IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.7726 OF 2019 BETWEEN:
RAMESH. R, S/O RANGANATHAPPA, AGED ABOUT 41 YEARS, R/AT No.12, 3RD MAIN, 9TH CROSS, AGRAHARA DASARAHALLI, BENGALURU-560 079.
...PETITIONER (BY SRI. HANUMANTHARAYA C.H., ADVOCATE) AND:
STATE OF KARNATAKA BY MADANAYAKANAHALLI POLICE STATION, REPRESENTED BY (STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS, BENGALURU-01) …RESPONDENT (BY SRI.ROHITH.B.J., HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF THE CRIMINAL PROCEDURE CODE, 1973, PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME No.162/2019 OF MADANAYAKANAHALLI POLICE STATION, BENGALURU CITY, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 341, 114, 302, 109 AND 120(B) READ WITH 149 OF THE INDIAN PENAL CODE, 1860.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is arraigned as accused No.3 in the charge sheet filed by the respondent – Madanayakanahally Police Station in Crime No.162/2019, before the Additional Civil Judge (Senior Division) and Chief Judicial Magistrate, Nelamangala, Bengaluru Rural District, for the offences punishable under Sections 143, 147, 148, 341, 114, 302, 109, 120B and 149 of the Indian Penal Code, 1860 (for short, ‘the IPC’).
2. Heard Sri C.H. Hanumantharaya, learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent – State. Perused the records.
3. The brief factual matrix of the case as could be seen from the charge sheet are that the deceased by name, Lakshminarayana, and the accused persons were residents of Machohalli colony and they have long standing dispute between them with reference to Sy. No.88 with regard to the cultivation of a Government gomala land. In this context, it appears that the accused persons were forcibly cultivating the said land and in fact, they were constructing sheds and attempted to sell them. The deceased Lakshminarayana and other witnesses, CWs.7, 8, 9, 10 and 24 were obstructing them. In this context, the accused persons were grinding axe against the deceased Lakshminarayana on the ground that he would cheat accused in informing the concerned Government authorities against the accused persons. It is alleged that the accused persons were making all arrangements to grab the said Government land. Therefore, they wanted to see that the deceased Lakshminarayana is eliminated. In this background, it is alleged that on 15.04.2019 in the afternoon at about 2 p.m., all the accused persons have formed into an unlawful assembly and found that the deceased Lakshminarayana was proceeding on his two wheeler on kabbehalla road in Machohalli colony, towards his house, accused No.1 threw a stone on the deceased and due to the impact of the same, he fell down from his two wheeler, the other accused persons, who were already there waiting in a car bearing registration No.KA-03-AC- 6497, got down from the said vehicle with deadly weapons like long choppers, knives etc. and simultaneously assaulted Lakshminarayana indiscriminately on all the parts of his body. In fact, accused No.1 also threw a stone on the head of the deceased so as to finish him off. The petitioner is also alleged to be one of the conspirators and participants in the said assault. It is alleged that he actually stabbed the said Lakshminarayana on the left side of his stomach with a knife. On seeing the public i.e. eye witnesses to the incident coming to that particular spot, the accused persons ran away from the spot.
4. The learned counsel for the petitioner brought to the notice of this Court that the statements of the eye witnesses and presence of the eye witnesses have all been concocted by the Police subsequently in order to implicate the present petitioner. He points out that the statement of the eye witness, by name, Kum. Mahalakshmi, who is none other than the daughter of the deceased was recorded after four days of the incident though the investigating officer claims that she was very much present at the time of the incident and other eye witnesses were also present. He also contended that in the statement of the said lady recorded under Section 161 Cr.P.C, the presence of eye witnesses and the complainant at the spot was not spoken to by her. As per the learned counsel, the statements of the other eye witnesses i.e., CWs.3 and 4 were also recorded after much deliberation i.e., after a long lapse of more than six days. Other wise than the above, the learned counsel also points out that the eye witness, Kum. Mahalakshmi, also has given statement under Section 164 of the Cr.P.C., before the jurisdictional Magistrate wherein she has made lot of improvements stating about the presence of the other eye witnesses and also the complainant coming to the spot even when the accused were very much there and they ran away from the spot at that particular point of time. He also points out that thereafter, the eye witnesses and the complainant said to have shifted the injured to the hospital and in the hospital, they have given the history of injuries that some unknown persons have assaulted the deceased. Learned counsel also points out that the voluntary statement of accused No.3 was said to have been recorded on 02.06.2019. He would point out that though the said statement run about four pages, it does not disclose any incriminating material and the place where it was actually kept. He has also drawn my attention to the fact that in the charge sheet and in the remand application, petitioner was shown to have arrested on 08.07.2019 and it is stated that on 10.07.2019, there was recovery of a knife which was already washed as per the version of Police and there is no whisper as to on what basis the said knife was recovered at the instance of accused No.3 when there is no statement recorded by the Police filed under Section 27 of the Indian Evidence Act, 1872. Therefore, he contends that the entire statements of the witnesses at this stage cannot be believed and as regards the delay in recording the statements and as to why those witnesses though present, their statements were not recorded has to be explained during the course of evidence and at this stage, there is sufficient ground to enlarge the petitioner on bail.
5. Per contra, the learned High Court Government Pleader submitted that though there is some delay in recording the statement of the eye witnesses, they have specifically stated about the presence of the accused persons and their overt acts and further, they have also identified accused persons in police station. The recovery of knife at the instance of accused No.3 is also established vide mahazar dated 10.07.2019. Therefore, there is sufficient material available on record against the accused No.3 and particularly in a murder case, delay in recording the statement of eye witness should not come in the way of considering the other materials on record. Hence, he pleaded for dismissal of the petition.
6. On careful perusal of the above said submissions made by the learned counsel for the petitioner, it is clear that the said CW.2 has given statement under Section 164 of the Cr.P.C., but she has not stated anything about the presence of any eye witnesses as well as the complainant at that spot. She has also not stated as to why she could not give statement for a period of four days from the date of the incident. The materials otherwise show that she also accompanied the witnesses to the hospital. She was very much present with her family members and in spite of that for a period of four days, she did not disclose about the name of the petitioner as culprit. The statement of the other eye witnesses recorded by the Police disclose that their statements were recorded on 22.04.2019 and the statement of CW.2 was recorded on 19.04.2019. In the statement, they have not specifically stated as to why the statement of those witnesses were not recorded at the earliest point of time. There is no explanation at this particular stage as rightly pointed out by the learned counsel for the petitioner that though they have stated the overt acts of the accused, but when they themselves have stated that they have shifted the injured to the hospital, they have given the history that some unknown persons have assaulted the deceased. Though they were knowing the names of these accused persons particularly the present petitioner and others, they have not disclosed their names. Further added to that, as rightly pointed out by the learned counsel for the petitioner, voluntary statement of accused No.2 was recorded, but when he was not in the custody of the Police, the whole statement becomes inadmissible for consideration at any point of time because the police themselves have stated that the accused was not in custody of the Police as on 02.06.2019. Their arrest was shown to have been made on 08.07.2019 in one place that is in the remand application and in the charge sheet dated 09.07.2019, it shows the recovery of the weapon was said to have been made on 10.07.2019. Even the authenticity of the weapon has to be established during the course of full dressed trial by examining eye witnesses with reference to the said weapon, which has no blood stains as per the mahazar because it was washed by that time.
7. So looking to the above said facts and circumstances of the case and particularly so far as this petitioner is concerned in my opinion there are lot of discrepancies ex facie available on the charge sheet as it is. Therefore, the above said circumstances in my opinion are sufficient at this stage to enlarge the petitioner on bail. Hence, the following :
ORDER The petition is allowed. Consequently, the petitioner (accused No.3) – Ramesh R. shall be released on bail in connection with Crime No.162/2019 registered by the Madanayakanahally Police for the offences punishable under Sections 143, 147, 148, 341, 114, 302, 109, 120B and 149 of the IPC., on the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against him is disposed of.
Sd/- JUDGE sma