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Judgment
H.P. Sandesh, J
Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
The factual matrix of the case of the prosecution against the petitioner, who is arraigned as accused No.1, is that he committed the murder of his wife with knife suspecting her fidelity. The prosecution relies upon the statement of C.W.5, who is none other than the daughter of the deceased and the petitioner, who is aged about 12 years. The statement of C.W.5 is recorded before the learned Magistrate under Section 164 of Cr.P.C.
The learned counsel for the petitioner submits that accused Nos.2 and 3 have already been enlarged on bail and this petitioner is in custody from 2021 and the main witness C.W.5, who is the daughter of the petitioner and the deceased, examined as P.W.1 before the Trial Court, has not supported the case of the prosecution. The learned counsel submits that when C.W.5 has not supported the case of the prosecution and the others witnesses are only formal witnesses and there are no eye-witnesses to the incident and the incident was taken place in the early morning at 3.00 a.m. The petitioner may be enlarged on bail and the petitioner is ready to obey the conditions that may be imposed by this Court. The learned counsel also relies upon the deposition of C.W.5.
Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that the statement of C.W.5, who is aged about 12 years, was recorded on 12.07.2021 before the learned Magistrate and only one witness P.W.1 is examined and there are 66 witnesses in the case on hand. The learned counsel submits that the accused also made extra judicial confession and apart from that, the report of the seized articles which were sent to FSL is also positive that the weapons and other articles, which were seized were stained with blood of the victim. The learned counsel submits that there were 12 injuries and incised wound i.e., cut throat injury is found and unless other witnesses are examined, only considering the evidence of P.W.1, there cannot be any exercising of discretion in favour of the petitioner. The learned counsel contend that when the learned Magistrate has recorded the statement of C.W.5, he has to be examined before the Court whether she gave the voluntary statement before the Court or not. The other material witnesses of FSL as well as extra judicial confession made by the petitioner also to be examined before the Trial Court and hence the petitioner is not entitled for bail. The learned counsel contend that the death was taken place in the matrimonial home of the deceased and the petitioner has to explain with regard to the incident.
Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State, the factual matrix of the case of the prosecution is that this petitioner committed the murder of his wife. On perusal of the post mortem report, it discloses that there are 12 injuries. Having perused 12 injuries, are all incised wound i.e., cut throat neck and cause of death is also on account of she has sustained injury to her neck. It is important to note that C.W.5 is the daughter of the petitioner and the victim. Her statement was recorded before the learned Magistrate on 12.07.2021. On perusal of the statement given by C.W.5 before the learned Magistrate, in detail she has given the details of what happened on the particular date of incident. Her statement was recorded before the learned Magistrate and not yet examined the learned Magistrate before the Trial Court and there are 66 witnesses and other circumstantial witnesses also to be examined. Apart from that, when the death was taken place in matrimonial home and cause of death is on account of incised wound i.e., cut throat injuries found on the neck and the petitioner has to explain the same under Section 106 of the Evidence Act. C.W.5 has not supported the case of the prosecution and when there are 66 witnesses and also other materials are found with regard to the sound circumstances against the petitioner, it is not a case to exercise discretion in favour of the petitioner. The contention of the learned counsel for the petitioner that the petitioner is in custody from three years is not a ground to enlarge the petitioner on bail, in a case of taking away the life of a person. Only relying upon the evidence of C.W.5, daughter of the petitioner and victim, there are chances of tutoring the said witness and unless the relevant witnesses are examined, it is not a case for exercising the discretion in favour of the petitioner.
In view of the discussions made above, I pass the following:
ORDER
The petition is rejected. The petitioner is given liberty to approach this Court after examination of material witnesses.