IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO. 5842/2017 BETWEEN H.N. Ashray, S/o. Late Neelakantappa H.S., Aged about 26 years, Occ: Agriculturist R/o. Halasuru Village, K. Hosakote Hobli, Alur Taluk, Hassan Dist. – 573 201.
(By Sri C.H. Jadhav, Senior Council, for Smt. Rashmi Jadhav, Advocate) AND State of Karnataka, By Dy.S.P., Sakleshpura Sub Div. (Alur P.S.) Hassan Represented by the State Public Prosecutor, High Court Building, Bengaluru-560 001 (By Sri Chetan Desai, HCGP) ...PETITIONER ...RESPONDENT This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Crime No.28/2017 of Alur Police Station, Hassan, which is registered for the offences punishable under Sections 504 and 302 read with Section 34 of I.P.C. and Sections 3(1)(x) of SC/ST (POA) Act and Sections 3 and 25 of Indian Arms Act.
This petition coming on for Orders, this day, the Court made the following:
ORDER This is the petition filed by accused No.1 under Section 439 of Cr.P.C., seeking his release on bail of the offences punishable under Sections 504 and 302 of I.P.C. and Sections 3(1) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act and so also under Sections 3 and 25 of the Indian Arms Act, registered by the respondent-police in Crime No.28/2017.
2. Brief facts of the prosecution case as per the complaint averments are that the brother of the deceased lodged a complaint wherein he has stated that he was living with his family in Halasur Village along with his parents and the deceased, who is his younger brother. Around four years back he had availed loan of Rs.4,000/-
from one Shobharaj son of late Subbegowda, who is uncle of the petitioner and around 2 years back he had given the said amount to one Bhagyamma to return the same to Shobharaj and subsequently he stopped going to the house of Shobharaj to do coolie work as he had returned the loan amount. Further allegation is that on the night of 23.01.2017 petitioner-accused No.1 came near the house of the complainant and called him out. When the complainant came out of his house, he was questioned by petitioner as to why he had not returned the amount of Rs.4,000/- borrowed from his uncle, for which complainant replied that he had returned the amount. Immediately petitioner caught hold the complainant and started dragging him towards the house of the petitioner- accused No.1, at that time the deceased intervened, in the tussle the deceased questioned the petitioner why he is dragging his brother and stated the petitioner that complainant can come to his house tomorrow. After that, petitioner alleged to have been using filthy language left for his house and returned with a gun and shot on the chest of the deceased when the deceased was standing on the road. Immediately, the complainant and his brother-in-law said to have caught the petitioner took hold of the gun, then the petitioner ran away from the spot. On the basis of the said complaint a case came to be registered for the aforesaid offences.
3. I have heard the arguments of the learned Senior Counsel appearing for the petitioner and also the learned HCGP appearing for the respondent-State.
4. Learned Senior Counsel appearing for the petitioner made the submission that even though it is the case of the prosecution that there are eye-witnesses as CWs.2 to 9, but looking to the statements of the said eye-witnesses there is no consistency in their statements regarding incident. He also made the submission that accused Nos.2 and 3 have already granted bail. He also submitted that there was no intention on the part of the present petitioner and the said incident took place in the spur of moment. It is his further submission that the petitioner is young boy aged about 26 years, has lost his father and he is the only earning member in the family and his mother is suffering from some ailments. Hence, he submits, since, investigation is completed and charge sheet is filed, by imposing reasonable conditions petitioner may be admitted to regular bail.
5. Per contra, learned HCGP made the submission that the material goes to show firstly the petitioner came to the house of the complainant, called him outside and abused him, then he went to his house again and came back by holding a gun which clearly shows intention on the part of the petitioner to kill the deceased. He also made the submission that there are other eye-witnesses also who have stated about the act of the present petitioner who shot on the deceased with the gun and thereby caused the death of the deceased. Hence, he submitted the petitioner is not entitled to be granted with bail.
6. I have perused the grounds urged in the bail petition, F.I.R., Complaint and also the other materials produced by the learned counsel for the petitioner.
7. Looking to the complaint averments, the complainant is eye-witness to the incident who claims that in his presence the incident has taken place. Apart from the complainant there are other independent eye-witnesses as per the case of the prosecution whose statements said to have been recorded by the Investigating Officer during the course of investigation. As per the Post Mortem report and the opinion of the Doctor the cause of the death because of shock and hemorrhage because of gun shot injury on the chest portion. Therefore, it goes to show prima facie that the death has been taken place because of the firing by the present petitioner on the deceased. The alleged offence is under Section 302, which is serous offence. Apart from that there are also alleged offences under the provisions of Indian Arms Act. Hence, considering all theses aspects I am of the opinion that it is not a fit case to exercise discretion in favour of the petitioner. Accordingly, petition is dismissed.
8. In view of the dismissal of the main petition, the prayer sought in I.A. No.1/2017 does not survive for consideration and accordingly I.A. NO.1/2017 stands disposed of.
Sd/- JUDGE SBS*