Suneesh Kumar Jain and Prakash Poojary vs State of Karnataka

V. Jagannathan, J.—Heard learned Counsel Sri. S.G. Bhagavan for the Petitioners and Sri. P.M. Nawaz, learned Addl. S.P.P. for the Respondent-State in respect of the bail sought by the Petitioners who are accused of having committed the offence punishable u/s 302 of IPC.

The case of the prosecution in short is that, the deceased Vishwanath was found near the hotel of CW-2 on 28.7.10 at about 4.55 p.m. and he was assaulted by some unknown persons with talwar and thereafter the accused escaped in a Maruthi Omni bearing No. KA-12-M 2050. The motive for the incident is said to be previous enmity between the accused persons and deceased over murder of A-1''s father many years ago.

Submission of Petitioner''s counsel is that, except the voluntary statement of the accused and the arrest that had preceded to it, there is no other material and even the arrest has not been conducted in conformity with the provisions of Code of Criminal Procedure as it is unlikely that the Petitioners could have been arrested at Belthangady which is about 20 Kms from Puttur and under these circumstances and also taking note of the fact that the vehicle was released in favour of one Raghunatha Shetty by the court and the said owner of the vehicle having stated in his application for release of the vehicle that the front left window glass of the vehicle was found broken before three months prior to the date of the vehicle being seized.

Referring to all these aspects and particularly, about the very procedure followed in arresting the accused persons, submission made is that, as the charge sheet is filed, the Petitioners can be released on bail.

One other important submission made by the learned Counsel for the Petitioners is that, though in the statement of so called eye witnesses C Ws 1 to 4 it is mentioned that the said eye witnesses had seen the accused persons and can identify them, subsequently in the test identification parade that was conducted, eye witnesses did not recognise or identify the Petitioners herein. Under these circumstances, the Petitioners be released on bail, moreover they are young persons.

Submission of the learned Addl. S.P.P. for the Respondent-State is that, while it is true that in the test identification parade, eye witnesses did not identify the Petitioners herein, from the Petitioners recovery was effected in the form of helmets, blood stained clothes as well as weapons and therefore the Petitioners are not entitled for bail. Moreover, previous enmity is the cause for the present incident.

Having thus heard both sides and the only material being voluntary statement said to have been recorded by the police and the very arrest; of the Petitioners being in doubt in view of the submission made by the Petitioners counsel and the only material available being recovery of helmets, blood stained clothes as well as weapons and it is not forthcoming from the charge sheet material as to whom the blood stained clothes belong, taking all these factors into account, more particularly eye witnesses being unable to identify the accused persons in the test identification parade, in my view the Petitioners can be released on bail by imposing conditions to safeguard the prosecution interest.

In the result, the petition is allowed by imposing the following conditions:

The Petitioners shall be released on bail on each of them executing a personal bond for Rs. 25,000/- with two sureties for the likesum, out of whom one shall be a solvent surety, to the satisfaction of the trial court.

They shall not hamper the investigation and shall not give threat to the prosecution witnesses in any manner.

They shall mark their attendance before the jurisdictional police on every Sunday between 10.00 a.m. and 5.00 p.m.

They shall appear before the trial court on all the dates of hearing without fail.

They shall not involve in offences of like nature in future.

They shall not leave their place without prior permission of the jurisdictional Magistrate.

If the Petitioners violate any of the above conditions, the prosecution is at liberty to move for cancellation of bail.

The aforesaid observations are confined to this petition only and shall not have any bearing on the merits of the case.