IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL PETITION NO.7901/2018 C/W CRIMINAL PETITION NO.8100/2018, CRIMINAL PETITION NO.8207/2018 IN CRL.P.No.7901/2018 BETWEEN:
Kushal Naik, S/o Ramanna Naik, Aged about 28 years, R/at Kenet Bail, Perdoor village and post, Udupi Taluk & District – 576 124. … PETITIONER (By Sri Yohan Grace, Adv.) AND:
The State, by Hiriyadka Police Station, Represented by Learned Public Prosecutor, High Court of Karnataka, Bangalore – 560 001. … RESPONDENT (By Smt. Namitha Mahesh, HCGP for State; Sri B.Lethif, Adv. for complainant/victim) IN CRL.P.No.8100/2018 BETWEEN:
Deepak Hegde, S/o Karunakar Hegde, Aged about 34 years, R/at D.No.2-83, Doddamane, Shyanara Bettu, Petdoor Post, Udupi District – 576 124. … PETITIONER (By Sri Dinesh Kumar K.Rao, Adv. for Sri Ravindra B.Deshpande, Adv.) AND:
The State of Karnataka by Hiriadka Police Station, Udupi District – 576 124. … RESPONDENT (By Smt. Namitha Mahesh B.G., HCGP for State; Sri B.Lethif, Adv. for complainant/victim) IN CRL.P.No.8207/2018 BETWEEN:
1. Susresh Mendon @ Soori, Aged about 43 years, S/o late Raju Mendon, R/at Kamala Nilaya, Kalpande, Perdoor village & Post, Udupi Taluk – 576 124.
2. Shailesh Shetty, Aged about 19 years, S/o Shekhar Shetty, R/at Gunduradha Nilaya, Alangaru, Perdoor village & Post, Udupi Taluk & District – 576 124.
3. Chethan Achary, Aged about 22 years, S/o Madhava Achary, R/at 5 cents, Pakkalu, Perdoor village & Post, Udupi Taluk & District – 576 124.
4. Rathan, Aged about 22 years, S/o Ramesh Poojary, R/at Thotadamane, Paapuje, Bommarabettu village, Udupi Taluk & District – 576 124.
5. Umesh Shetty, Aged about 28 years, S/o Vittal Shetty, R/at Gorel, Perdoor village & Post, Udupi Taluk & District – 576 124.
6. Ganesh Naik, Aged about 24 years, S/o Ramanna Naik, R/at Kenet Bailu, Koyithyru, Perdoor village & Post, Udupi Taluk &District – 576 124. … PETITIONERS (By Sri Shashikiran Shetty, Sr. Counsel for Sri Nishit Kumar Shetty, Adv.) AND:
State of Karnataka by SHO, Hiriadka Police Station, Udupi, represented by State Public Prosecutor, High Court Building, Bangalore – 560 001. … RESPONDENT (By Smt. Namitha Mahesh, HCGP for State; Sri B.Lethif, Adv. for complainant/victim) Crl.P.No.7901/2018 is filed under Section 438 Cr.PC praying to enlarge the petitioner on bail in the event of his arrest in Crime No.41/2018 of Hiriadka Police Station, Udupi District for the offence punishable under Sections 143, 147, 148, 341, 427, 302, 120(B), 177, 201, 202, 203 & 221 read with 149 IPC.
Crl.P.No.8100/2018 is filed under Section 439 Cr.PC praying to enlarge the petitioner on bail in Crime No.41/2018 (CC.No.18/2018) of Hiriadka Police Station, Udupi District for the offence punishable under Sections 109, 143, 147, 148, 341, 427, 302, 120(B), 176, 177, 201, 202, 203 & 221 read with 149, 34 & 35 IPC.
Crl.P.No.8207/2018 is filed under Section 439 Cr.PC praying to enlarge the petitioners on bail in Crime No.41/2018 of Hiriadka Police Station, Udupi District for the offence punishable under Sections 143, 147, 148, 341, 427, 302, 120(B), 109, 176, 177, 201, 202, 203 & 221 read with 149 IPC.
These petitions coming on for Orders, this day, the Court made the following:
ORDER 1. Petitioners in these petitions are Accused Nos.1 to 4, 6, 7, 14 & 15 in Crime No.41/2018 of Hiriadka Police Station of Udupi District. Petitioners and others were charge sheeted in the said case for the offences punishable under Sections 143, 147, 148, 341, 427, 302 read with 34, 35, 120(B) & 149 of IPC.
2. The case of the prosecution is as follows:
That petitioners belong to an organization called Bajarang Dal and were opposing cow slaughtering. Deceased Hussainabba was transporting the cows for slaughtering. Therefore, the accused conspired to catch hold of Hussainabba while transporting the cattle and implicate him in the criminal case. In execution of such conspiracy, on 30.05.2018 at 4.00 a.m. near Sinabettu of Perdoor village, accused armed with deadly weapons along with the police intercepted the scorpio vehicle, in which Hussainabba, CWs-3 & 4 were transporting the cattle. On seeing the accused and police, CWs-3 & 4 escaped. Hussainabba was assaulted by the accused and done to death. Accused Nos.8, 9 & 13 – police officers, to conceal the evidence of offence, registered Crime No.40/2018 under Sections 8, 9 & 11 of Karnataka Prevention of Cow Slaughter & Cattle Preservation Act, 1964, Sections 11(1)(a) of Prevention of Cruelty to Animals Act, 1960, & Sections 279, 429 & 379 of IPC. Accused Nos.8 to 13 transported the dead body to an isolated place in Sinabettu. Then accused No.8 obtained a complaint from CW-31 and registered UDR case. Thereafter, CW-1 – brother of the victim filed complaint alleging that accused No.1 and other volunteers of Bajarang Dal have committed the murder of his brother.
3. Accused No.3 apprehending his arrest has filed the petition for anticipatory bail. Earlier bail petitions filed by Accused Nos.2, 4, 6, 7, 14 & 15 were rejected in Crl.P.No.4881/2018 and connected matters, holding that only after filing the charge sheet, the Court can consider whether prima facie materials exist against those accused. It was further held that since investigation is going on, it was not feasible to grant bail to them.
4. Sri Shashikiran Shetty, learned Senior Counsel for Sri Nishitkumar Shetty, the Counsel on record, Sri Dinesh Kumar K. Rao and Sri Yohan Grace representing the petitioners submit that even as per the charge sheet, the petitioners conspired to trap the deceased while illegally transporting the cattle and hand over him to the police and they had not intended to commit the murder. It is further contended that as per the statements of the eye-witnesses – CWs-22 & 23 recorded under Section 164 Cr.PC, the victim had not died at the spot and he was taken by the police in their jeep. It is contended that at the first instance, except accused No.1, the other accused were not named and they were implicated subsequently merely on the ground that they belonged to a particular organization.
5. Learned Counsel Sri B.Lethif representing the victims, submits that he has no written submissions to file. Smt. Namitha Mahesh.B.G., learned High Court Government Pleader and Sri B.Lethif, learned Counsel representing the victims submit that there is sufficient material to show that the petitioners are the culprits. They further submit that the death is homicidal one and before the Investigating Officer, the eye- witnesses have named the petitioners. So far as accused No.3, it is submitted that he is absconding and his detention is required to recover the vehicle involved in the commission of offence.
6. The postmortem report and other medical records show that the victim had sustained 21 injuries and the death is homicidal one. However, the question is, whether there is prima facie material or reasonable 9 CRL.P.No.8207/2018 ground to believe that petitioners are guilty of commission of the murder of Hussainabba.
7. There is no dispute that accused No.8 at the first instance registered Crime No.40/2018 stating that on the credible information of illegal transportation of cattle on 30.05.2018, himself and his team intercepted a scorpio vehicle near Sinabettu and recovered some cattle and the inmates of the vehicle escaped. Therefore, at this stage, there is material to show that the vehicle of the deceased was intercepted at the scene of offence.
8. CWs-3 & 4 were the other inmates of the said vehicle and CWs-22 & 23 were the staff of accused No.8. They are eye-witnesses to the incident. These witnesses have stated that such interception of the vehicle of the deceased was at the instance of accused No.1 and other 7 to 8 people. CWs-22 & 23 in their statement before the Magistrate recorded under Section 164 Cr.PC have stated that victim was shifted from scorpio vehicle to the police vehicle and then he was taken to the police station. CWs-22 & 23 do not state that he was dead or injured.
9. Prima facie there is a missing link in the chain of events as to whether the victim was done to death at the scene of trapping him or he died after he was taken to the custody of the police. However, the name of the first accused consistently appears in the complaint and the statements of the witnesses all along, right from intercepting the victim till he was taken to the Police Station along with the cattle in question. Having regard to such material on record, it is not a fit case to grant bail to accused No.1. However, in view of the above discussion, accused Nos.2, 4, 6, 7, 14 & 16 are entitled to bail.
10. So far as accused No.3, the investigation is already completed. Granting of anticipatory bail, in no way comes in the way of the Investigating Officer interrogating him for any recovery, if required. Therefore, he is entitled for anticipatory bail.
11. Accordingly, Crl.P.No.7901/2018 and Crl.P. No.8100/2018 are allowed. Crl.P.No.8207/2018 is allowed in part. The petition of accused No.1 is rejected. Accused Nos.2, 4, 6, 7, 14 & 15 are granted bail and accused No.3 is granted anticipatory bail in Crime No.41/2018 of Hiriadka Police Station, subject to the following conditions:
(i) Accused No.3 shall appear before the Investigating Officer within ten days from the date of receipt of copy of this order and subject himself for custodial interrogation, if any required.
(ii) Accused Nos.2 to 4, 6, 7, 14 & 15 shall execute personal bonds in a sum of Rs.1,00,000/- and furnish two sureties in the likesum to the satisfaction of the Investigating Officer/concerned Court for their appearance.
(iii) They shall not tamper the witnesses in any manner.
(iv) They shall appear before the Court as and when required for the purpose of trial.
(v) They shall mark their attendance before the Circle Inspector of Police of Udupi Police Circle on alternate Sunday of each month, till the charges are framed.
Sd/- JUDGE KK