Vinoda vs The State of Karnataka

H.S. Kempanna, J.—The petitioner, who is facing trial for the offence punishable u/s 302 r/w 34 of IPC in SC No. 1237/12 on the file of the Fast Track Court-15, Bangalore city, is before this Court praying to release him on Bail. It is the case of the prosecution that there were differences between accused in the case and deceased - Rakesha in respect of the deceased claiming that he would finish of the petitioner and other accused in the case.

Such being the position on the intervening night of 17th and 18th May 2012 at about 1.00 am the accused, CW2, deceased were smoking cigarettes on the roof of an oil shop situated near Auto Stand of Agara Village. At that time, the deceased picked up quarrel with accused No. 1 and 2 saying that they are responsible for bringing difference between him and CW3 - Rakesha in this case. At that time, accused No. 2 is alleged to have told accused No. 1 that tomorrow the deceased may not let them alive and questioned him, in response to the same the deceased told them he would not let them alive. Thereafter, it is alleged accused No. 2 fisted on the nose of the deceased due to which he sustained bleeding injury. Accused No. 1 assaulted him with hands. CW2 left the place at that juncture. Thereafter, when Accused No. 2 assaulted the deceased, the deceased fell down from the roof of the said shop on a dilapidated house located next to the said shop. Thereafter, both the accused came to the place where the deceased had fallen down and at the instigation of accused No. 2, accused No. 1 picked up a size stone which was at the said place and threw the same on the head of the deceased, due to which he sustained head injury and started struggling. Seeing the same accused No. 2 picked up same size stone and assaulted the deceased or his head, due to which deceased succumbed to the same at the spot. Thereby the accused have committed the afore mentioned offences.

The learned counsel for petitioner submits trial has commenced in the case. Out of 23 witnesses cited in the charge sheet five witnesses have been examined as P.W. 1 to 5. Among the said five witnesses P.W. 2 to 4 are eye witnesses to the occurrence and they have turned hostile to the prosecution case. The rest of the witnesses are only panchas for different pancha name, official witnesses and police officers. In view of the fact that the three eye witnesses in the case have turned hostile, examination of the other witnesses would not establish the charge leveled against the accused. He submits the accused are in custody since 21.05.2012. The trial is not likely to see the end of the day in the near future for want of Presiding Officer. Therefore, he submits the petitioner be released on bail.

The application is opposed by the State. Taking into account that all the three eye witnesses in the case have turned hostile to the prosecution case and as this accused is in custody since 21.05.2012, in the circumstances, I do not find any justification to decline the request of the petitioner. Accordingly, I proceed to pass the following order:

ORDER

The petition is allowed.

The petitioner is ordered to be released on bail on his executing a personal bond in a sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the trial court subject to the following conditions:--

He shall not tamper with the prosecution witnesses.

He shall appear before the Court on all dates of hearing.