IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.4101/2017 BETWEEN:
PRABHU S/O KUMAR, AGED ABOUT 53 YEARS, R/AT #53, B.USMAN KHAN ROAD, KUMBARAGUNDI BENGALURU - 560 002.
(BY SRI.RAM SINGH K., ADV.) AND STATE OF KARNATAKA BY S.J.PARK POLICE STATION BENGALURU - 560 022.
REP. BY GOVERNMENT PLEADER HIGH COURT OF KARNATAKA BENGALURU - 560 001.
(BY SRI.CHETAN DESAI, HCGP) ...PETITIONER ...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.46/2016 (S.C.NO.1045/2016) OF S.J.PARK POLICE STATION, BENGALURU FOR THE OFFENCE P/U/S 302 R/W 34 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 No.1 under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Sections 302 read with Section 34 of IPC, registered in respondent – police station Crime No.46/2016 now pending in S.C.No.1045/2016 on the file of LXVI Addl. City Civil and Sessions Judge at Bengaluru City (CCH-67).
2. Brief facts of the prosecution case as per the complaint averments that complainant is eking his livelihood by running autorikshaw. Parents of the complainant have seven male children and one female child. The last younger brother of the complainant by name Saleem was aged about 26 years, he got married and residing separately at Siddapura and doing coolie work. On 26.03.2016 at about 4.00a.m. the Police informed the complainant that in front of Kuridoddi, Kumbaragundi the younger brother of the complainant has been murdered. Immediately, the complainant went to the said place and found his younger brother was died. It is further alleged that, about several days back there was financial transaction between Saleem and Prabhu and Abdul Kareem, who are residents of Kumbaragundi Layout and said Prabhu and Adbul Kareem stopped in payment of money. On 25.03.2016 at about 10.00p.m. the younger brother of the complainant by name Saleem was near the house and requested for financial help and stated that said Prabhu and Kareem availed loan and stated would get the amount and went to see and when the younger brother of the complainant demanded to pay the amount, there was quarrel and said Prabhu and Abdul Kareem committed murder of the younger brother of the complainant. On the basis of the said complaint, case came to be registered for the said offences.
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. In support of his contentions, learned counsel for the petitioner has relied upon five decisions filed along with the memo dated 06.10.2017.
5. I have perused the grounds urged in the bail petition, FIR, complaint and entire charge sheet material and other materials produced along with the petition.
6. Looking to the complaint, the complainant is an hearsay witness and not an eye-witness to the incident. It is the Police, who informed the complainant about the incident. Looking to the prosecution material collected during investigation, it is the case of the prosecution that C.W.2 Syed Nazeer and C.W.3 Syed Nizam are said to be the eye-witness. I have perused the statement of those two witnesses. No doubt, in the said statement it is stated that accused No.2 Abdul Kareem caught hold the deceased, whereas, accused No.1 assaulted him with his lower and upper limbs and thereby caused the death.
7. I have also perused the further statement of C.W.1/complainant recorded during investigation, wherein it is stated that when the quarrel took place between the deceased and accused Nos.1 and 2 in connection with the amount, at that time, the accused persons with an intention to murder the deceased, assaulted him with their upper and lower limbs and also assaulted on the private part of the deceased and thereby committed the murder. So looking to the further statement of the complainant, same allegations are made against accused Nos.1 and 2 that both of them have assaulted the deceased even on the private part and thereby caused his death, whereas, the statement of the alleged eye-witness C.Ws.2 and 3 shows that it is only accused No.1, who assaulted the deceased and accused No.2 Adbul Kareem caught hold the deceased tightly. Therefore, there is no consistency in the material relied upon by the prosecution. No doubt, as per the medical report the Doctor has given the opinion that the death is because of the injury and the assault on the testicles.
8. Looking to the other material collected by the Investigating Officer during investigation, accused No.2 has been granted bail and similar set of allegations are made against both the accused persons. Investigation is completed and charge sheet has been filed. Hence, I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner.
9. Accordingly, petition is allowed.
Petitioner/accused No.1 is ordered to be released on bail of the offence punishable under Sections 302 read with Section 34 of IPC, registered in respondent – police station Crime No.46/2016, subject to the following conditions:
i. Petitioner has to execute a personal bond for Rs.1,00,000/- and has to furnish one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner has to appear before the concerned Court regularly.
BSR Sd/- JUDGE