Point of Law: Possibility of petitioner tampering with the prosecution evidence is found to be without substance as the material witnesses including complainant has already been examined in the case.

JUDGMENT :

Satyen Vaidya, J.

Petitioner has approached this Court for grant of bail in case FIR No. 123/2020, dated 05.08.2020, registered under Section 302 of the Indian Penal Code and Section 25-54-59 of the Indian Arms Act, at Police Station Theog, District Shimla, H.P.

2. Petitioner is in custody since 05.08.2020.

3. Petitioner has prayed for grant of bail on the ground that, though, he has been charged for commission of offence under Section 302 of the Indian Penal Code, but there is no legal evidence to support such charge. It is submitted on behalf of the petitioner that despite lapse of more than two years and six months since his custody, the trial has not been concluded. Petitioner cannot be allowed to remain in custody for indeterminate period. He has a right to speedy trial. It is further submitted that all the material witnesses have already been examined and only the police officials remain to be examined. As per petitioner, the sole eye witness of the case has not supported the charge framed against petitioner. Petitioner is stated to be permanent resident of Village Kello Jubbar, P.O. Mahori, District Shimla, H.P. It is submitted that there is no likelihood of his absconding or fleeing from the course of justice.

4. On the other hand, the prayer for bail on behalf of the petitioner has been opposed by learned Additional Advocate General, on the ground that the allegations against petitioner are serious in nature. In the event of release of petitioner on bail, the trial may be prejudiced. He may tamper with the prosecution evidence.

5. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

6. Petitioner has been charged for committing murder of his wife by firing a gun shot at her on 04.08.2020.

7. Noticeably, the case was registered against the petitioner initially under Sections 336 & 304 of IPC and Section 25 of the Indian Arms Act. The daughter of the petitioner is the complainant. In her initial version to the police, she had stated that her mother (deceased) had pointed the gun towards herself. She called her father and when both of them tried to snatch the gun, it fired and hit the deceased causing her death. In a subsequent version to the police, complainant stated that there was an altercation between her mother and father. The father picked the gun and threatened to commit suicide. He pointed the barrel of gun towards him. The complainant and her mother tried to snatch the gun and during this scuffle, the gun fired and hit her mother. Section 302 of IPC came to be incorporated by the police after a communication was addressed to a Bench of this Court, during pendency of a bail petition of petitioner, purportedly addressed by the complainant alleging inter alia that the petitioner had committed the murder of his wife.

8. Petitioner had earlier approached this Court for grant of bail, but had remained unsuccessful. His bail application was rejected by this Court, lastly, on 08.03.2022. Thereafter, a number of witnesses including complainant has been examined. Petitioner has placed on record a copy of the statement of complainant recorded in the Court. Perusal of such statement prima facie reveals that the complainant has not supported the charge of murder as framed against petitioner.

9. The above observations have been made only to assess seriousness and gravity of allegations against petitioner. While deciding the bail application under Section 439 of Cr.P.C., the Court is not precluded from looking into the nature of accusations and the material collected on record in support thereof.

10. Keeping in view the facts of the case, this Court is of the considered view that the petitioner has made out a case for bail. Even otherwise, petitioner has remained in custody for about two years and six months. There is no material to suggest that the trial has been delayed for the reasons attributable to the petitioner. Petitioner has a rig