IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.4370/2017 C/W CRIMINAL PETITION NO.5628/2017 IN CRIMINAL PETITION NO.4370/2017 BETWEEN:
R Satheesh @ Bhaskara Aged about 21 years S/o Palani, R/o Ragigudda Slum J.P. Nagar, 2nd Stage Bengaluru-560 078. ... PETITIONER (By Sri Shivaprasad, Adv. for Sri H C Shivaramu, Adv.) AND:
State of Karnataka SHO by Electronic City Police Station Rep. by Public Prosecutor Dr. Ambedkar Veedhi Bangalore-560 001. ...RESPONDENT (By Sri Chetan Desai, HCGP, Sri S Shankarappa, Adv. for Applicant) This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.135/2015 of Electronic City P.S., Bengaluru City and S.C.No.143/2015 pending on the file of VII Additional District and Sessions Judge, Bengaluru (R) District, Bengaluru for the offences P/U/Ss 143, 147, 148, 302, 120(B) read with Section 149 of IPC.
IN CRIMINAL PETITION NO.5628/2017 BETWEEN:
Prashanth @ Gel S/o Shamar Aged about 23 years R/at No.299, Mysore Road Nayanadahalli 10th Cross, 10th Building Ambedkar Nagar Pantharapalya Bengaluru-560 026. ... PETITIONER (By Sri Veeranna Tigadi, Adv. for Sri Ramesha H N, Adv.) AND:
The State of Karnataka Rep. by the Station House Officer Electronic City Police Station Mico Layout Sub-Division Bangalore-560 068. ...RESPONDENT (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.135/2015 of Electronic City P.S., Bengaluru City for the offences P/U/Ss 143, 147, 302, 120(B) read with Section 149 of IPC.
These Criminal Petitions coming on for Orders this day, the Court made the following:
ORDER Since these two petitions are in respect of the same crime number and similar questions of law and facts are involved in both the petitions, they are taken together to dispose of them by this common order in order to avoid repletion of facts and law.
2. Both the petitions are filed under Section 439 of Cr.P.C. seeking regular bail.
3. Crl.P.No.4370/2017 is filed by accused No.4 and Crl.P.No.5628/2017 is filed by accused No.5 seeking their release on bail of the alleged offences punishable under Sections 120B, 143, 147, 148, 302 r/w Section 149 of IPC registered in respondent – police station Crime No.135/2015, now pending in S.C.NO.143/2015.
4. Brief facts of the prosecution case are that, the complainant being the driver of the water tanker filed a complaint stating that on 17.2.2015 the complainant with his owner/deceased Venkarashivaiah was supplying water to the houses in the water tanker and at about 10.00 a.m., both of them went to their respective houses and at about 3.00 p.m. Venkarashivaiah came near his house and told him that since yesterday somebody is calling him to supply the water at Koodlu Village. Hence, both of them went in a Hero Honda Splendor bearing registration No.KA-51-EA- 0256 to see the said house to supply the water and then his owner called through his phone to the said person and in reply the person on the other side asked them to come to near Koodlu Autostand and at that time, a person aged about 20 years, came in Suzuki Motorcycle and asked his owner to follow him and accordingly, they followed him and thereafter they were asked to come near AECS Layout, “B” Block, Koodlu and accordingly they went to AECS Layout, “B” Block, Koodlu. At that time, three unknown persons came in a Pulsar motorcycle and followed his owner and at that time also they did not show the spot to supply water and without any option, the complainant and his owner came back to their houses. Thereafter, on the same day around 6 p.m., his owner asked him to supply the water to the house at AECS Layout, accordingly he supplied water and went to his house. Further, at about 8.00 p.m. the police called the complainant through his owner’s phone and enquired about his owner and informed him that some unknown persons have killed his owner and the police called him to come near AECS Layout, 5th Cross and he rushed to the spot and saw that, his owner was killed by some unknown persons and that the deceased had sustained injuries on various parts of the body.
5. On the basis of the said complaint initially case was registered for the above said offences against four unknown persons, but during the course of investigation, the present petitioners were arrayed as accused Nos.4 and 5 respectively.
6. Heard the arguments of the learned counsel appearing for the petitioner/accused No.4, so also, learned counsel appearing for petitioner/accused No.5 in both the petitions, the learned counsel appearing for the applicant-complainant and the learned High Court Government Pleader appearing for the respondent-State.
7. Learned counsel for the petitioner-accused No.4 submitted that so far as this petitioner is concerned, there is no prima facie case against him. As per the charge sheet material, the main allegations are against accused Nos.2 and 3 that they have assaulted the deceased on the head and other vital parts of the body. Even as per the prosecution case on the voluntary statements of accused Nos.2 and 3 at their instance blood stained clothes and other materials were recovered. The allegation against accused No.4 is that he tried to assault the deceased with the deadly weapon and the deceased brought his hand to prevent the blow and hence, the said blow hit on the ring finger of the deceased and thereby caused injuries. Except this averment, there is no other overt act against the petitioner-accused No.4. He has also submitted that there is no recovery effected at the instance of petitioner-accused No.4. When the main accused persons i.e., accused Nos.2 and 3 have been admitted to bail by the order of this Court, even on the ground of parity, this petitioner is also entitled to be granted with bail.
8. Learned counsel for petitioner-accused No.5 submitted that as per the charge sheet material the allegation as against this petitioner is that he assaulted on the wrist portion of the hand of the deceased.
9. Both the learned counsel have submitted that in the complaint there is no allegation that there are any eyewitnesses to the incident and even the FIR was registered against unknown persons, but only thereafter, the prosecution has planted C.Ws.7, 8 and 22 as eyewitnesses in the case. It is submitted that now the investigation is completed and charge sheet is filed, hence, by imposing reasonable conditions, petitioners- accused Nos.4 and 5 may be admitted to regular bail. In support of their contention, learned counsel have relied upon the order passed by this Court in respect of accused Nos.2 and 3 dated 1.7.2017 in Crl.P.No.9195/2016.
10. Per-contra, learned High Court Government Pleader has submitted that there are three eyewitnesses to the incident namely, C.Ws.7, 8 and 22. There are recoveries effected at the instance of accused persons. Hence, petitioners are not entitled to be granted with bail.
11. Learned counsel for the applicant-complainant has submitted that prosecution materials shows that accused No.1 gave supari to accused Nos.2 to 5 for committing the murder of the deceased and the amount agreed was Rs.5,00,000/- and each of the accused persons have shared an amount of Rs.75,000/-. There is criminal conspiracy between all the accused persons to eliminate the deceased. The statement of eyewitnesses clearly shows the involvement of the petitioners accused Nos.2 to 5 against whom the overt act is attributed. Even the blood stained clothes and weapons are seized at the instance of accused persons. The trial Court has framed totally seven charges against the accused persons. When that is so, it cannot be said that there is no prima facie case as against the petitioners. Hence, submitted that petitioners are not entitled to be granted with bail.
12. I have perused the grounds urged in the bail petitions, FIR, complaint and other materials placed on record, so also, the order of this Court in respect of accused Nos.1, 2, 3, and 6 produced by learned counsel appearing for the petitioners.
13. Looking to the averments made in the complaint it is seen that the complainant who is the driver of the water tanker is not the eyewitness to the incident. It is no doubt true as per the prosecution case, there are three eyewitnesses to the alleged incident. But perusing the order of this Court in respect of accused Nos.2 and 3 against whom serious allegations are made that they were holding deadly weapons and have assaulted the deceased on the head and other vital parts of the body, this Court has already considered the entire merits of the case and by its order dated 1.7.2017 in Crl.P.No.9195/2016 has granted bail to accused Nos.2 and 3. So far as present petitioners accused Nos.4 and 5 are concerned, there are statements to the effect that they were also holding deadly weapons. As per the statement of the said witnesses, accused No.4 said to have assaulted on the ring finger of the deceased and accused No.5 said to have assaulted on the wrist portion of the deceased, which are not considered to be the vital parts of the body. Even in the post mortem report the Doctor who conducted the autopsy over the dead body of the deceased has opined that the cause of death is due to o shock and hemorrhage as a result of multiple injuries sustained by the deceased to the head.
14. It is neither the case of the prosecution nor it is elicited in the material collected during investigation as against these two petitioners and also, there is no allegation in the statement of witnesses that these two petitioners have assaulted on the head of the deceased. Therefore, when accused Nos.2 and 3 against whom there are serious allegations have been already admitted for bail by the order of this Court, to have uniformity and consistency in the Court order in respect of the same crime, I am of the opinion that these are the fit cases to exercise discretion in favour of accused Nos.4 and 5.
15. Accordingly, both the petitions are allowed.
Petitioners/accused Nos.4 and 5 are ordered to be released on bail for the offences punishable under Sections 120B, 143, 147, 148, 302 r/w Section 149 of IPC registered in respondent – police station Crime No.135/2015, subject to the following conditions:
i. Petitioners/accused Nos.4 and 5 shall execute a personal bond for a sum of Rs.1,00,000/- each and furnish one solvent surety each for the likesum to the satisfaction of the concerned Court.
ii. They shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. They shall appear before the concerned Court regularly.
Sd/- JUDGE bkp