI @ SILENT S/O SRINIVASA AGED ABOUT 24 YEARS R/AT NO.489, 12TH CROSS WEAVERS COLONY, BHANNERGHATTA ROAD BENGALURU-560 083 (BY SRI K.RAJESH RAO, ADVOCATE) AND THE STATE BY MICO LAYOUT P.S.
REPRESENTED BY GOVERNMENT PLEADER HIGH COURT OF KARNATAKA BENGALURU-560001 (BY SRI K.NAGESHWARAPPA, HCGP) …PETITIONERS …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF Cr.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.148/2018 OF MICO LAYOUT POLICE STATION, BENGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners, who are accused Nos.2 and 3 have filed this successive bail petition under Section 439 of Code of Criminal Procedure, 1973 (Cr.P.C.) for grant of regular bail.
2. Petitioners are accused in Crime No.148/2018 registered by the Mico Layout Police, Bengaluru, which is pending on the file of the LXIV Additional City Civil and Sessions Judge, C.C.H-65, Bengaluru, for the offence punishable under Section 302 read with 34 IPC.
3. The case of the prosecution, in brief, is that on 13.05.2018, on the information of the wife of the deceased, the Police registered a case in Crime No.148/2018 for the offence punishable under Section 302 of IPC. During the course of investigation, the Police have arrested three accused persons namely, accused No.1- Nandakumar @ Nannu, accused Nos.2 and 3, the petitioners herein. After the investigation, they were produced before the Magistrate and were remanded to the judicial custody. Since then, they are in the custody. Later, the case was committed to the Sessions Court. The accused persons including the petitioners filed Criminal Petition No.9577/2018 under Section 439 of Cr.P.C. before this Court, which came to be rejected on 08.05.2019. Hence, the petitioners-accused Nos.2 and 3 are before this Court in this successive bail petition.
4. Learned counsel for the petitioners contended that there is no eyewitness to the alleged incident. The incident took place in the midnight of 22.05.2018 at 12.20 P.M. All the eyewitnesses are planted by the Police and the trial has already begun before the Court of Sessions. The other witnesses have turned hostile. It is clear from the evidence, that there is no overt act attributed against these petitioners for having committed the offence under Section 302 of IPC or any other offence. Therefore, prayed for grant of bail.
5. Per contra, learned High Court Government Pleader contended that there is material placed on record against the petitioners. Except one eyewitness i.e. PW.1, other witness have not been examined. PWs.3 and 5 are the panch witness and they have supported recovery of knife from accused No.1 The recovery witnesses and other weapons recovered from the petitioners have not yet been examined. The other eyewitnesses are also not examined. Therefore, at this stage, if the petitioners are granted bail, there is every possibility of petitioners tampering the witnesses. He further contended that the prosecution is yet to examine the scientific officer and other recovery panch witnesses. Hence, he prayed for dismissal of the petition.
6. Upon hearing the arguments learned counsel for the petitioners and learned High Court Government Pleader, admittedly this petition filed by the petitioners is a second bail petition. The earlier criminal petition filed by them came to be rejected by this Court on 08.05.2018. At that time, this Court considered the arguments addressed by learned counsel for the petitioners and this petition being the successive bail petition, the petitioners have not put- forth any new ground and submitted that the evidence adduced by the prosecution does not show that the petitioners have committed the offence. In this regard, learned counsel for the petitioners have produced the deposition of the witnesses examined by the Trial Court. On perusal of the deposition, PW.1-Mohan, who is said to be the eyewitness has turned hostile. PW.2-Sudha, the wife of the deceased has partly supported the case of the prosecution. PW.3-Krishnappa is the panch witness to the recovery as well as eyewitness, who has also not supported the case. PW.4-Prabhakara, another panch witness to the spot panchaname has turned hostile. PW.5- Karthik, the recovery witness has supported the case. The Police have recovered the knife on the voluntary statement of accused No.1-Nandakumar, who is not before this Court. Learned counsel for the petitioners submits that the further trial has been fixed on 14.11.2019. There are four eye-witnesses mentioned in the charge sheet, not yet examined. Apart from the eyewitnesses, the prosecution is yet to examine the scientific officer and the investigation officers and other recovery panch witnesses. Therefore, without examination of those witnesses, this Court cannot jump into the conclusion that there is no evidence adduced against these petitioners. When the trial is in progress and the prosecution is yet to examine other witnesses, at this stage, if bail is granted, there is every possibility of petitioners tampering the witnesses and terrorizing the witnesses are not ruled out.
7. Considering the fact that the further trial is pending, I do not find that there is any additional or new ground made out by the petitioners to enlarge them on bail. Hence, the petition being devoid merit is liable to be dismissed. Accordingly, the petition is dismissed.
Sd/- JUDGE mv