IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.5054/2018 BETWEEN:
1. Sandeepa, S/o Narayana Gowda, Aged about 34 years, Occ: Agriculture, R/o Kikkeri, Taluka Thirthahalli, District Shivamogga-577 432.
2. Eshwaranayak, S/o Takanayak, Aged about 43 years, Occ: Agriculture, R/o Billodi, Taluka Hosanagara, District Shivamogga-577 418.
(By Sri.Dinesh Kumar Rao K. Advocate for Sri.R.B.Deshpande, Advocate) AND:
The State of Karnataka by Thirthahalli Police Station, Shivamogga District – 577 432 …Petitioners (Represented by State Public Prosecutor, High Court Buildings, Bengaluru-560 001) …Respondent (By Sri. M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioners on bail in Crime No.406/2017 of Thirthahalli Police Station, Shivamogga, for the offences punishable under Sections 323, 504, 307, 506, 302, 120B, 115 r/w 34 of IPC.
This Criminal Petition coming on for Orders, this day the Court made the following:-
O R D E R The present petition has been filed by petitioners/ accused Nos.1 and 2 under Section 439 of Cr.P.C. to release them on bail in Crime No.406/2017 (SC No.28/2018) of Thirthahalli police station for the offences punishable under Sections 323, 504, 307, 506, 302, 120B, 115 r/w Section 34 of Indian Penal Code.
2. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
3. The gist of the complaint is that the complainant was feeding one Anwita at about 8.45 p.m. on 3.10.2017 and her husband was also taking the dinner and at that time somebody called from the outside. Then, deceased- her husband by opening the door and putting the light went outside. Three unknown persons were present and they asked that they wanted to purchase the sand, but the deceased told that he is not dealing with the sand business and at that time one among them had assaulted the deceased with matchet on his neck and another person assaulted on his stomach with long, sword and as a result of the same, the deceased succumbed to the injures. Third person who was with them caught hold the complainant and assaulted with hands. On the basis of the said complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioners that the complaint was registered against unknown persons and the accused persons were arrested on 16.10.2017, what is the information and how they are connected is not forthcoming from the charge sheet material. He further submitted that already accused Nos.3 and 4 have been enlarged on bail. On the ground of parity, the petitioners/accused are also entitled to be released on bail. He further submitted that CWs.1 to 5 are the eyewitnesses to the alleged incident, but in the statement given by CWs.1 to 4 they have not named the accused persons and CW5 named the accused persons. These statement was came to be recorded on 20.10.2017 after the arrest of the accused persons. Already charge sheet has been filed and there is no possibility of them being falsely implicated in the case cannot be over ruled. They are ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioners on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that it is accused No.4 who has given the supari and accused Nos.1 to 3 went to the house of the complainant and called the deceased and accused Nos.1 and 2 have assaulted with lethal weapon and the weapon has been seized at the instance of accused No.1 and even two jerkins have also been seized from the possession of the accused. He further submitted that CW1 the complainant is the wife of the deceased and she has seen the said accused persons and she is also an eyewitness to the alleged incident. Even in the complaint the description of the accused persons has also been stated including the overt acts. He further submitted that the Test Identification Parade has also been held and in the Test Identification Parade the complainant has identified the accused persons. On these grounds he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the records the complaint itself clearly goes to show that accused Nos.1 to 3 came near the house of the complainant, they called the deceased and when he came out, at that time CW1 was also present and accused No.1 assaulted with lethal weapon on his neck and accused No.2 also assaulted on the stomach and at that time it is accused No.3 who caught hold of the complainant and as a result of the same, the deceased succumbed to the injuries. Even though if the statement of the other eyewitnesses is not considered, but in the complaint itself she has specifically deposed the overt acts of the accused persons and even she has identified them in the Test Identification Parade and the description also tallies with the accused persons. Prima facie there is material to connect the accused persons to alleged crime and also corroboration.
8. Taking into consideration the above said facts and circumstances, serious overt acts have been stated as against accused Nos.1 and 2 for having involved in a serious offence committing murder of the deceased. Insofar as accused Nos.3 and 4 have been concerned, they have released on bail. The ground of parity is not applied insofar as accused Nos.1 and 2 are concerned.
Accordingly, the petition stands dismissed.
Sd/-
JUDGE *AP/-