IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL R.B. CRIMINAL PETITION NO.4941 OF 2017 Between:
Kiran @ Kumuda S/o Prakash Aged about 27 years, R/a near Govt.Hospital, Janatha Coloney, Huliyuru Durga, Kunigal Taluk, Tumkur District – 572 130.
... Petitioner (By Sri.Pradeepa N.R, Advocate) And:
The State of Karnataka, Tavarekere Police Station.
... Respondent (By Sri.Chetan Desai, HCGP) This petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.117/2015 of Tavarekere Police Station, Ramanagara District and S.C.No.138/2015 pending on the file of I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru for the offences punishable under Sections 143, 147, 148, 307, 302, 506 and 120B read with Section 149 of IPC and etc.
This petition coming on for Orders this day, the court made the following:
ORDER This is a petition filed by the petitioner/accused No.2 under Section 439 of Cr.P.C seeking his release on bail for the alleged offences punishable under Sections 307 and 302 read with Section 34 of IPC registered by the respondent-police in Crime No.117/2015 now pending in S.C.No.138/2015 on the file of I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru.
2. After investigation was completed, charge sheet came to be filed for the offences punishable under Sections 143, 147, 148, 307, 302, 506 and 120B read with Section 149 of IPC.
3. Brief facts of the case of the prosecution as per the complaint averments is that complainant is stated to be working in a private company in Penya II Stage. On 03.03.2015, complainant had holiday for his work and he was at house. On the same day at about 10.00 a.m, complainant met Nataraja @ Nataraja Kumar near his house where Nataraj was constructing a house and they were discussing about Nataraja’s daughter’s marriage which was recently held. At about 10.15 a.m, one auto rickshaw came from layout side. The complainant and Nataraja gave side to auto rickshaw, but the auto rickshaw did not go forward and stopped there and three persons got down from the auto rickshaw holding longs and suddenly assaulted Nataraja on his body. At that time, the complainant also sustained injuries and one of the assailants had assaulted the complainant with a long on his right hand, head and caused bleeding injuries. When the complainant escaped from them with fear, the assailants assaulted Nataraja with longs on the head and other parts of the body. Nataraja died on the spot. As the auto driver was sitting in the driver seat, the three assailants escaped from the spot in the said auto. The complainant went to Saibaba Hospital, Laggere with the help of his brother-in-law and took treatment. On 03.03.2015, he lodged complaint against unknown persons, on the basis of which a case came to be registered and during the course of investigation, the present petitioner has been arraigned as accused No.2.
4. Heard the arguments of the learned counsel for the petitioner/accused No.2 and also learned HCGP for the State.
5. Learned counsel made submission that at the first instance, a case was registered against unknown persons, but subsequently it is alleged that there are eye-witnesses to the incident and their statements came to be recorded. He further submitted that even looking to the entire charge sheet material, there is no prima facie case as against the present petitioner, of his involvement in committing the alleged offences. He submits that though there was allegation as against one Kumara @ Bandea Kumara-accused No.6 that he assaulted the deceased with dragger, he approached the court seeking his release on bail. This court by an order dated 27.01.2016, passed in Crl.P.No.8574/2015, granted bail to accused No.6. Hence, even on the ground of parity the petitioner is entitled to be released on bail.
6. Per contra, learned HCGP made submission that there are statements of injured eye-witnesses to the incident. Incident took place on 03.03.2015, but the statement of injured witnesses came to be recorded on the very next day i.e., 04.03.2015 and even subsequently also he gave his further statement wherein he identified the present petitioner also as involved in committing alleged offences. He further submitted that looking to the prosecution material, it would clearly go to show the involvement of the present petitioner in committing the alleged offences and the assault made by him on the deceased and thereby causing his death. Hence, he submits that petitioner is not entitled to be granted bail.
7. I have perused the grounds urged in the bail petition, FIR, complaint and the entire charge sheet material produced in the case. Looking to the prosecution materials, the complaint is by one Kalyanaiah, who is also the injured witness. Apart from that one Venkatesh, who is also an eye-witness subsequently identified the present petitioner. The alleged incident took place at about 10.15 a.m in broad day light. Therefore, looking to the statement of injured eye-witness that they have identified the present petitioner as the person who assaulted the deceased with deadly weapon.
8. I have perused the copy of the order passed by this court dated 27.01.2016 in Crl.P.No.8574/2015 wherein this court granted bail to accused No.6 and learned counsel is seeking release of the present petitioner on the ground of parity. I have gone through the said bail order. The reason for allowing the petition in respect of accused No.6 is that the statement of Kalyanaiah was recorded on 30.04.2015. So, because of this delay, the Court observed that petitioner is entitled to be granted bail.
9. But learned HCGP brought to the notice of this court that the statement of eye-witness i.e., Venkatesh came to be recorded on the next day of incident i.e.,04.03.2015 and his further statement came to be recorded on 12.03.2015. Therefore, looking to the very statement of injured eye-witness, they have clearly identified the present petitioner and so far as recording the statement of injured eye-witness, this court has not noticed the same in the bail order dated 27.01.2016 and it has been observed that recording of the statement is on 30.04.2015 which is not the correct fact. Hence, looking to the materials placed on record, I am of the opinion that there is a prima facie case made out by the prosecution as against the petitioner. Hence, he is not entitled to be granted with bail.
Accordingly, criminal petition is rejected.
Sd/- Judge dn/-