IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6350/2018 BETWEEN:
Basha, S/o Ameer John, Aged about 23 years, R/at 2nd Cross, Karibasappa Colony, Gandhinagar, Tiptur Town, Tumkur District – 06.
(By Sri. Pratheep K.C., Advocate) AND:
The State of Karnataka, Represented by Tiptur Town Police Station, Tumkur District.
Represented by its State Public Prosecutor, High Court of Karnataka, Bangalore – 01.
(By Sri. M.Divakar Maddur, HCGP) ...Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.70/2015 (S.C.No.10027/2015) of Tiptur Town Police Station, Tumkur District for the offences P/U/S 396, 201 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner/accused No.4 under Section 439 of Cr.P.C., seeking his release on bail in Crime No.70/2015 (S.C. No.10027/2015) of Tiptur Town Police Station for the offences punishable under Sections 396 and 201 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that the complainant has three brother-in-laws and all of them were doing Jewellery business. Deceased was not yet married and was living alone in the house as such, the complainant’s children used to stay in the said house. It is further alleged that on 18.05.2018, on holidays, they have gone to the house of the deceased and stayed there. At about 11.00 p.m., both the children slept in the room while going they noticed that the deceased along with other persons was consuming the alcohol. At about 2.00 a.m., they heard screaming voice of the deceased immediately, they went to the said place and there they noticed that the leg of the deceased was tied with towel and three persons were standing. Immediately, the said persons by seeing them, made them to enter into another room and locked subsequently, they heard the noise of a vehicle coming and going. They opened the back door of the room and saw that their uncle was lying on the floor with a towel tied to his neck and some blood was also oozing. Immediately, they came out and informed the same fact and by noticing the same, a complaint has been registered.
4. It is the submission of the learned counsel for the petitioner that already accused No.2 has been released on bail. On the ground of parity, the present petitioner is entitled to be released on bail. It is further submitted that the prosecution has relied upon two witnesses one Hruthik R and another Roshan R as a last seen eye-witnesses. They have been examined before the Court as PWs.1 and 2 and they have not supported the case of the prosecution and they have been treated as hostile. Further it is submitted that the prosecution has also got examined PWs.3 to 7, they have also not supported the case of the prosecution. Even the recovery mahazar panchas have also not supported the case of the prosecution. It is further submitted that since four years the petitioner/accused No.4 is languishing in jail. Only the official witnesses have to be examined and no useful purpose is going to be served if the petitioner/accused No.4 is kept in jail. Further it is submitted that the petitioner/accused No.4 is ready to abide by the conditions imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition and to release the petitioner/accused No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the said witnesses have not supported the case of the prosecution. There is ample material to show that the treasury and the gold articles were recovered at the instance of accused No.3 and the knife, which has been used for the purpose of commission of offence has been recovered at the instance of accused No.4. The FSL report and the Post-Mortem report also supports the case of the prosecution. The other witnesses are yet to be examined. Under such circumstance, if the petitioner/accused No.4 is enlarged on bail, he may tamper with the prosecution evidence and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by both the learned counsel appearing for the parties and perused the records.
7. On going through the contents of the records, it indicates that earlier, this petitioner/accused No.4 has approached this Court for his release on bail in Crl.P. No.181/2016, which has been dismissed as withdrawn and Crl.P. No.7965/2016, which came to be withdrawn with a liberty to file a fresh petition. Thereafter, again he filed Crl.P. No.6484/2017, which was disposed of on merits and the Court observed that it is not a stage to allow the petition to grant regular bail to the petitioner as another witness yet to be examined, who is said to be one of the eye-witnesses to the alleged incident and the learned counsel for the petitioner had also made available the evidence of two eye-witnesses i.e., PWs.1 and 2. They have been examined before the Court below who have not supported the case of the prosecution and they are treated as hostile. Even the recovery mahazar witnesses have also not supported the case of the prosecution.
8. Under the said facts and circumstances, I feel that only witness, who has been left is the official witness and no useful purpose is going to be served if the petitioner/accused No.4 is kept in jail and by imposing some stringent conditions, if the petitioner/accused No.4 is ordered to be released on bail, it is going to meet the ends of justice.
9. In the light of discussions held by me above, petition is allowed. Petitioner/accused No.4 is ordered to be released on bail in Crime No.70/2015 (S.C. No.10027/2015) of Tiptur Town Police Station for the offences punishable under Sections 396 and 201 of IPC subject to the following conditions:
1. Petitioner/accused No.4 shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance once in a month i.e., 1st of every month between 10.00 a.m., and 5.00 p.m., before the jurisdictional police station, till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall regular in attending the trial.
6. He shall not indulge in similar type of criminal activities.
Sd/- JUDGE VBS