IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL PETITION No.4865 of 2019 BETWEEN KISHORE KUMAR @ KISHORE, S/O VENKATESH, AGED ABOUT 35 YEARS, RESIDING AT #1119, M.V. NILAYA, MUNEGOWDA ROAD, RAMASWAMYPALYA, KAMMANA HALLI MAIN ROAD, BANASAVADI, BANGALORE CITY – 560 043.
(BY SRI MANJUNATHA G., ADVOCATE) AND STATE OF KARNATAKA, BY VARTHUR POLICE, BANGALORE (R) DISTRICT – 562 106. REPRESENTED BY LEARNED SPP, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
(BY SRI HONNAPPA, HCGP) …PETITIONER …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CRIMINAL PROCEDURE CODE PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.No.134 of 2018 OF VARTHUR POLICE STATION, BENGALURU CITY FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 341, 120-B, 302 READ WITH SECTION 149 OF INDIAN PENAL CODE.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner, who is accused No.3 in Crime No.134/2018 registered by Varthur Police Station for the offences punishable under Section 143, 144, 147, 148, 341, 120-B, 302 read with Section 149 of Indian Penal Code, 1860 (for short ‘IPC’), has filed this successive petition under Section 439 of Cr.P.C., for grant of bail.
2. The case of the prosecution in brief is that accused No.1-Nagaraja along with other accused including the present petitioner formed into an unlawful assembly with a common object to commit the murder of one Chellakumar, attacked him on 17.05.2018 with deadly weapons in front of the petrol bunk at Kodathi gate and committed murder of Chellakukmar. Subsequently, this petitioner and other accused were arrested. He also moved a bail application in Crl.P.No.7763/2018 along with other accused, which came to be dismissed by this Court on 11.12.2018. Thereafter, again the present petitioner moved a bail petition in Crl.P.No.1191/2019, which also came to be dismissed on 08.05.2019. Therefore, the petitioner has filed this third bail petition on the ground of parity and also on other grounds.
3. Learned counsel for the petitioner contended that the names of the eyewitnesses were not found in the FIR, but were inserted during investigation. CWs.2 to 4 have not at all stated any overt acts against the present petitioner. The allegations made against this petitioner and other co- accused, especially accused Nos.4, 5 and 11 are all similar in nature. A co-ordinate Bench of this Court in Crl.P.No.2808/2019 and Crl.P.3149/2019 granted bail to accused Nos.4, 5 and 11 respectively. The allegations against this petitioner is similar in nature. Therefore, this petitioner is also entitled to bail on the ground of parity. Learned counsel also submitted that even the statement of CWs.2 to 4 cannot be acceptable as they have not at all stated anything against the accused especially against this petitioner and an omnibus statement has been made against all these persons. The Investigating Officer has not conducted test identification parade and this Court granted bail to other accused. Therefore, the present petitioner is also entitled for grant of bail on the ground of parity.
4. Per contra, Sri Honnappa, learned High Court Government Pleader objected the bail petition on the ground that the overt acts attributed against the present petitioner that he has used sword to assault on the face and forehead of the deceased has also caused the death of Chellakumar as per the post-mortem report. The overt act attributed against this petitioner is different from the overt acts attributed against other accused, who were granted bail by this Court in the criminal petitions stated supra. The petitioner has not made out any changed or fresh ground to entertain the successive bail petition for grant of bail. Hence, prayed for rejecting the bail petition.
5. Upon hearing the arguments of learned counsel for the petitioner and the learned High Court Government Pleader and on perusal of the record, no doubt this Court had already rejected the bail petition of the petitioner in Crl.P.1191/2018 on 08.05.2019. Prior to that, a co- ordinate Bench of this Court has also rejected his bail petition in Crl.P.No.7763/2018 on 11.12.2018. The entire case rests upon the statement of CWs.2 to 4 namely, Shankar, Karthik and Murugesh, who are said to be the workers of a petrol bunk which is situated near the place of occurrence of the incident. The statement of the witnesses goes to show that they witnessed the incident and the accused persons assaulted the deceased with sword. These witnesses also identified the accused in the police station. Their statements were recorded by the Investigating Officer. Admittedly, there is no test identification parade conducted by the Investigation Officer during the course of investigation when the petitioner was in judicial custody. Be that as it may. The bail application filed by accused Nos.5 and 11 in Crl.P.3149/2019 and the bail application filed by accused No.4 in Crl.P.No.2808/2019 were allowed by a co-ordinate Bench of this Court. The allegations and the overt acts attributed against accused Nos.4, 5 and 11 are similar to that of the present petitioner. Learned counsel has categorically stated that the overt acts mentioned in the charge sheet is only based upon the voluntary statement made by the accused persons before the Investigating Officer during their custody.
6. Considering all these aspects, without expressing any opinion on the merits of the case in respect of the test identification parade, the omnibus statement made by CWs.2 to 4 and considering that the allegations made against this petitioner is similar to the allegations made against the other accused persons, who were already granted bail by this Court, there is no reason for this Court to differ from the reasons assigned by a co-ordinate Bench of this Court. Therefore, considering the facts and circumstances of the case, the present petitioner is also entitled for bail on the ground of parity. Accordingly, I pass the following:
ORDER The criminal petition is allowed. The petitioner- accused No.3 is enlarged on bail in Crime No.134/2018 of Varthur Police Station, Bengaluru Rural District. He shall be released on bail case subject to the following conditions:
i) The petitioner shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for the likesum to the satisfaction of the Trial Court;
ii) The petitioner shall appear before the Trial Court regularly without fail;
iii) The petitioner shall not tamper with the prosecution witness directly or indirectly; and iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission.
If any of the aforesaid conditions is violated, the prosecution is at liberty to move an application for cancellation of the bail.
SD/- JUDGE mv