IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO. 5525/2018 BETWEEN:
Sager Ahammed @ Seeru, S/o. Late Mohammed Hussain, Aged about 27 years, R/at Jayam Road, Mudagere, Mudagere Taluk, Chikkamangalore District, Chikkmangalore-540052. ...Petitioner (By Sri. Mohan Kumar D, Advocate) AND:
State by Hebbal Police, High Court Government Pleader, High Court of Karnataka, Bengaluru-560 001. ...Respondent (By Smt. Namitha Mahesh B G, 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.191/2016 (S.C.No.174/2017) of Hebbal Police Station, Bengaluru for the offence punishable under Sections 302 and 201 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 under Section 439 of Cr.P.C. seeking him to release on bail in Crime No.191/2016 of Hebbal Police Station, Bengaluru City (S.C.No.174/2017, pending on the file of the LXIII Additional City Civil and Sessions Judge, (CCH-64), Bengaluru City) for the offences punishable under Sections 302 and 201 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. The brief facts of the case is that, the complainant got married with the deceased about 10 years ago and they have a child aged about 8 ½ years. On 18.08.2016 at about 7:00 p.m, complainant received a message about death of his wife, immediately, he approached the jurisdictional police and reported the matter. During the course of the investigation, it is revealed that the accused used to visit the house of the complainant in the absence of the complainant. On the date of the alleged incident, he visited the house of the complainant and he smothered the neck of the deceased and caused the death. Thereafter, the accused- petitioner rode on a motor cycle bearing registration No. KA-04-HT-7584. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that though the accused has approached this Court on an earlier occasion, the bail petitions were dismissed, but the subsequent application is also maintainable under Section 362 of Cr.P.C. He further submitted that the order refusing bail does not bar for a fresh application.
5. Learned counsel for the petitioner, in order to substantiate his said contention, relied upon the decision of the Hon’ble Supreme Court in the case of Babu Singh and Others v/s The State of Uttar Pradesh reported in AIR 1978 SC 527. He further submitted that there are no eye witnesses to the alleged incident and CWs.2, 3 and 4 are the witnesses who have last seen the accused going out of the house. They are not eye witnesses, this Court while considering the bail application has treated them as an eye witnesses which is not correct and as such, the petition is maintainable in law. He further submitted that the accused-petitioner is innocent and detention of the accused will amount to punitive, there being unjustifiable grounds. He further submitted that this Court while passing the order has given an opportunity to file an application after examination of CW.1, but CW.1 is a Police Officer, he has only issued the FIR and nothing more than that. He has not been examined and in spite of issuance of summons, he has not appeared before the Court and accused cannot be kept in custody for a definite period. In that light, he relied upon decision of the Hon’ble Supreme Court in the case of Dr. Vinod Bhandari v/s State of Madhya Pradesh reported in 2015 (1) Crimes 160 (SC). He further submitted that non-examination and delay in examination of the witnesses will be giving right to the accused to be released on bail. The entire material discloses that the petitioner-accused had tried to close the deceased’s mouth, when she started crying, ultimately, she was smothered by the accused and died due to smothering. The accused was not having any intention to cause the death of the deceased. He further submitted that the entire case rests on circumstantial evidence and he is ready to abide by the conditions imposed on him by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that this is the third bail application filed by the petitioner-accused. Already this Court by order dated 27.04.2017 and subsequently on 30.01.2018 has come to the conclusion that the accused-petitioner is involved in the alleged crime, there is prima facie material and the accused- petitioner is not entitled to be released on bail. No new grounds have been made out or any change in circumstance have been put forth to revive the said bail application. The entire material clearly goes to show that the petitioner-accused is involved in a serious offence which is punishable with death or imprisonment for life. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused contents of the complaint and other materials, which has been produced along with the petition.
7. I am not having any difference of opinion in respect of the proposition of law which has been laid down in the above said decisions. It is well established principles of law that whenever the bail application is going to be heard, it has to be heard and decided depending upon the facts and circumstances of the case.
8. With the above observation on careful perusal of records and the orders passed by this Court, it clearly indicates the fact that all the circumstances which the learned counsel for the petitioner is intending to urge have been looked into by this Court and after considering the said facts and circumstances has come to the conclusion that the petitioner has caused the death of the deceased and he has also caused disappearance of the evidence and the Court has also considered the fact that there are no eye witnesses to the alleged incident. After considering the said facts and circumstances, the Court has come to the said conclusion and the petition is dismissed. However, while dismissing the petition, it is observed that an opportunity was given to him to move a bail application after the examination of CW.1, but in the instant case, CW.1 has not been examined, merely because he has not been examined, there is a delay in examination, that will not give a right to the petitioner-accused to be released on bail. Even the Post Mortem Report clearly indicates that there were as many as four external injuries, which reveals as under:-
“EXTERNAL INJURIES:-
(i) Left black eye.
(ii) Multiple semilunar/crescentic shaped nail marks present around the mouth and nostrils, each measuring 1cm x 0.2 cm.
(iii) Abraded contusion present over right side front of middle of neck with crescentic impression of nail mark measuring 1cm x 1.5 cm.
(iv) Contusions (imprint of fingers) with crescentic nail marks present over left side front of middle of neck, four in number, placed one below the other 0.5 cm apart and each measuring 1cm x 1cm.”
9. Even the Doctor has opined that death was due to ‘Asphyxia as a result of combined effect of throttling and homicidal smothering’. All these material clearly indicates involvement of the accused-petitioner in causing the death of the deceased. There is ample material to connect the accused to the alleged offence. There are no good grounds to interfere with the order passed by this Court. This Court cannot sit over the order either as an Appellate Court or Revisional Court. I feel that petitioner has not made out any good grounds so as to entertain the petition.
Hence, the petition stands dismissed.
The trial Court is directed to expedite the trial.
Sd/- JUDGE RB