IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.5933/2017 BETWEEN:
Kiran Shetty @ Bombay Kiran @ Gunda S/o Late Ramesh Shetty Aged about 32 years Under Trial Prisoner Central Prison Bangalore Parappana Agrahara Bangalore-560 068.
Permanent Address:
Koppala Padumarnadu Village and Post Moodabidare Taluk Dakshina Kannada District-583 230. ... PETITIONER (By Sri Rajesh Rai K, Adv.) AND:
State by Mandi Police Station Narasimharaja Sub-Division Mysore City Represented by State Public Prosecutor High Court Building High Court Bangalore-560 001. ...RESPONDENT (By Sri Chetan Desai, HCGP Sri B Lethif, Adv. for applicant-complainant) This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr. No.181/2016 of Mandi P.S., Mysuru City, for the offence P/U/S 302 of IPC.
This Criminal Petition coming on for orders this day, the Court made the following:
ORDER This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking his release on bail for the offence punishable under Section 302 of IPC registered in respondent – police station Crime No.181/2016.
2. Brief facts of the prosecution case as per the complaint averments are that the petitioner is the inmate of the Central Prison, Mysore in connection with the case under the Goonda Act. On 10.11.2016 at about 12.45 p.m. one Mustafa, s/o late Ibrahim (deceased), the under trial prisoner No.9359 went near the cell of the petitioner and while returning back, petitioner attacked him with a spoon several times. Though the inmates of the prison and the officers made an attempt to pacify the quarrel, petitioner threatened them by showing the same spoon. However, after some time, he left the injured Mustafa and went to his cell. Thereafter, the officers of the jail shifted the injured Mustafa to K.R.Hospital, Mysore for treatment, but the doctors of the said hospital after examining the injured, declared him as brought dead. On the basis of the complaint, case was registered for the above said offence against the petitioner.
3. Heard the arguments of the learned counsel appearing for the petitioner-accused and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioner during the course of his arguments submitted that there is a delay in lodging the complaint. Though the alleged incident has taken place on 10.11.2016, the spot mahazar was conducted on 13.11.2016. There is further delay in drawing the spot mahazar where the alleged spoon has been seized in the presence of the panch witnesses. Learned counsel submitted that as per the case of the prosecution the inmates of the jail are the eyewitnesses to the incident and that C.Ws.26-33 are concerned, their statements have been recorded on 16.11.2016 after five days of the alleged incident. So far as other eyewitnesses C.Ws.37 to 47 are concerned, their statements were recorded on 19.11.2016 and hence, there is a delay of 9 days in recording their statements. Further, in the FSL report in respect of material object spoon is concerned for the first time it is mentioned that it is a silver spoon, whereas, in the spot mahazar there is no such mention. At every stage there is a delay in the case of the prosecution. It is his further submission that it is impossible to cause such injuries with the help of the spoon. Now the investigation is completed and chargesheet is filed. Hence, by imposing reasonable conditions, petitioner may be admitted to regular bail.
5. Learned High Court Government Pleader has submitted that the complaint averments clearly show that the petitioner caused the injuries on the deceased by using the spoon when the deceased went near the cell of the petitioner. He also submitted that there are eyewitnesses to the said incident who are the inmates of the jail, who are already convicted and undergoing sentence in the prison, as such, there is no reason for them to falsely implicate the petitioner. He has further submitted that the spoon as well as the blood stained clothes of the petitioner were seized at the instance of the petitioner and as per the FSL report, the blood stains on the said objects are one and the same. The petitioner is a rowdy sheeter involved in other cases and hence, he is not entitled to be granted with bail.
6. Learned High Court Government Pleader is also assisted by the counsel who appears for the applicant- complainant, the wife of deceased-Mustafa.
7. I have perused the grounds urged in the bail petition, FIR, complaint and also charge sheet material produced by the learned counsel for the petitioner containing investigation materials.
8. As per the complaint averments petitioner made assault on the deceased with the sharp spoon and caused injuries and it has been witnessed by many of the inmates of the jail. As per the investigation material collected during investigation C.Ws.26-33 so also C.Ws.37-47 are the eyewitnesses to the alleged incident. In their statements they have clearly stated that it is the petitioner who assaulted the deceased by using spoon and caused injuries. The post mortem report shows the cause of death due to multiple injuries sustained by the deceased. The FSL report shows the use of spoon in causing the alleged incident and also the blood stains found on the clothes of the petitioner and the spoon are one and the same.
9. It is no doubt true, as argued by the learned counsel for the petitioner that, there is a delay in recording the statement of the alleged eyewitnesses though they are inmates of the jail. The case has to be appreciated in cumulative effect and not in isolation. When other materials including the expert’s opinion show the involvement of the petitioner in committing the said offence, only on the ground that there is delay in recording the statement of eyewitnesses, the entire material of the prosecution cannot be ignored by this Court.
10. Looking to these materials on record, the prosecution has placed prima facie material as against the petitioner about his involvement in committing the offence under Section 302 of IPC. Hence, it is not a fit case to exercise the discretion in favour of the petitioner.
Accordingly, petition is rejected.
Sd/- JUDGE bkp