IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO. 5232/2019 BETWEEN RAKESH R S/O LATE RAMU AGED ABOUT 22 YEARS #702, 1ST MAIN, 4TH CROSS MUNESHWARANAGARA LAGGERE BENGALURU – 560 019 ... PETITIONER (BY SRI. RANGANATH REDDY R, ADVOCATE) AND STATE BY THE STATION HOUSE OFFICER YELHANKA POLICE STATION BENGALURU CITY REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001 … RESPONDENT (BY SRI. ROHITH B.J., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.222/2018 OF YELAHANKA POLICE STATION, BENGALURU CITY FOR THE OFFENCE P/U/S 143, 147, 148, 120-B, 506(B), 302 R/W SEC.149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner (A3) and the learned HCGP for the Respondent –State. Perused the records.
2. The petitioner is arraigned as Accused No.3 in the charge sheet filed by the respondent-police in Crime No.222/2018 for the offences punishable under Sections 143, 147, 148, 120-B, 302 r/w. 149 of IPC.
3. As could be seen from the charge sheet papers, the factual matrix of the case are that, Accused No.1, the friend of deceased Arun Kumar is alleged to be a rowdy element. The deceased Arun Kumar was in the finance and political field. There were some differences between Accused No.1 and the deceased in respect of some financial transactions and in that context, they became enemies and they were grinding axe against each other. It is alleged that, the deceased was abusing Accused No.1 and his mother and he was also proclaiming that he would kill Accused No.1 as soon as possible. It is also alleged that, having come to know about the attitude of the deceased, Accused No.1 himself has decided to do away with the life of the Arun Kumar and in that regard, he hatched a conspiracy with Accused Nos. 2 to 6. In this context, it is alleged that the whereabouts and movements of the deceased Arun Kumar were very meticulously observed by the accused persons, particularly, it is alleged that on 24.09.2018 at about 12.30 hours in the mid-night, when the said Arun Kumar along with CW.1-Abhishek was proceeding in Fortuner Car and alighted at Amulya Bar near Allalsandra, at that time, Accused Nos. 1 to 4 have pounced upon the deceased Arun Kumar and mercilessly assaulted him with choppers and thereby the deceased suffered serious injuries and he succumbed to the injuries later. On the basis of these factual aspects, the police have laid charge sheet against as many as six accused persons.
4. Sri. Ranganath Reddy R., learned counsel for the petitioner submits that, there is a deep cleavage between the FIR and the further statement of the complainant. It is stated in the FIR that the accused persons came to the spot in Tata India Car and there were five persons in the car and they have all assaulted the deceased. But, in the further statement, it is stated that, actually the alleged car was a Swift Car and only four persons got down from the car, and he presumed that one more person must be there in the car itself. Therefore, by mistake he has stated about the presence of Accused No.5 in the car. Therefore the learned counsel contends that there are some differences and contradictions in the FIR and the further statement. The learned counsel further submitted that, in the further statement made before the Court the specific overt acts of the accused having been stated in omnibus manner, it is stated that all the accused persons have assaulted the deceased. Further, he submitted that there is a long delay in conducting Identification Test Parade. Even Accused No.5 was subjected to Test Identification parade, but the eyewitness has not at all stated about the presence of Accused No.5 and he also contended that, Accused Nos. 5 & 6 have already been released on bail. Therefore, for all these reasons, the petitioner (A3) is also entitled to be enlarged on bail.
5. Per contra the learned HCGP submitted that, the core of the prosecution case is that, Accused Nos. 1 to 4 coming to the spot and getting down from the car, assaulting the deceased and the deceased sustaining injuries and he succumbed to the injuries has been consistently stated by the eyewitnesses. More over, they identified the accused persons in the Identification Test Parade. Otherwise, Accused Nos. 5 & 6 though subjected to Test Parade, they have not been identified by the eyewitnesses. Apart from that, the weapon (long) used in the alleged offence, which was stained with blood, was recovered from this petitioner (A3), which was also stated to be subjected to FSL test, but the report is still awaited.
6. Looking to the above said facts and circumstances, when the eyewitnesses’ version is available, it is not proper for this court to release the petitioner on bail.
7. On careful perusal of the entire materials on record, it is true that there is some discrepancy with regard to the accused persons coming to the spot in a particular car. Earlier it was stated that, the accused persons came in Indica Car and subsequently, it was stated that they came in Swift Car. But, as rightly contended, the facts that, ‘the accused persons coming to the spot holding deadly weapons and assaulting the deceased’ are consistently stated by the eyewitnesses and they have also identified this petitioner as one of the assailant during the course of Test Identification parade and recovery is also made . Though it is stated that there is joint recovery, but at this stage, the court cannot bifurcate the same. However, it shows that, at the instance of the accused, recovery has been made and the recovered article has been subjected to FSL Examination and the result is awaited.
8. In the above facts and circumstances of the case, when there is consistency with regard to the assault, in my opinion, the eyewitnesses’ version at this stage, cannot be easily brushed aside. Hence, the petitioner has not made-out grounds for grant of bail. However, it is made clear that, after examination of the material witnesses, the petitioner is at liberty to file appropriate application. In that eventuality, the trial Court is directed to consider such application afresh in the light of the materials available on record, as on that date.
With the above observation, the petition is dismissed.
KGR* Sd/-
JUDGE