ORDER : 1. Heard Mr. T.N. Das, learned counsel for the accused-petitioner and Mr. B. Sarma, learned Additional Public Prosecutor for the respondent State of Assam. 2. By this application under Section 439, Code of Criminal Procedure, 1973, the accused-petitioner viz. Sri Siva Deka has prayed for his release on bail in connection with Sessions Case no. 106/2022, arising out of PRC no. 1260/2022 and Sonapur Police Station Case no. 19/2022 registered for offences under Sections 326/307, Indian Penal Code. The case, Sessions Case no. 19/2022 is presently pending before the Court of learned Additional Sessions Judge, No. 3, Kamrup [M], Guwahati. 3. As per the First Information Report [FIR], lodged on 11.01.2022, the informant’s brother Moni Ranbonshi, who used to be a caretaker of a plot of land belonging to one doctor, Dr. Mrinal Bhyan, and located at village Jogdol under the jurisdiction of Sonapur Police Station, was allegedly assaulted by the accused-petitioner by a knife on different parts of the body. At the time of lodging the FIR, Moni Ranbonshi was undergoing treatment in Intensive Care Unit [ICU] at the Gauhati Medical College & Hospital [GMCH]. 4. After arrest of the accused-petitioner in connection with Sonapur Police Station Case no. 19/2022, he was produced before the Court of learned Chief Judicial Magistrate, Kamrup [M], Guwahati. On being so produced, he was remanded to custody on 12.01.2022. As per the Forwarding Report, the sharp weapon [knife], allegedly used in the crime, had been recovered on being led and identified by the accused-petitioner. After completion of investigation in connection with Sonapur Police Station Case no. 19/2022, the Investigating Officer [I.O.] of the case submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 29/2022 dated 31.03.2022 finding a prima facie case against the accused-petitioner for the offence under Section 302, IPC as Moni Ranbonshi died in the meantime due to the injuries sustained. After submission of the charge sheet, the case has been committed to the Court of Sessions. On being committed, the case has been registered as Sessions Case no. 19/2022. 5. The scanned copies of the case records of Sessions Case no. 106/2022 and the case diary, as called for, have been received. 6. The Post-Mortem Examination [P.M.E.] on the dead body was carried out on 23.01.2022 at the GMCH. On being committed, the case has been registered as Sessions Case no. 19/2022. 5. The scanned copies of the case records of Sessions Case no. 106/2022 and the case diary, as called for, have been received. 6. The Post-Mortem Examination [P.M.E.] on the dead body was carried out on 23.01.2022 at the GMCH. As per the P.M.E. Report, the injuries sustained by the deceased are as follows :- “[i] A left paramedical stitched wound of length 20 cm is present vertically in the anterior abdominal wall with 23 staples in situ. Another stitched wound of length 8 cm is present perpendicular to it on the left side of abdominal wall with 8 staples in situ. On opening the abdominal cavity, omentum found to be contused at places; peritoneum and the mesenteries are found to be surgically repaired. A portion of the ileum has been surgically resected and the proximal part mobilized to end in a colostomy on the right side of anterior abdominal wall. The remaining portion of the ilium is gangrenous at places. The abdominal cavity contains around 1000 ml liquid and clotted blood mixed with foul smelling dirty white pus. [ii] A stitched wound of length 3 cm with 4 stitches in situ present in the left anterior chest wall situated 18 cm left from midline and 9 cm below the left nipple. On removal of the stitches a punctured wound of sixe 3 cm X 1 cm, chest cavity deep is seen whose margins are covered by unhealthy granulation tissue. On dissection of the chest cavity, pleura, left lung found perforated. The pleural cavity contains around 200 ml liquid and clotted blood. [iii] A stitched wound of length 2 cm with 2 stitches in situ present in the left anterior chest wall situated 20 cm left from midline and 5 cm below the left nipple. On removal of the stitches a punctured wound of size 2 cm X 1 cm, muscle deep is seen whose margins are covered by unhealthy granulation tissue. [iv] A stitched wound of length 2 cm with 2 stitches in situ present in the left anterior chest wall situated 22 cm left from midline and 1 cm below the left nipple. On removal of the stitches a punctured wound of size 2 cm X 1 cm, muscle deep is seen whose margins are covered by unhealthy granulation tissue. [iv] A stitched wound of length 2 cm with 2 stitches in situ present in the left anterior chest wall situated 22 cm left from midline and 1 cm below the left nipple. On removal of the stitches a punctured wound of size 2 cm X 1 cm, muscle deep is seen whose margins are covered by unhealthy granulation tissue. [v] A stitched wound of length 1.5 cm with 1 stitch in situ present in the left side of back of thorax situated 10 cm left from midline and 23 cm below the spine of seventh cervical vertebra. On removal of the stitches a punctured wound of size 1.5 cm X 1 cm, muscle deep is seen whose margins are covered by unhealthy granulation tissue. [vi] a puncture wound of size 2 cm X 1 cm X cavity deep is present in the left side of abdomen situated 11 cm left from midline and 21 cm below the left nipple. The margins of the injury are covered by unhealthy granulation tissue. The wound is directed downward and medially. [vii] a puncture wound of size 2 cm X 1 Cm X cavity deep is present in the left side of abdomen situated 13 cm left from middle and 10 cm above left anterior superior iliac spine. The margins of the injury are covered by unhealthy granulation tissue. The wound is directed downwards and medially [Stab Injury].” 6.1. As per the P.M.E. Report, the death was due to peritonitis following the injuries sustained over the body and the injuries. The injuries were ante-mortem in nature and were caused by sharp and pointed weapon. The death was reported to be homicidal in nature. 7. From the materials in the case record and the case diary, it is noticed that the injured made a dying declaration before the doctor treating him. As per the declaration of the deceased, his friend i.e. the accused-petitioner who was staying with him, attacked the deceased with a knife on his chest. The doctor recorded the dying declaration in presence of witnesses and the statements of those witnesses are also available in the case record. As per the declaration of the deceased, his friend i.e. the accused-petitioner who was staying with him, attacked the deceased with a knife on his chest. The doctor recorded the dying declaration in presence of witnesses and the statements of those witnesses are also available in the case record. The statement of the person in whose land the deceased used to be the caretaker, is also recorded and the said witness, in his statement, has stated that the accused-petitioner who was staying with Moni Ranbonshi [since deceased], attacked him with a knife on his chest. From the statement of a number of witnesses, it is revealed that in the night intervening 07.01.2022 and 08.01.2022, Moni Ranbonshi [since deceased], the accused-petitioner and a number of other persons celebrated a birthday party of one of their friends. After consumption of liquor at the party, both Moni Ranbonshi [since deceased] and the accused-petitioner came out and went towards their room, where they stayed together. The alleged incident had occurred inside and outside the room where Moni Ranbonshi [since deceased] and the accused-petitioner used to stay together. One of the witnesses was called by the accused-petitioner prior to the incident of assault and was told that Moni Ranbonshi [since deceased] would be killed that day by him. 8. In the ensuing trial, the charge against the accused-petitioner under Section 302, IPC has been framed on 24.05.2022. The charge on being read over and explained to the accused-petitioner, he has pleaded not guilty and claimed to be tried. In the ensuing trial, the evidence of only the informant who was not at the place of incident, was examined as P.W.1 on 30.11.2022. The evidence of the other vital witnesses are yet to be examined. A number of witnesses through whom the prosecution side has intended to bring home the charge against the accuse-petitioner, are common acquaintances of both the deceased and the accused-petitioner. 9. The evidence of the other vital witnesses are yet to be examined. A number of witnesses through whom the prosecution side has intended to bring home the charge against the accuse-petitioner, are common acquaintances of both the deceased and the accused-petitioner. 9. It is well settled that the matters to be considered in an application for bail are [i] whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; [ii] nature and gravity of the charge; [iii] severity of the punishment in the event of conviction; [iv] danger of the accused absconding or fleeing, if released on bail; [v] character, behaviour, means, position and standing of the accused; [vi] likelihood of the offence being repeated; [vii] reasonable apprehension of the witnesses being tampered with; and [viii] danger, of course, of justice being thwarted by grant of bail. The overriding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; and the position and status of the accused with reference to the victim and the witnesses. The prime consideration is to protect a free and fair trial and to ensure that justice is done. This may happen only if the witnesses are able to depose without fear, freely and truthfully. It has been observed by the Hon’ble Supreme Court of India in Panchanan Mishra vs. Digambar Mishra; [2005] 3 SCC 143, that once a person is released on bail in criminal cases where the punishment is quiet stringent and deterrent, the accused in order to get away from the clutches of the same indulged in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation. It is true that the accused-petitioner are only undertrials and his liberty is also a relevant consideration. But it is equally important to consider the impact of his release on bail on the prosecution witnesses and also the likely impact on society. In order to ensure that during trial the material witnesses should be in a position to depose without fear and justice being done to the society, a balance has to be struck by taking into consideration all the above factors. 10. In order to ensure that during trial the material witnesses should be in a position to depose without fear and justice being done to the society, a balance has to be struck by taking into consideration all the above factors. 10. Having considered the materials in the case record in its entirety, this Court is of the considered view that in the event the accused-petitioner is allowed to be released on bail, at this stage of the ensuing trial in Session Case no. 106/2022, without completion of recording of evidence of the vital witnesses, who are acquaintances of both the deceased and the accused-petitioner, the possibility of the accused-petitioner trying either to influence or to threat the witnesses cannot be outrightly ruled out. Moreover, the charge framed against the accused-petitioner is that of murder and the manner in which the offence was allegedly committed was gruesome. In crimes like murder, the mere fact that the accused is in custody for a prolonged period may not be a relevant factor and the period of incarceration by itself would not entitle the accused to be released on bail. Taking all these factors into consideration, this Court is not inclined to allow the prayer for bail at this stage of trial. Consequently, the prayer for bail under Section 439, CrPC to the accused-petitioner, at this stage of the trial, stands rejected.