IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.4009/2019 C/W CRIMINAL PETITION NO.4122/2019 IN CRL.P.NO.4009/2019 BETWEEN:
Smt. Asha W/o Prakasha Aged about 40 years, R/at Holaluru Village, Shivamogga Taluk – 541 714.
(By Sri K Lakshmikanth, Advocate) AND:
State of Karnataka By Shivamogga Rural Police Station Rep by its State Public Prosecutor, High Court Building, …Petitioner Bangalore – 560 001. ...Respondent (By Sri M. Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in Cr.No.622/2018 (C.C.No.419/2019) of Shivamogga Rural P.S., Shivamogga District for the offences punishable under Sections 302, 115 and 120B read with Section 34 of IPC.
IN CRL.P.NO.4122/2019 BETWEEN:
Anil.M S/o H. Muneshwarappa, Aged about 23 years, R/at B.S.N.L. Quarters, Kuvempu Nagar, Shivamogga– 577 201.
(By Sri Prabhugoud B Tumbigi, Advocate) AND:
State of Karnataka By Shivamogga Rural Police Station Rep by State Public Prosecutor, High Court Building, …Petitioner Bangalore – 560 001. ...Respondent (By Sri M. Divakar Maddur, HCGP) This Criminal Petition is filed under Section 438 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.622/2018 of Shivamogga Rural P.S., Shivamogga District for the offences punishable under Sections 302, 115 and 120B read with Section 34 of IPC.
These Criminal Petitions coming on for Orders, this day, the Court made the following:
O R D E R Crl.P.No.4009/2019 has been filed by petitioner- accused No.5 under Section 439 of Cr.P.C. and Crl.P.No.4122/2019 has been filed by petitioner-
accused No.4 under Section 438 of Cr.P.C respectively to enlarge them on bail and anticipatory bail in Crime No.622/2018 of Shivamogga Rural Police Station for the offences punishable under Sections 302, 115, 120B read with Section 34 of IPC.
2. I have heard the learned counsel for the petitioners and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that there were civil disputes pending between the complainant and the accused persons. Subsequently, a civil suit was also filed and in the said suit the deceased succeeded. Thereafter accused persons started demanding share in the self acquired property of the deceased. With an intention to grab the property accused persons hatched a plan and on 26.12.2018 at about 12.00 Noon when the deceased was proceeding to garden, under the guise of talking with the deceased, accused No.2-Manjappa assaulted the deceased with chopper; accused No.1- Prakash assaulted with sickle; accused No.3- Shankarappa assaulted with sickle; accused No.4- Muneshwarappa assaulted with club; accused No.5, the wife of accused No.1 also assaulted with sickle and two more persons were also there thereby they have committed the alleged offence. The said fact was informed by one Ullas who is an eye witnesses to the alleged incident. On the basis of the same, complainant filed a complaint and a case has been registered.
4. It is the submission of the learned counsel appearing for the petitioners-accused Nos.4 and 5 that complainant is not an eyewitness and even though CWs.3, 4 and 5 are the eyewitnesses, they have not subsequently stated any overt acts as against accused Nos.4 and 5. It is further submitted that there are civil litigations pending between the accused and deceased. They further submitted that because of the said civil litigation to implicate all the family members so as to extract the said property they have falsely implicated in this case. It is their further submission that the only allegations which has been made as against petitioners- accused Nos.4 and 5 are that they instigated accused No.1 at the time when the accused was assaulting the deceased with sickle. It is further submitted that the investigation is already completed and charge sheet has been filed and petitioners-accused are not required for the purpose of further investigation or interrogation. They are ready to abide by any conditions imposed by this Court and ready to offer the sureties. On these grounds, they prayed to allow the petition and to release the petitioners-accused Nos.4 and 5 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that petitioners-accused Nos.4 and 5 along with accused No.1 because of civil disputes pending have conspired with each other and at the instigation of petitioners- accused, it is accused No.1 who has assaulted with sickle and as a result of the same deceased succumbed to the injuries. It is submitted that there is a strong motive of civil litigations pending as against the deceased as well as accused persons. It is further submitted that the petitioners-accused were also present at the time of alleged incident and they are the main instigators. He has further submitted that the CC TV footage also shows the overt acts of petitioners- accused Nos.4 and 5. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. Without expressing anything on the merits of the case and going through the contents of the charge sheet material, CWs.3, 4 and 5 are the eyewitnesses to the alleged incident. On close reading of their statement it reveals that they have not assaulted with any deadly weapons and there are no serious overt acts against accused Nos.4 and 5. Though the name of the petitioners-accused Nos.4 and 5 is found in the statement of eyewitnesses, they have only deposed that at their instigation it is accused No.1 who has assaulted with sickle and thereafter, he has thrown the sickle and went away from that place and subsequently the injured died because of the said injuries caused by accused No.1. Whether the said accused persons instigated the accused No.1 or not is a matter to be considered and appreciated only at the time of trial. I feel that charge sheet has already been filed, the petitioners-accused Nos.4 and 5 are not required for the purpose of further investigation or Interrogation and the only allegation is that they instigated accused No.1. Under such circumstances, by imposing some stringent conditions to the petitioners-accused Nos.4 and 5, if they are ordered to be released on bail it is going to meet the ends of justice.
8. In light of the above discussion, both the petitions are allowed and petitioners-accused Nos.5 and 4 are enlarged on bail and anticipatory bail respectively in Crime No.622/2018 of Shivamogga Rural Police Station for the offences punishable under Sections 302, 115 and 120B read with Section 34 of IPC, subject to the following conditions:
1. Petitioners/accused Nos.4 and 5 shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two lakhs only) with two sureties each for the likesum to the satisfaction of the trial Court.
2. Petitioner/accused No.4 shall surrender before the Court below within 15 days from today.
3. They shall not leave the jurisdiction of the Court without prior permission.
4. They shall mark their attendance once in a month before the jurisdictional police station, till the trial is concluded.
5. They shall not tamper with the prosecution evidence directly or indirectly.
Sd/- JUDGE GJM