IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO CRIMINAL PETITION No.938/2017 BETWEEN 1. GANESH S/o ESHWARAPPA AGED ABOUT 44 YEARS RESIDING AT DEVARAHALLI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 213.
2. YASHODHAMMA W/o GANESHAPPA AGED ABOUT 39 YEARS RESIDING AT DEVARAHALLI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 213.
(By Sri M S SHANKARAGULLI, ADVOCATE) AND STATE OF KARNATAKA BH CHANNAGIRI P S CHANNAGIRI – 577 213. REP.BY SPP, HIGH COURT OF KARNATAKA BENGALURU -01.
(By Sri B J ESHWARAPPA, HCGP) …PETITIONERS …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.No.39/2015 (C.C.No.187/2016) OF CHANNAGIRI P.S., DAVANAGERE DISTRICT FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A, 304 R/W 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioners and learned High Court Government Pleader for the respondent-State.
2. A case came to be registered in Cr.No.39/2015 against the accused-petitioners by the Channagiri Police for the offence punishable under Sections 498A, 302 read with Section 34 of IPC and Section 4 of Dowry prohibition Act, 1961.
3. It is the case of the prosecution that on 03.02.2015, at 5.30 p.m. the complainant-Praksha came to the station and lodged a complaint against Ganesha of his village and states that Ganesha after obtaining consent of elders, married Drakshayanamma, who is said to be the sister of the complainant and it is stated that she was physically and mentally tortured by her husband Ganesha for dowry.
He also has illicit affair with Yashodamma, when his sister was pregnant. It is also stated that whenever she conceived, Ganesha was getting the pregnancy aborted so that it will not come in the way of his extra-marital affair. It is also stated that on 02.02.2015, the complainant had gone to attend to a function at Tharalabalu Hunnime function at Channagiri, the said Ganesha and Yashodamma had administered Paracetamol Tablet at 12.10 p.m. in the midnight and when the sister of the complainant complained of uneasiness and vomiting, the complainant after seeing the same took her to the Channagiri Government Hospital and on the basis of the advice, she was admitted to Meggan Hospital at Shivamogga and as she was unable to recover from the effect of the medicine, Drakshayanamma breathed her last at 3.40 a.m. on the said date.
It is stated that during the life time of Drakshayanamma, as she was subjected to torture both physically and mentally and Panchayaths were convened on two or three occasions, And the illicit affair of Ganesha with Yashodamma aggravated the physical and mental torture on Drakshayanamma by Ganesha and Yashodamma.
4. Learned counsel for the accused-petitioners submits that things do not tally between the FIR and the Final report. The learned counsel submits that the discrepancies are apparent regarding the motive. The case was registered for the offence punishable under Section 498A, 302 read with 34 IPC and Section 4 of the Dowry Prohibition Act. Thus, the petitioners are accused Nos.1 and 2 namely, Ganesha and Yashodamma.
5. Learned counsel for the petitioners submits that on filing of the charge sheet, it is stated that Yashodamma lived in the house opposite to the matrimonial house of Drakshayanamma. Accused No.1 and Drakshayanamma’s marriage was celebrated after the same was consented by the elders at Male Mahadeshwara Temple, Yathavanahalli Village, Atttibele Hobli, Anekal Taluk.
6. As per the investigation, accused Nos.1 and 2 were having illicit relationship between them and Drakshayanamma was being subjected to ill-treatment and was forced both physically and mentally. On 02.02.2015, between 1 and 2 a.m., accused Nos.1 and 2 administered Paracetamol tablets forcibly to Drakshayanamma thinking if the said tablets are administered in excessive, there would be every chance of getting miscarriage which may lead to death and administered it. Due to which act, Drakshayanamma developed trouble and pain and was admitted to Meggan Hospital at Shivamogga and at 2.55 a.m. on 03.02.2015 she breathed her last. There are no substantial discrepancies in the prosecution version.
7. Learned counsel for the accused-petitioners would submit that the total theory of the prosecution is based on FIR and final report. He submits that accused Nos.1 and 2 had illicit affairs. Insofar as FIR is concerned, it is stated that accused Nos.1 and 2 are spouses and though accused No.1 was the legally wedded husband of Yashodamma-
accused No.2, married Drakshayanamma (now deceased) and accused No.1 had arranged separate house for Yashodamma and Drakshayanamma. Again mental and physical cruelty is stated to have been posed by accused Nos.1 and 2. Learned counsel for the accused-petitioners would submit that the petitioners were arrested on 01.12.2016 and the investigation is completed.
8. Learned High Court Government Pleader would submit that the intentions of accused Nos.1 and 2 have been illegal, immoral as they never wanted deceased Drakshayanamma to conceive and give birth to the child as it may be entitled for property.
9. The investigation of the case is complete and the charge sheet was filed on 9.3.2016. Earlier accused Nos.1 and 2 had moved an application for bail under Section 439 of Cr.P.C. in Crl.Misc.No.932/2016 which came to be dismissed on 5.1.2017, earlier to which the application filed for grant of anticipatory bail before this Court in Crl.P.No.2848/2015 was dismissed on 24.06.2015.
Similarly, the petition filed by accused Nos.1 and 2 after the filing of the charge sheet for the offence punishable under Section 304 read with 34 IPC and the application under Section 438 of Cr.P.C. for grant of anticipatory bail was dismissed in Crl.P.No.2169/2015 was dismissed by this Court with a direction to the petitioner-accused No.2 Yashodamma to approach directly under Section 439 of Cr.P.C. after surrendering before the Court and it is to be seen that after the dismissal of the second anticipatory bail application, the petitioner-Yashodamma chooses to file application under Section 438 Cr.P.C. for anticipatory bail and did not surrender before the Court and moved an application under Section 439 of Cr.P.C. Thus, it cannot be the case of accused No.2 that she has followed the direction of this Court in tandem. The accused persons surrendered before the District Court, Davanagere on 1.12.2016 wherein the investigation was completed. It is to be seen that the petitioner No.2 Yashodamma despite this Court directing her for surrendering, chooses to file one more application under Section 438 of Cr.P.C. The application filed so far are as under;
i) Crl.P. No.2169/2015 disposed of on 22.4.2015 with the observation that the petitioner- Yashodamma may directly approach the Court under Section 439 of Cr.P.C. by way of surrendering before the Police or Court.
ii) Crl.P. No.2848/2015 under Section 438 filed by accused No.1-Ganesha before this Court for grant of anticipatory bail case came to be dismissed on 24.06.2015.
10. Thus, individually, two applications were filed by accused Nos.1 and 2. Thereafter, the accused persons filed Crl.No.5368/2016 under Section 438 Cr.P.C. before this Court and the same was rejected on 17.10.2016 and it was thereafter they were arrested and an application came to be filed before learned District Judge, Davanagere. Regard being had to the fact that two applications under Section 438 of Cr.P.C. were filed by accused Nos.1 and 2 and the 3rd application jointly. The conduct of the petitioners does not inspire confidence. The investigation is completed and now the matter is said to have been committed. Until the Court frames charges against accused persons and completes examination of CW.1, releasing the accused persons is uncalled for. More particularly, when the previous bail applications under Section 439 of Cr.P.C. was dismissed after submission of final report and the present application does not reflect any change of circumstances from previous one.
Hence, the criminal petition is dismissed. However the petitioners may move a fresh bail application after the examination of CWs.1 and 2.
Sd/- JUDGE mv