H.P. Sandesh, J
1. Heard the learned counsel for the petitioner, the learned High Court Government Pleader appearing for the respondent-State and the learned counsel Sri Tejas N, who assisted the prosecution in the matter in view of the application filed in I.A.No.1/2024.
2. Admittedly, this petitioner had earlier approached this Court and this Court had rejected the same. Once again successive bail petition was also filed in Crl.P.No.482/2021 and this Court while rejecting the said petition taken note of the earlier Crl.P.No.4807/2019 and also the judgments, which were relied upon by the learned counsel for languishing the accused for a longer period in jail. This Court also taken note of the specific overt-act alleged against this petitioner. This Court also taken note that there are ten eye-witnesses to the incident and the petitioner inflicted injury to the victim with deadly weapon knife and there were 25 multiple injuries and as a result, he succumbed to the injuries.
3. Now, the learned counsel for the petitioner in a successive bail petition contend that out of ten eye-witnesses, P.W.5 and P.W.6 have not supported the case of the prosecution. The learned counsel submits that this Court granted bail in favour of accused No.3 in Crl.P.No.12832/2023 vide order dated 20.12.2023 and produced the order copy and also deposition of P.W.5 and P.W.6. The learned counsel submits that this petitioner is in custody from last 4-5 years and some of the witnesses have been examined and some of the eye-witnesses have given up before the Trial Court and hence the petitioner may be enlarged on bail.
4. Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that out of ten eye-witnesses, P.W.1 to P.W.6 are the eye-witnesses, who have been examined before the Trial Court. The learned counsel submits that P.W.1 to P.W.4 have supported the case of the prosecution. The learned counsel submits that even though P.W.5 and P.W.6 are examined, they turned hostile, but in the cross-examination of these two witnesses with regard to overt-act is also elicited from the mouth of the witnesses.
5. The learned counsel Sri Tejas N, who filed application for assisting the prosecution by filing the application brought to the notice of this Court that knife and blood stained clothes were seized at the instance of this petitioner and vehicle which was used for committing the murder were also seized at the instance of the petitioner.
6. Having heard the learned counsel for the petitioner, the learned High Court Government Pleader appearing for the respondent-State and the learned counsel, who assisted the prosecution and also taking note of the order passed by this Court in Crl.P.No.482/2021 dated 22.02.2022, the petition was filed before the Apex Court against the order dated 22.02.2022. The Apex Court while considering the order passed by this Court observed that although the petitioner is in custody for more than three years, but taking into account the nature of injuries on the body of the deceased and the role assigned to the petitioner, and other material on record, held we are not inclined to grant post-arrest bail at this stage. It is also observed that it is appropriate to direct the respondent prosecution to get the statement of the eye-witnesses be recorded in the first instance on priority basis at the earliest. However, if no progress is being taken in the pending trial, the petitioner will be at liberty to file fresh application seeking bail before the Trial Court and the SLP was disposed of.
7. Having considered the order passed by the Apex Court as well as the material on record, it is clear that already the witnesses, particularly eye-witnesses P.W.1 to P.W.6 have been examined before the Court. No doubt, this Court granted bail in favour of accused No.3 in Crl.P.No.12832/2023 and while granting the relief of bail, this Court taken note of the submission made by the learned counsel for the petitioner that P.W.5 and P.W.6 have turned hostile and not supported the case of the prosecution and nothing is mentioned in the order with regard to supporting of P.W.1 to P.W.4 before the Court and also taken note of granting of relief in favour of accused No.2 and accused No.7 and granted the bail. This Court also taken note of granting of bail in favour of accused Nos.2 and 7 in Crl.P.No.482/2021 and comes to the conclusion that the said order will not come to the aid of this petitioner, since overt-act allegation is made against this petitioner. When such being the case, the order passed by this Court in Crl.P.No.12832/2023 cannot be considered for extending the relief and granting of relief of bail is a discretionary power and the Court has to take note of the material on record. It is important to note that P.W.1 to P.W.4 have supported the case of the prosecution and in an ingenious method, the learned counsel for the petitioner has not placed the deposition of P.W.1 to P.W.4 before the Court and only produced the deposition of P.W.5 and P.W.6. Even on verification of evidence of P.W.5 and P.W.6, though they turned hostile in chief examination, they were cross-examined by the learned Public Prosecutor and with regard to overt-act of each of the accused persons were spoken by the hostile witnesses and the said fact is not brought to the Court notice while granting relief in Crl.P.No.12832/2023 in respect of other accused. The material is clear that this petitioner inflicted injury to the victim with knife. The knife and blood stained clothes were also seized. Apart from that, the vehicle was also seized at the instance of this petitioner. When the eye-witnesses P.W.1 to P.W.4 have supported the case of the petitioner and even if two witnesses have turned hostile in chief-examination and in the cross-examination they have supported the case of the prosecution, the same has to be appreciated by the Trial Court and not this Court by sitting under Section 439 of Cr.P.C. and this Court cannot usurp the jurisdiction of the Trial Court for appreciation of the evidence.
8. Having considered the material available on record, the learned counsel Sri Tejas, who assisted the prosecution brought to the notice of this Court that he had produced the deposition of P.W.1 to P.W.4 and the same discloses that they have supported the case of the prosecution. When such material is available before the Court, the petitioner is in custody for more than 4-5 years, cannot be a ground to enlarge the petitioner on bail in an heinous crime of murder. Similar ground was urged before the Apex Court and the Apex Court taken note of the said fact into consideration, particularly the nature of injuries on the body of the deceased and the role assigned to the petitioner and other material on record and hence, I do not find any changed circumstances to exercise the discretion in favour of the petitioner and the petitioner has not made out any ground to enlarge him on bail.
9. In view of the discussions made above, I pass the following:
ORDER
The petition is rejected. The Trial Court is directed to dispose of the matter expeditiously.
