IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9331/2018 C/W. CRIMINAL PETITION NO. 619/2019 IN CRIMINAL PETITION NO. 9331/2018:
BETWEEN:
Apporva Choudary S/o Shivaram Bhaiya Aged about 20 years R/o Meghaliasana Grama Mahsena Taluk & Zilla Gujarath – 384 001.
(By Sri. Anees Ali Khan, Advocate) AND:
State by V.V. Puram P.S. Bangalore-560 002.
...Petitioner Represented by The State Public Prosecutor High Court of Karnataka High Court Buildings Bangalore-560 001. ... Respondent (By Sri B.R. Deepak, SPP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.132/2018 of Vishveshwarapuram Police Station, Bangalore City for the offence p/u/s 302 r/w 34 of IPC.
IN CRIMINAL PETITION NO.619/2019:
BETWEEN:
Royal Kumar Chaudhary Judicial custody (UTP No.7455/18) S/o Dineshbai Chaudari 20 years, permanent R/at, Dkaliya Vas, Punasan Mehsana District-382 710 Gujarath ...Petitioner (By Sri. H. Mallangoud, Advocate) AND:
State of Karnataka By V.V. Puram Police Station Bangalore-560 001.
Rep. SPP, High Court of Karnataka ... Respondent (By Sri B.R. Deepak, SPP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.132/2018 (C.C.No.29308/2018) of Vishveshwarapuram Police Station, Bangalore City for the offence p/u/s 302 r/w 34 of IPC.
These Criminal Petitions coming on for Orders, this day, the Court made the following:
O R D E R Criminal Petition No. 9331/2018 has been filed by the petitioner-accused No.2 and Criminal Petition No.619/2019 has been filed by the petitioner-accused No.1 under Section 439 of Cr.P.C., to release them on bail in Crime No.132/2018 of Vishveshwarapuram Police Station for the offences punishable under Section 302 read with Section 34 of IPC.
2. I have heard the learned counsel for the petitioners and the learned Special Public Prosecutor for the respondent-State.
3. The gist of the complaint is that some nursing students from Gujarath arrived at Bengaluru to attend the nursing examinations and were residing in hotel Trishala at V.V. Puram. Accused No.1 was the occupant of Room No.404 in the fourth floor of said hotel and the deceased was occupying Room No.405.
After the examination on 08.08.2018, it was found that accused Nos. 1 and 2 were there in the room and at that time, the complainant was also there in the room. At about 11.00 p.m., she noticed that the deceased and Petitioner-accused No.1 were quarreling each other over a girl by name Nidhi and by quarreling, they reached the balcony of the room. At about 11.30 p.m., petitioner-accused No.2 pushed the deceased from balcony from fourth floor and as a result of the same, he fell down and succumbed to injuries. On the basis of the compliant, a case has been registered.
4. It is the submission of the learned counsel for the petitioner-accused No.1 that the complainant is an eye-witness. She has filed the complaint on 09.8.2018 and subsequently one more statement was given on 04.8.2018. In both the statements, there is a contrary statement and the said statements are not in consonance with the CCTV footage. He further submits that the said CCTV footage if looked into, would indicate that the deceased did not enter the room of accused No.1 and that the CCTV footage also indicate the fact that the deceased came near the room of the accused No.1 i.e. Room No.404 and he tried to hear something by standing near the door. This circumstance clearly goes to show that there are contradictions in the statements made. He further submits that the entire charge-sheet material, if looked into, the conviction is remote one and there is no likelihood that the petitioner would be convicted for the alleged offence. He further submits that petitioner- accused No.1 is ready to abide by any conditions imposed by this Court. On these grounds, he prayed to allow the petition and release the petitioner-accused No.1 on bail.
5. He further submits that there were no overt acts as alleged against petitioner-accused No.2. He further submits that Section 162 statements were also recorded and therein also, the complainant has not stated the overt act alleged against the petitioner- accused No.2.
6. He further submits that he is not having any criminal antecedents, even one that which has been filed has been quashed by the High Court of Karnataka. Petitioner-accused No.2 is ready to abide by the conditions imposed by this Court. On these grounds, he prayed to allow the petition and release the petitioner-accused No.2 on bail.
7. Per contra, the learned Special Public Prosecutor vehemently argued and submits that the fact of death of the deceased is not in dispute and the said incident has taken place in the said hotel. He further submitted that petitioner-accused No.1 was staying in Room No.404 and the deceased was staying in Room No.405. The alleged incident has taken place in Room No.404 and at that time, the complainant was present and she is an eyewitness. She has categorically stated in the compliant about the incident that has taken place.
8. He further submits that the CCTV footage and the translated copy of complaint of the complainant clearly goes to show that the petitioners-accused Nos. 1 and 2 are involved in the said case which is punishable with death or imprisonment for life. He further submitted that the petitioner-accused is having a criminal background. If they are released on bail, they may indulge in similar type of criminal activities.
9. He further submits that complainant and other persons are from Gujarath. If they are released on bail, there is likelihood of tampering the prosecution witnesses and ultimately prejudice the case of the prosecution.
10. By relying on the decisions of Hon’ble Apex Court in the case of Virupakshappa Gouda and Another vs. The State of Karnataka and Another reported in AIR 2017 SC 1685, the learned Special Public Prosecutor further submits that while considering the bail application, the Court has to consider only the prima-facie material and it should not consider the merits of the case, the material which is to be appreciated only at the time of trial. On this ground, he prays for dismissal of the petitions.
11. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and I have also perused the documents available including the charge-sheet material that has been made available by the Special Public Prosecutor. Several contentions have been taken up by the learned counsel appearing for the parties. It is their contention that the contents of the compliant and further statements said to have been recorded subsequently on 04.8.2018 would reveal that there is inconsistency in the statement and those inconsistency clearly goes to show that there is remote chance of conviction of petitioner-accused. It is well settled principle of law that contradictory statement and inconsistent statement if they are placed in the charge-sheet, they may not be looked into at this premature stage. The matter has to be considered and appreciated only at the time when witness is examined before the Court. It is also well established principles of law that while considering the bail application, the Court cannot grant relief of bail where there is likelihood of conviction. The only consideration is, whether the material produced prima-facie indicates that the accused has committed crime or not? Keeping in view the proposition of law and the entire materials if it is looked into, without expressing anything on the contentions which have been raised, there appears to be material to show that the petitioner-accused involved in the alleged offences which are punishable with death or imprisonment for life.
12. In the said facts and circumstances, I am of the view that, it is not a fit case to allow the petitions. Hence, both the petitions stands dismissed.
Sd/- JUDGE