The court granted bail due to lengthy custody, similarity of allegations with a co-accused who received bail, and lack of evidence suggesting witness tampering.

ORDER :

S. Vishwajith Shetty, J.

1. Accused No.3 in S.C.No.27/2019 pending before the Court of Principal District and Sessions Judge, Uttara Kannada, Karwar, arising out of Crime No.74/2019 registered by Kumta Police Station, for the offences punishable under 364, 120(b), 302, 201 r/w Section 34 of INDIAN PENAL CODE , is before this Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( BNSS 2023) seeking regular bail.

2. Heard the learned counsel for the parties.

3. FIR in Crime No.74/2019 registered by Kumta Police Station initially for the offence punishable under Section 363 of IPC against unknown persons based on the first information dated 17.10.2018 received from Smt.Saraswati wife of deceased Vishweshwar Bhat. During the course of investigation, petitioner was arrested on 28.10.2018. After completing investigation, charge sheet has been filed against three persons and petitioner is arraigned as accused no.3 in the charge sheet. His bail application filed before the Jurisdictional Sessions Court was rejected and therefore, he had earlier approached this Court in Criminal Petition No.100313 of 2021, which was rejected on 22.02.2021. Thereafter, he had filed a fresh bail application before the trial Court in SC No.27/2019, which was rejected on 18.04.2023. Therefore, he is before this Court in the successive bail application.

4. Learned counsel for the petitioner submits that petitioner is in custody in the present case for the last nearly 7 years. Allegation against accused no.2 and the petitioner are similar in the charge sheet. Accused no.2 has been granted regular bail in the present case by the Jurisdictional Sessions Court by order dated 9.09.2019. The said order has been confirmed by this Court in Criminal Petition No.101324 of 2020, disposed of on 12.02.2021. All the material charge sheet witnesses are now examined in the present case and he accordingly prays to allow the petition.

5. Per contra learned HCGP has opposed the petition. She submits that petitioner’s earlier bail application in Criminal Petition No.100313 of 2021 was rejected on merits and therefore unless change in circumstances is pointed out, this successive application cannot be entertained. She submits that trial in the case is at the fag end, in the event the petitioner is enlarged on bail, there are chances of the trial being delayed if he does not cooperate before the trial court. She submits that petitioner is a person with criminal antecedent and accordingly, prays to dismiss the petition.

6. In reply, learned counsel for the petitioner submits that there is only one case registered against the petitioner for offence punishable under Section 380 of IPC and except the said case, the petitioner has no other criminal antecedent.

7. In the first information, which is submitted by the wife of deceased Vishweshwar Bhat, she has stated that on 16.10.2018, one person came to meet her husband, who was Purohit by avocation and had taken her husband along with him for the purpose of doing some pooja and thereafter, her husband had not returned. Therefore, FIR was registered for offence punishable under Section 363 of IPC against unknown person on 17.10.2018. During the course of investigation, accused nos.1 and 2 were arrested and based on their confession statement, accused no.3 was subsequently arrested. In the charge sheet, it is alleged that accused no.1 had ill-will against the deceased having regard to a dispute between them with regard to partition of joint family property. Therefore, accused no.1 intended to eliminate deceased Vishweshwar Bhat. Accused no. 1 had conspired with accused nos.2 and 3 to commit the murder of Vishweshwara Bhat and had assured to pay a sum of Rs.30,000/- to accused nos.2 and 3.

8. On 16.10.2018, accused no.3 went to the house of Vishweshwara Bhat and on the pretext of performing a pooja, he asked Vishweshwar Bhat to accompany him in his motorbike. Accused nos.1 and 2 followed the motorbike of accused no.