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Judgment
H.P. Sandesh, J
This bail petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.129/2021 of Halagur Police Station, Halagur Circle, Mandya, for the offence punishable under Sections 143, 147, 148 and 302 read with Section 149 of IPC.
Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
This is a successive bail petition and this Court earlier rejected the bail petition of this petitioner, who happens to be accused No.2 and this Court, while rejecting the bail petition, taken note of the fact that records disclose that blood stained cloth of this petitioner and accused No.1 as well as the weapon which was used for committing murder was seized and FSL report also confirms that the weapon as well as the clothes are stained with blood and apart from that specific overt act allegation is made against the petitioner and there are multiple injuries i.e., 11 injuries are found on the body of the deceased and the said injuries are incised wounds which corresponds with the allegations made against this petitioner. Hence rejected the bail petitioner of the petitioner.
Now, learned counsel for the petitioner would submit that similar allegations is made against accused No.1 and he has already been enlarged on bail in Crl.P.No.1192/2023 dated 04.09.2023 and hence, the petitioner is also entitled for bail on the ground of parity and this petitioner may also be enlarged on bail.
Per contra, learned High Court Government Pleader for the respondent-State would submit that though the case rests upon circumstantial evidence, this Court while rejecting the earlier bail petition, taken note of seizure of weapon and also clothes at the instance of this petitioner and the same were blood stained. Hence, this Court comes to the conclusion that there is a sound circumstance against the petitioner and granting of bail in favour of accused No.1 is not a ground to grant bail in favour of this petitioner on the ground of parity as contended by the learned counsel for the petitioner.
Having heard the learned counsel for the petitioner and also learned High Court Government Pleader for the respondent-State, no doubt, this Court granted bail in favour of accused No.1 in Crl.P.No.1192/2023 dated 04.09.2023, while granting bail in Para No.7, made an observation that, except C.W.2, who was examined as P.W.2, the other material witnesses have not supported the case of the prosecution. Admittedly, the material witnesses have not been examined before the Court and the witnesses, who have been examined are hearsay witnesses with regard to the fact that they were present at the spot at the time of galatta which took place between the petitioner and also the deceased. The material witnesses with regard to recovery of weapon and clothes belonging to the petitioner have not been examined before the Court and the said aspect has not been considered by this Court while granting bail in favour of the accused No.1.
This Court would like to rely upon the judgment of the Apex Court reported in (2021) 6 SCC 230 in the case of RAMESH BHAVAN RATHOD VS VISHANBAHI HIRABHAI MAKWANA (KOLI) AND ANOTHER, wherein the Apex Court made an observation that while granting the bail in a case of parity, the High Court cannot exercise the powers in a capricious manner and has to consider the totality of circumstances before granting bail and while applying the principles of parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance and also laid down the law that how parity has to be considered and also held that the granting of bail is not a precedent to claim in any other case. The Apex Court also observed with regard to the seriousness and gravity of the offence committed and severity of punishment in the event of conviction and failure of High Court to consider the same while granting bail and set aside the order of the High Court.
Having considered the principles laid down in the judgment of the Apex Court, in the case on hand, the material witnesses i.e., with regard to recovery of weapon as well as clothes which were seized at the instance of the petitioner were not examined and the observation that material witnesses have been examined before the Court cannot be a precedent to grant bail in favour of this petitioner also as observed by the Apex Court, in view of granting bail in favour of accused No.1. However, liberty is reserved to the petitioner to approach this Court after examination of the material witnesses i.e., C.Ws.15 to 17 with regard to recovery of weapons which were used for committing alleged murder since, the FSL report is positive regarding blood stains found in the weapons and also the clothes of the petitioner. Hence, it is not a fit case to exercise the powers under Section 439 of Cr.P.C. to enlarge the petitioner on bail on the ground of parity.
In view of the discussions made above, I pass the following:-
ORDER
The criminal petition is rejected. However, liberty is reserved to the petitioner to approach this Court after examination of the material witnesses i.e., C.Ws.15 to 17.