IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.648/2019 BETWEEN:
MR. FIROZ SHEIK, AGED ABOUT 31 YEARS, S/O. SHEIK ISMAIL, RESIDING NEAR JYOTHI CIRCLE, ZILLA PANCHAYAT, BEHIND P.W.D.OFFICE, SULLIA KASBA VILLAGE, SULLIA TALUK, D.K-574 239. ... PETITIONER (BY SRI.P.P.HEGDE, ADV.,) AND:
THE STATE-THROUGH THE INVESTIGATING SUB INSPECTOR OF POLICE, SULLIA POLICE STATION, SULLIA TALUK, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA AT BENGALURU-560 001. ... RESPONDENT (BY SMT.NAMITHA MAHESH.B.G, HCGP) THIS CRIMINAL PETITION IS FILED U/S.439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.96/2018 OF SULLIA P.S., D.K., DISTRICT FOR THE OFFENCE P/U/S 498A, 302, 104, 115 R/W SEC.34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition has been filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail in Crime No.96/2018 of Sullia Police Station for the offences punishable under Sections 498(A), 302, 107 and 115 read with Section 34 of IPC.
2. I have heard the learned counsel for petitioner and learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that accused No.1 got married with deceased on 21.02.2016. Thereafter, accused No.1 and his elder sister-accused No.2 used to harass the deceased mentally and physically. It is further alleged that accused No.1 used to harass his wife on the instigation of accused No.2. On 11.08.2018 at 10.30 p.m., accused No.1 and his wife went to the house of the complainant and on the next day, they went to Udupi for marriage function and then on the same day, they went to Uppala Naya Bazar, Kasargod District, Kerala to the house of accused No.2 and they stayed there. On 15.08.2018, accused No.1 and his wife came to accused No.1 house at Sullia. On that day quarrel took place in between accused No.1 and his wife regarding purchase of clothes. It is further alleged that accused No.1, with an intention to cause the death of the deceased for having insulted him, on the same day at about 4.30 p.m., tied her neck with her chudidaar shawl while she was sleeping and caused the murder. The same was informed to the complainant, after verifying the same, a compliant has been registered by the complainant.
4. It is the submission of the learned counsel for the petitioner that there was no demand of dowry as per the contents of the complaint. It is further submitted that the deceased has committed suicide by hanging. As the compliant itself clearly go to show that there was some altercation between the deceased and accused No.1 in respect of purchase of cloths. There are no eye-witnesses to the alleged incident. Further it is submitted that the deceased was a short tempered lady and was not correct. It is further submitted that though the alleged incident has taken place in the house of parents of accused No.1, the said members and the neighbors have not been examined. It is further submitted that except the strangulation mark, no other external injuries were found over the body of the deceased. It is further submitted that already accused No.2 has been released on bail and the charge sheet has been filed. The petitioner/accused No.1 is not required for the purpose of investigation or interrogation. It is further submitted that it is only a concocted and created story making it as murder though the deceased has committed suicide by hanging. On these grounds, he prayed to allow the petition and to release the petitioner/accused No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the Post- mortem report clearly go to show that the death is due to external compression of the neck by a ligature and the findings are consistent with ligature strangulation. It is further submitted that the shawl which has been used for the purpose of commission of the offence has been sent for the opinion. The opinion indicates that the description of the ligature mark around the neck will tally with the confiscated document. It is further submitted that the strangulation mark around the neck clearly go to show that there was brownish coloured pressure abrasion present on the neck and the ligature mark was partially encircling the neck of the deceased with a circumference of 17 cm. That itself clearly go to show that it is a strangulation. It is further submitted that the alleged incident has taken place at about 4.30 p.m., and the accused petitioner, who was there in the house has not given any complaint and not informed the same to the police though it is a unnatural death. Further it is submitted that as per Section 106 of The Indian Evidence Act, 1872. It is the petitioner/accused No.1, who has to explain under what circumstance the death of the deceased has taken place in his house. If no explanation is found, under such circumstance, the accused petitioner is liable to be held for the alleged offence. It is further submitted that the small daughter of the deceased is there with the complainant and if the petitioner/accused No.1 is enlarged on bail, he may threaten the complainant and may tamper with the prosecution evidence. 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 both the parties and perused the records.
7. As could be seen from the contents of the complaint and other materials, it clearly go to show that on the date of alleged incident, some altercation has taken place between the deceased and accused No.1. On the same day at about 4.30 p.m., the deceased died. The only question which remains for the consideration of this Court is whether it is a suicidal death or a homicidal death? and the death has been caused by the petitioner/accused No.1? is the matter, which has to be considered and appreciated only at the time of trial. But as could be seen from the Post-mortem report, the description of ligature mark around the neck indicates that there was a brownish coloured pressure abrasion present on the neck and the ligature mark was partially encircling the neck with a circumference of 17cm and it was horizontally placed below the level of the thyroid cartilage. Even the opinion which has been given indicates that the deceased died due to external compression of the neck by a ligature and the findings are consistent with ligature strangulation. Even the other records clearly indicates the facts that the door of the room was not closed when the said alleged incident has taken place. If really, it is a suicide, she would have completely closed the door and thereafter, she could have committed the suicide. Under the said suspicion circumstance, that too, when the petitioner/accused No.1 was present and he has not explained under what circumstance, the alleged incident has taken place as contemplated under Section 106 of The Indian Evidence Act, 1872 that shows a prima-facie material to connect the accused to the alleged crime for having involved in the offence punishable under Section 302 of IPC. Under the said facts and circumstance, I feel that it is not a fit case to release the petitioner/accused No.1 on bail. Hence, petition is dismissed.
Sd/- JUDGE VBS