@JUDGMENTTAG-ORDER
Rathnakala, J@mdashThis petition is filed under Section 439 of the Code of Criminal Procedure, 1973, seeking to enlarge the petitioners on bail in Crime No. 213/2013 of Katkol Police Station registered for the offences punishable under Sections 376(A)(D), 302 read with Section 34 of the Indian Penal Code, 1860. This petitioner is arrayed as accused No. 3 in the charge sheet filed by the respondent-Investigating Officer in respect of the offence punishable under Sections 376(A)(D), 302 read with Section 34 of IPC. The case of the prosecution is, the accused Nos. 1 to 3 (accused No. 2 is juvenile in conflict with law) during the intervening night of 19.08.2014, while the deceased Bheemawa, aged 25 years was attending nature call, closed her mouth from behind assaulted with stones and made her immobile, carried her to a nearby farm with grown up sugarcane, committed rape on her one after another and throttled her to death. Thereafter they destroyed the evidence by washing of their bloodstained clothes.
2. Learned Counsel for the petitioner submits that the case of the prosecution rests entirely on circumstantial evidence. Accused No. 2 is juvenile is enlarged on bail. The evidentiary material collected by the Investigating Officer is very weak and not sufficient to attract the offence punishable under Sections 376(A)(D) and 302 of IPC. Since the charge sheet is filed he may be enlarged on bail.
3. In reply, learned Government Pleader submits that the postmortem demonstrates that the death was due to throttling and also head injury. That apart the deceased was subjected to violence and suffered multiple injuries and during the postmortem examination, the vaginal swab has been collected and sent for chemical analysis and report of forensic expert is awaited. That apart, there is the evidence of witnesses of CWs-25 and 26 who saw the accused going together towards the village from the place of occurrence at 9.45 p.m. CW-27, while he was returning to the village has heard the screaming and thereafter on reaching home, he has proceeding towards the place of occurrence, under the torchlight, he came across and identified the accused persons together returning to the village. The absence of the accused persons from their respective houses at the relevant point of time is spoken by their family members. The complainant has stated about the deceased leaving the house at 10-00 p.m. to attend the nature call. Though there is some discrepancy about the time stated by the complainant and the witnesses, this is a minor discrepancy which cannot gone into at this stage. The chain of events as made out from circumstantial evidence is sufficient to establish the culpability of the accused in committing rape and causing murder of the deceased. Hence, petition is liable to be rejected.
4. Though there is circumstantial evidence about the presence of the accused persons at a close range of the place of occurrence where the dead body was found, in my considered opinion, until the FSL report is placed on record establishing the link of the accused to the death, it cannot be said that a prima facie case is made out against the accused. It is already 1 and 1/2 years since the commission of the offence; since the F.S.L. report is not yet received, I am of the considered opinion that the petitioner continued detention is not warranted. Under the circumstance, there is no impediment to allow the petition.
5. Accordingly, the petition is allowed.
(i) Petitioner is enlarged on bail in Crime No. 213/2013 of Katkol Police Station on executing a self bond of Rs. 2,00,000/- with two sureties for the likesum.
(ii) Until the Investigating Officer confirms the identity, address and abode of the sureties, their surety shall not be accepted by the concerned Court.
(iii) He shall attend the Court regularly and punctually.
(iv) He shall not threaten or prevail upon the prosecution witnesses.
