Judgment:
1. In this petition filed under Section 439 Cr.P.C, the petitioner arraigned as accused No. 1 in S.C.No.42/11 pending on the file of District and Sessions Judge, Kodagu-Madikeri, has sought for his release on bail. This petitioner along with two other accused persons has been charge sheeted for the offences punishable under Sections 120-B, 302, 201 read with 34 IPC and Section 3 read with Sections 25 and 27 of the Indian Arms Act.
2. One Ponnachhan K. Nachchappa, elder brother of this petitioner and also accused No.2 is the deceased in this case. According to the case of the prosecution, during the night of 25.10.2010, CW. 1 P.P.Ramesh resident of Kaggodlu village. Madikeri District while was in his house, heard sounds of gun firing from the coffee plantation of the deceased and he also heard some human cries. However, since it was pitch dark, he did not go in the direction of the sound. On the next day morning viz., on 26.10.2010 at about 8.30 a.m. he informed the Rural Police, Madikeri over phone about his hearing gun shot sound and also human cries during the previous night. Immediately, the Police Sub-Inspector, Madikeri Rural Police Station came near the house of CW. 1 and thereafter CW. 1 took the Police Sub-Inspector to the middle of coffee plantation of the deceased. There they saw trails of blood on the ground and also human foot prints; there they noticed a dead body covered with some branches of a tree; the dead body was identified as that of Nachhappa. Thereafter CW.1 lodged report and on the basis of the same, the case in Crime No. 238/2010 came to be registered against unknown persons and investigation was taken up. During investigation, the Investigating Officer held inquest over the dead body and subjected the dead body to post mortem examination. The Doctor during post mortem examination had noticed several bullet injuries on the dead body and he opined that the death was due to shock and haemorrhage as a result of gun shot injuries sustained. On 26.10.2010, the petitioner herein was apprehended on suspicion and he said to have confessed the commission of murder of his brother in the background of previous civil dispute. Thereafter at the instance of this petitioner, a single barrel gun said to have been used for the commission of the offence was recovered from the house of accused No.2. Several other incriminating materials were also recovered. Thereafter, the petitioner was subjected the judicial custody. After completing investigation, charge sheet came to be laid for the aforesaid offences and the matter was committed to the court of sessions. Thereafter the petitioner filed application under Section 439 Cr.P.C. seeking an order to release him on bail. However, the same came to be rejected. Therefore, the petitioner is before this Court.
3. The petition is opposed by the respondent State.
4. I have heard both sides Pernsent the records made available.
5. As noticed supra, the case of the prosecution rests on circumstantial evidence as there are no eye¬witnesses to the incident of murder. No doubt from the contents of post mortem report it is prima facie clear that the death of the deceased was homicidal as he had died on account of gunshot injuries. Of course, the ballistic expert's report, on examination of the seized single barrel gun prima facie indicates that it bears evidence of discharge and the same has been used in the commission of the offence. As noticed supra, the gun was owned by accused No. 2 and it was said to have been recovered from the house of accused No.2, of course, at the instance of this petitioner. It is brought to the notice of the Court that accused No.2 has already been enlarged on bail by the learned Sessions Judge.
6. Yet another circumstance projected by the prosecution is the report of the finger print expert. According to prosecution, a chance finger print was developed at the scene of crime and the same was compared with left index linger impression of the my considered opinion, the petitioner is entitled to be enlarged on bail. accused secured during investigation and they found tallying with each other. However, perusal of the evidence produced along with charge sheet prima facie does not indicate as to when and from where the chance finger print was developed. The mahazar drawn immediately after the apprehension of this petitioner would only indicate that fingers of both the hands were cleaned with the help of ear buds and the same were preserved and subsequently, his left index finger impression was obtained. Though the report of the finger print expert says that the chance finger print was developed at the scene of crime, materials on record does not prima facie indicate as to when and on what article the chance finger print was found and developed. Therefore, at this stage, the circumstances relied by the prosecution does not prima facie connect the petitioner for the homicidal death of the deceased. Therefore, in my considered nr
6. Accordingly, the petition is allowed. The petitioner is ordered to be enlarged on bail in connection with case in Crime No.238/10 of Madikeri Rural Police Station (S.C.No.42/11 pending on the file of District and Sessions Judge, Kodagu-Madikeri) on his executing a personal bond for a sum of Rs.50.000/- with two sureties for the like-sum to the satisfaction of the Sessions Judge, and subject to further condition that,
i) The petitioner shall not tamper or terrorise the prosecution witnesses in any manner;
ii) The petitioner shall not indulge in any acts similar to the one alleged in the case;
iii) The petitioner shall appear before the trial Court on all hearing dates without fail;
iv) The petitioners shall not leave the jurisdiction of the trial Court without express permission thereof and
v) The petitioner shall mark his attendance before respondent-Police on every 20th of each calendar month till the disposal of the case.