H.P. Sandesh, J
1. This is a successive bail petition filed under Section 439 of Cr.P.C seeking regular bail of the petitioner/accused in Crime No.59/2021 of Hebbala Police Station, Mysuru for the offence punishable under Section 302, 201, 114, 120(B) R/w Section 34 of IPC.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. This Court earlier rejected the bail petition of accused Nos.1 and 2 vide order dated 18th day of October, 2022 and while rejecting the bail petition, this Court has observed that the accused Nos.1 and 2 have indulged in committing murder of grand mother by using the wooden stick and plastic cover which was used for tying the neck and also on the face of the deceased. The post mortem report also confirms that the allegation made against these petitioners. This Court earlier also rejected the bail petition in respect of this petitioner in Crl.P No.4424/2022 vide order dated 24th day of May, 2022.
4. Now, the counsel appearing for the accused No.2 who is the petitioner herein would submits that this Court has already granted bail in favour of 1st accused in Crl.P.No.7833/2022 vide order dated 23rd day of September, 2023. The counsel also brought to notice of this Court that this Court has observed that eye witnesses i.e., CW19 and CW20 who have been examined are the immediate neighbors and they are the witnesses who allegedly had seen the accused persons fighting with the deceased. Both of them have turned hostile and also taken note of proviso of Section 437(1) of Cr.P.C that the petitioner is a unmarried and benefit and Section 437(1) of Cr.P.C to be exercised.
5. The counsel would submits that the prosecution relied upon the statement of CW19 to CW24 as eye witnesses and their statements are also stereotypic and they have not witnessed the incident of committing the murder and they only says about that earlier there were quarrel between them and this petitioner is also being the women and Section 437(1) of Cr.P.C could be invoked and similar allegation is made against the accused No.1 and this petitioner. Hence, on the ground of parity also the petitioner is entitled for bail.
6. Per Contra, the counsel appearing for the respondent/State would submits that only CW19 and CW20 have been examined and the witnesses CW21 to CW24 are also eye witnesses to the incident but they have not been examined in the Trial Court. Even though the PW6 and PW7 have been examined and they have not supported the case, this Court cannot appreciate the material available on record.
7. The counsel also would vehemently contend that first this petitioner inflicted the injury with wooden stick and thereafter the accused No.1 was also involved in causing injury and hence this petitioner is not entitled for the bail on the ground of parity.
8. Having heard the petitioner’s counsel and the counsel appearing for the respondent/State and also the counsel for petitioner placed the evidence of PW6 and PW7 who are CW19 and CW20. No doubt CW21 to CW24 have not been examined before the Trial Court. Having perused the charge sheet column, CW19 to CW24 are shown as eye witnesses, but the statement of witnesses discloses that they come to know about the murder in the police station, but they speaks about only about earlier quarrel between the victim and the petitioner and also with the other accused persons. This Court has already granted bail in favour of the accused Nos.3 and 4 and also accused No.1. This Court while granting bail in favour of accused No.1 made an observation that the eye witnesses have turned hostile and also invoked Section 437(1) of Cr.P.C. This petitioner is also a grand daughter of the victim. No doubt the P.M report discloses that death is due to head injury sustained, with history of tying plastic cover to the face and neck. The Doctor has been examined before the Trial Court and Doctor in the cross-examination has also deposed that the deceased was aged about 75 years in the event of fall from stair case, there was possibility sustaining the external injuries and internal injuries as mentioned in the P.M report.
9. Having considered the evidence of the Doctor also and this Court has already exercised the discretion in favour of the accused No.1 and similar allegation is made against the accused No.2 and hence, there is a force in the contention of petitioner’s counsel that this petitioner who arrayed as accused No.2 has also facing the same accusation and also entitled for bail on the ground of parity. This petitioner being a women, the Court can invoke Section 437(1) of Cr.P.C and this petitioner is in custody from last two years along with her child. Hence, it is appropriate to exercise discretion in favour of this petitioner.
10. In view of the discussions made above, I pass the following:
ORDER
The Petition is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No. 59/2021 of Hebbala Police Station, Mysuru registered for the offence punishable under Section 302, 201, 114, 120(B) R/w Section 34 of IPC., subject to the following conditions:
(i) The petitioner shall execute personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the remaining prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court, till the case registered against him is disposed of.
