NINGAPPA v. THE STATE OF KARNATAKA

threat to CW-1 to give evidence before the Sessions Court, then this Court had ordered to give necessary police protection to CW-1 for making her comfortable to give evidence without any fear. Accordingly, the evidence of CW-1 was posted on 27.01.2024, but it is submitted to the Court that the Presiding Officer of the Sessions Court was - 10 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 on leave. Therefore, further trial was fixed on 07.02.2024. The CW-1 – complainant was present in the office of the SPP and appeared through video conference and stated that there is threat to her life for giving evidence before the Sessions Court. Considering the submission made by the learned SPP and learned counsel for the respondent No.2, necessary orders are passed for giving full protection to CW-1. It is contended that the trial is not conducted in free and fair manner.

13. Accused Nos.1 and 4 have been released on bail by this Court, but CW-1 complained that there is threat to her life. Therefore, under these circumstances, the petitioners herein (Accused Nos.3 and 4) are to be given benefit of bail or not, is to be considered in the background of whether accusations against the petitioners and accused Nos.1 and 2 are with motive to commit murder of the deceased in engulfing the amount of land acquisition compensation is to be considered. The five accused have conspired to each other and each of the - 11 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 accused have played their role in committing murder of the deceased.

14. It is revealed from the charge sheet materials regarding the role of each petitioners that accused No.3 had held the hands of deceased, accused No.2 had held legs of the deceased and the accused No.1 had assaulted with Bamboo stick on the head of deceased forcibly, then the accused Nos.2 and 3 have kicked the deceased, then the accused No.4 had strangulated the deceased with gunny rope and in this way the death of the deceased was committed in the house of accused No.5.

15. It is the case of prosecution that since the accused have conspired with each other with a motive to murder the deceased, there could not be an eye witness to incident. Therefore, case is based on circumstantial evidence. The prosecution is contending that the accused persons have strong motive to kill the deceased. It is further submitted that if accused Nos.3 and 4/petitioners are released on bail, then they may give - 12 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 threat to CW-1 – complainant, who is wife of the deceased. Under such circumstances, there could not be free and fail trial. The offences alleged in the present case is heinous in nature and for the offence punishable under Section 302 of IPC, the maximum punishment to be imposed imprisonment for life. Therefore, it is worthwhile to refer the judgment of Hon'ble Supreme Court in the case of GUDIKANTI NARASIMHULU AND ORS. vs. PUBLIC PROSECUTOR1 [GUDIKANTI NARASIMHULU’s case (supra)] while considering the bail applications filed under accusation of heinous offences.

16. The prosecution case is that all the accused have hatched conspiracy with a motive why the accused be murdered for getting land acquisition compensation amount and accordingly, prepared themselves with rods, gunny rope and sticks with an intention how to commit murder. The accused have successful in planning the murder and commission of offence of murder. The 1 AIR 1978 SC 429 - 13 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 prosecution has established prima facie case as above discussed.

17. Learned HCGP has also referred the judgment of Supreme Court in the case of SATENDER KUMAR ANTIL vs. CENTRAL BUREAU OF INVESTIGATION2 [SATENDER KUMAR ANTIL’s case (supra)] and the Court is of the opinion that there is potential threat to CW1 - complainant while giving evidence before the Sessions Court. Though accused Nos.1 and 2 are released on bail and when the complainant has alleged there is threat to life, the prosecution has not preferred any application requesting to cancel the bail application granted to accused Nos.1 and 2. Therefore, considering this, during the trial, the Court is of the opinion that if accused Nos.3 and 4/petitioners herein are released on bail, then the threat would be aggravated. When the Court sees prima facie that there would be aggravation of threat to life of CW1, then there would not be free and fair trial. 2 (2021) 10 SCC 773 - 14 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023

18. Therefore, considering these circumstances above stated, the Court is of the opinion not to release accused Nos.3 and 4 on bail. Therefore, the bail application filed by the petitioners/accused Nos.3 and 4 is hereby rejected. OBSERVATIONS ON DELAY IN TRIAL, PRODUCTION OF ACCUSED BEFORE THE COURT AND WITNESS PROTECTION:-

19. Upon considering the chronological events in this case from the date of filing charge sheet before the learned Magistrate Court, till today there is enormous delay stage by stage prolonging the trial for more than four years. The delay in trial would frustrate the witnesses thereby defeating the meaning of free and fair trial itself. In this regard, the Court has directed the learned HCGP to file synopsis in detail by mentioning every dates of trial to ascertain whether the accused who are in custody are being produced before the Court regularly; whether the witnesses are present before the Court for the evidence and who is responsible in causing delay. - 15 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023

20. For all these ascertainment of events, learned HCGP has filed a written synopsis along with certified copy of order sheet in the trial. Learned counsel for the petitioners has also furnished all the documents pertaining to trial. Upon perusal of the records and order sheet meticulously maintained in the trial with the help of synopsis submitted by the learned HCGP, it is found out that there is a flagrant insensitiveness on the part of the concerned police in producing the accused before the Court for trial. Majority of times in the trial the accused who are in custody are not produced before the Court rendering Sessions Judge unable to proceed with the trial. Upon perusal of the dates of events in the trial, unfortunate situation is developed that the witnesses have lost confidence in giving evidence even appearing before the Court for evidence, because the accused are not produced before the Court, thus trial is not proceeded with. Therefore, the witnesses are bound over to next date without any progress. The order sheet in the Sessions trial - 16 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 reveals that most of the date of hearings the concerned police of the police stations have not produced the accused before the Court who have been in custody and on that date the witnesses were present, but trial could not be conducted for want of accused. Thus, witnesses are bound over and returned to their home with empty hands. A situation is created in the mind of witnesses that even they are present before the Court to give their evidence, there is no certainty that the trial would be taken up since uncertain situation whether accused are produced or not. Therefore, they were absent before the Court. Therefore, these developments are occurred resulting in mockery of justice as there would not be any progress in the trial. In this way, the prosecution witnesses are harassed.

21. Speedy trial is fundamental right as per Article 21 of the Constitution of India for the accused. Same holds good the complainant/victim as well as witnesses, but this is flouted in this case. The Hon’ble Supreme Court time and again was pleased to issue - 17 - NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 guidelines to speed up the trial and conclude trial within a reasonable period as per mandatory provision under Section 309 of Cr.P.C. The Hon’ble Supreme Court in the case of AKHIL @ JAVED v. STATE OF NCT OF DELHI3 [AKHIL @ JAVED’s case] by following the judgment in the case of STATE OF UP vs. SHAMBHU NATH SINGH AND OTHERS4 were pleased to issue guidelines, which are mandatorily be followed by the trial courts. The Hon’ble Supreme Court in Shambu Nath Singh’s case has observed at paragraph Nos.11, 12, 13, 14, 15 and 16 which are as follows: “11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words “as expeditiously as possible” have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begin. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub- section by using the words “as expeditiously as possible” has chosen to make the requirement for the next stage (when examination of witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination “shall be continued from day to day until all the witnesses in attendance have been examined”. The solitary exception to the said stringent rule is, if the court finds that adjournment “beyond the following day to be necessary” the same can