IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO. 207/2019 BETWEEN:
Naveen Kumar @ Naveen S/o. Ellumalai Aged about 23 years R/at # 77, 2nd Cross Ramaswamypalya Kammana Halli Main Road Banasavadi Bangalore City – 560 043. ...Petitioner (By Sri M.V. Charati, Advocate) AND:
State of Karnataka By Varthur Police Bangalore (R) District – 562 106. Represented by Learned SPP High Court of Karnataka Bangalore – 560 001. ...Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in Cr.No.134/2018 (C.C.No.6585/2018) of Varthur Police Station, Bangalore for the offences punishable under Sections 143, 144, 147, 148, 341, 120B, 302 R/W 149 of IPC.
This Criminal Petition coming on for Orders this day the Court made the following:
O R D E R The present petition has been filed by the petitioner/accused No.5 under Section 439 of Cr.P.C. seeking his release on bail in Crime No.134/2018 of Varthur Police Station for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 120B read with Section 149 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The brief facts of the case are that:
The complainant is second wife of the deceased. She got married with the deceased about ten years ago. The deceased had several cases in Banasavadi police station and he had gone to jail on several occasions. Subsequently, he was released on bail about one year back. About three weeks prior to the incident, there was a quarrel between the deceased and accused No.1 – Nagaraja. It is alleged that her husband had assaulted accused No.1. Because of the said act, accused No.1 and his associates were grinding axe against the deceased. Accused No.13 was a friend of accused No.1. The deceased and accused No.1 were living in a room in Kolar. The complainant visited the room of her husband in Kolar to meet him. On 17.05.2018 at about 5.00 p.m., the deceased told to complainant that he is going to see his children from his first wife and accordingly he went along with accused No.13 and one Abhi in a car. At 11.40 p.m., she received a telephone call stating that her husband was murdered near petrol bunk. She immediately rushed to the scene of occurrence and reached there at 2.30 a.m. There she saw the dead body of her husband and several injuries on his face, abdomen, legs and hands. When she asked Abhi, who had accompanied the deceased in a car, she came to know that they were going from Rayasandra towards Kodathi Gate and when they reached Kodathi Gate, accused Nos.1, 3, 4 and 5 came in a Scorpio car and obstructed the car and accused No.13 and other accused on account of previous enmity assaulted him with longs, choppers and knives etc., and committed murder of the deceased. On the basis of which, a case has been registered and charge sheet has also been filed.
4. It is the submission of the learned counsel for petitioner – accused No.5 that already charge sheet has been filed and CWs-2 to 4 are eye witnesses to the alleged incident. But they have not specifically stated that the petitioner – accused No.5 was present at the spot. He has also submitted that they have stated omnibus statement that accused persons have assaulted. Even description of the accused who assaulted whom has also not been stated. Test identification parade has also not been held in accordance with law. It has to be held in police station. He further submitted that one Arun was also along with deceased and he has been left out from the charge sheet. He further submitted that the main witness was one Abhi, who accompanied the deceased in a car, and his statement has not been recorded and no other overt act has been held in this behalf. He further submitted that petitioner – accused No.5 is no way concerned to the alleged crime. He is ready to abide conditions imposed by this Court and ready to offer surety. On these grounds, he prays to allow the petition and to release petitioner-accused No.5 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that there is extra judicial confession made by the accused to one Bramhachari and Yogesh, wherein that he clearly stated that they have purchased lethal weapons and have assaulted the deceased. He further submitted that petitioner – accused No.5 has assaulted with iron long and caused grievous injuries to his chest and other parts of the body. Even Post Mortem report clearly indicates that the deceased has sustained grievous injuries and succumbed to the said injuries. He submitted that there are three eye witnesses to the alleged incident. If the petitioner–accused No.5 is enlarged on bail, he may abscond and may not be available for trial. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which has been produced along with the petition.
7. As could be seen from the contents of the complaint and statement of eye witnesses i.e., CWs-2 to 4, they stated that they have witnessed the alleged incident. But they have not specifically stated that who assaulted with which weapon on which part of the body of the deceased and they have also not stated the specific role of the petitioner–accused No.5 in the alleged incident. One Abhi has accompanied the deceased and he stated that accused persons intercepted the car and thereafter, they assaulted the deceased. But in the charge sheet materials, he has not been mentioned as a witness and his statement has not been recorded. That witness is considered to be a material and fatal witness to the case of the prosecution. If his statement is not before the Court below, then under such circumstances, statements of CWs-2 to 4 is also not going to help the case of the prosecution in any manner. This Court is conscious of the fact that brutal murder has taken place but without there being any cogent and acceptable evidence it cannot be said that it is the accused who has caused death of the deceased. Though in the charge sheet papers it disclose that the said Abhi who accompanied the deceased in the car could not be traced after the incident, even till filing of the charge sheet, it is not a ground to give an excuse to Investigating Agency and during the said period, if he has not been traced and his statement has not been recorded, then under such circumstances, the benefit of doubt should be given to the accused. Under such circumstance, there is no specific overt-acts alleged against petitioner-accused No.5. That too, already when the charge sheet is filed, I feel that by imposing some stringent conditions, if the accused petitioner is ordered to be released on bail, it is going to meet the ends of justice. In the light of discussions held by me above, petition is allowed.
8. Petitioner/accused No.5 is enlarged on bail in Crime No.134/2018 of Varthur Police Station for the offences punishable under Sections 143, 144, 147, 148, 341, 120B, 302 R/W 149 of IPC subject to the following conditions:
1. Petitioner/accused No.5 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance once in 15 days between 10.00 a.m., and 5.00 p.m., before the jurisdictional police station till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall not indulge in similar type of activities. If he again indulges in similar type of activities, the Court below is at liberty to cancel the bail.
SD/- JUDGE nms