The court emphasized that the material witnesses turning hostile and the lack of prima facie material warranted the grant of bail to the accused in a murder case.

JUDGMENT/ORDER

H.P. Sandesh, J. - This petition is filed under Section 439 of Cr.P.C., seeking regular bail of the petitioner/accused in Crime No.219/2021 of Siddapura Police Station, Bengaluru City, for an offence punishable under Section 302 of IPC.

2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent/State.

3. This is a successive bail petition filed by the petitioner/accused. This Court earlier vide order dated 21.07.2022 rejected the bail petition in Crl.P.No.288/2022, wherein, in paragraph No.6, this Court has observed that C.W.2 is the daughter, who was present at the time of committing the murder and witnessed the incident of assault. The post-mortem report also discloses that there were ten injuries all over the body and also taken note of CWs.2 to 4 are the direct evidence available against the accused.

4. The learned counsel appearing for the petitioner would submit that CWs.2 to 4 - eye witnesses have been examined before the Trial Court and they have not supported the case of the prosecution. Even though cross-examined those witnesses, nothing is elicited in the cross-examination. When eye witnesses have turned hostile, this Court can enlarge the petitioner on bail.

5. Per contra, the learned High Court Government Pleader appearing for the State would submit that merely because the eye witnesses have turned hostile, this Court cannot grant bail when an heinous offence of murder is committed. Hence, he is not entitled for bail.

6. Having heard the respective counsel and also on perusal of the material available on record, no doubt, this Court earlier rejected the bail petition in Crl.P.No.288/2022, wherein, an observation is made that the direct evidence is available before the Court viz., CWs.2 to 4. The learned counsel appearing for the petitioner also produced the copy of the order sheet, wherein, CW.4 is not examined and other witnesses have been examined. On perusal of the deposition, all the witnesses have turned hostile and nothing is elicited in the cross-examination of the hostile witnesses. When such being the material available on record and the petitioner is in custody from 2021 and when the material witnesses have turned hostile, keeping him in custody amounts to curtailing the liberty of a person when prima facie material is not found. Hence, it is appropriate 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. Hence, I pass the following:-

ORDER

The Petition is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No.219/2021 of Siddapura Police Station, Bengaluru City, for an offence punishable under Section 302 of IPC, subject to the following conditions:

(i) The petitioner shall execute his 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.