IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.8633/2017 C/W CRIMINAL PETITION NO.8569/2017 IN CRIMINAL PETITION NO.8633/2017 BETWEEN:
Shiva Raja M @ Subhash S/o Munikrishna Aged about 19 years R/o Heelaligi Village Athibele Hobli Anekal Taluk-562 106 Bengaluru Rural District. ... PETITIONER (By Sri Prabhakara T C, Adv.) IN CRIMINAL PETITION NO.8569/2017 BETWEEN:
Santhosh Kumar Y @ Santhosha S/o Yellappa Aged about 29 years Schedule Caste (Adi-Karnataka) Electrician by profession R/o Heelaligi Village Athibele Hobli Anekal Taluk-562 106 Bengaluru Rural District. ... PETITIONER (By Sri Rajanna M V, Adv.) AND:
State of Karnataka By Suryanagara Police Represented by State Public Prosecutor High Court Building Bengaluru-560 001. ...COMMON RESPONDENT (By Sri Chetan Desai, HCGP) These Criminal Petitions are filed under Section 439 of Cr.P.C. praying to enlarge the petitioners on bail in Cr.No.201/2017 (Spl.C.C.No.264/2017) of Suryanagar P.S., Bangalore, for the offences P/U/Ss 143, 147, 148, 341, 302, 120B read with Section 149 of IPC and Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
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, they are taken together to dispose of them by this common order, in order to avoid repetition of facts and law.
2. Crl.P.No.8633/2017 is filed by accused No.6 and Crl.P.No.8569/2017 is by accused No.7, both are under Section 439 of Cr.P.C. seeking their release on bail for the alleged offence punishable under Section 302 r/w Section 34 of IPC and also under Section 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 registered in respondent – police station Crime No.201/2017. After completion of investigation, the Investigating Officer has filed the charge sheet for the offences punishable under Sections 143, 147, 148, 341, 302, 120B r/w Section 149 of IPC and also under Section 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
3. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.6 and 7 and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioner-accused No.7 referring to the prosecution material has submitted that though it is the case of the prosecution that C.Ws.3 to 8 have personally witnessed the incident, but the contents of their statements clearly shows that there is no consistency, which raises doubt as to whether they are really the eyewitnesses to the incident in question. It is further submitted that looking to the prosecution material collected during investigation there is no prima facie case as against these two petitioners to show their involvement in committing the alleged offences. The post mortem report is also not consistent with the other material of the prosecution placed in the case. The post mortem report regarding the contents of stomach is clearly against the other materials. He has submitted that the deceased was a rowdy sheeter having enemies and the possibility of some other persons assaulting him and committing his murder cannot be ruled out in the case. Further, there is a delay in recording the statement of alleged eyewitnesses. Though the incident has occurred on the night of 31.5.2017, the statement of the alleged eyewitnesses came to be recorded only on 2.6.2017. This delay is also not explained by the prosecution. The investigation is completed and charge sheet has been filed. From the date of arrest, petitioners-accused Nos.6 and 7 are in custody. Hence, by imposing reasonable conditions, they may be enlarged on bail.
5. Per-contra, learned High Court Government Pleader during the course of his arguments submitted that there are four eyewitnesses to the incident. Immediately, after the incident their statements have been recorded. Even if there is a small delay, it is properly explained that since accused No.1 was taken to the forest area as another accused was hiding in the forest there was such delay. Referring to the statement of the eyewitnesses, he has submitted that the eyewitnesses have clearly stated that all the accused persons indiscriminately assaulted the deceased with deadly weapons and caused injuries and committed his murder. Referring to the post mortem report also he has submitted that the Doctor has noticed 23 injuries on the body of the deceased. Even the medical evidence is consistent with the case of the prosecution. Hence, he has submitted that in view of these materials, petitioners are not entitled to be granted with bail and requested to reject both the petitions.
6. I have perused the grounds urged in both the bail petitions, FIR, complaint and the entire charge sheet materials produced by the learned counsel for the respective petitioners-accused.
7. Looking to the materials, one Harish is the deceased and his younger brother is the complainant in this case. Looking to the contents of the complaint, he is not an eye witness, but in the complaint, it is stated that on 31.05.2017, his brother Harish went to distribute the marriage wedding cards and then he went to Bengaluru to bring the cloths and he came to the house and during night at 8.30. p.m., he went outside taking his vehicle bearing No.KA-41-Q-8645. At about 11.45 p.m., one Venu came and informed him that Harish has sustained head injury and fallen near Heelalagi Gate and he is laying. He told that one Santhosh informed him and in turn he informed the complainant. Thereafter, himself and Venu went to the said gate and they have seen the brother of the complainant laying sustaining injuries. By the side, there was a stone which was also having the blood stains and on the back side of the neck there was an injury so also on the fingers of both the hands. The vehicle was also laying there. At a little distance, there was a chilli powder seen on the motorcycle and even on the ground also. The slippers of Harish were also scattered. They immediately shifted Harish to Sparsh Nursing Home. But after the doctor examining him declared that he is dead. The Further information in the complaint that one Santhosh, Sandeep, Rajesh went to SFC Palace Bar to have the drinks. Santosh and Keshava returned back at about 10.00 p.m. and Harish- the deceased and Rajappa were still at the Bar. At about 11.45 p.m., one Karthik of his village and Venugopal have seen the motorcycle belonging to the deceased which was lying. Karthik phoned to Santhosh, then Santhosh went near by the motorcycle after seeing chappals which were scattered. There he became panic and he also seen Harish then he phoned to Venue. The further averments in the complaint go to show that about four days back, the deceased catch the fish in the tank. Sandeep the brother of Santhosh was having this in his mind because of that reason Rajesh, Sandeep, Santhosh and his friends Kishore, Karthik and others throwing chilly powder on the face of the deceased when he was proceeding on his motorcycle assaulted him with deadly weapons and thereafter throwing the stone on his head committed the murder of Harish. On the basis of the said complaint, the case came to be registered against accused Nos.1 to 6.
8. Looking to the prosecution materials though the complainant is not an eye witnesses, the prosecution relied upon the statements of CWs.3 to 8 were said to be the eye witnesses and whose statements said to be recorded on 02.06.2017. I have perused the statement of these witnesses.
9. Looking to the statement of the alleged eye witnesses, so far as these two brothers who are accused Nos.6 and 7 their names also they have spoken and they have also stated about the overt acts of assaulting the deceased with deadly weapons along with other accused. Perusing the postmortem report, the doctor who conducted autopsy over the dead body of Harish noticed there were 23 external injuries on the body of the deceased. Some were abrasion injuries and many other were stabbed wounds and the doctor opined that death is because of the multiple injuries sustained. Though it is submitted during the course of the arguments by the learned counsel appearing for the petitioners and on looking to the complaint averments, it is stated only one injury on the head and not spoken about the other injuries said to have been sustained.
Therefore, what is stated in the complaint about the injuries and the statement of the alleged eye witnesses CWs.3 to 8 are, there is no consistency as canvassed but the complainant is not an eye witness, what was informed him he has mentioned in the complaint. But looking to the eyewitness version, they have mentioned that accused persons assaulted with the deadly weapons and caused his murder. The case of the prosecution is supported by the medical evidence and the Court has to see the charge sheet materials on their face value and the Court is not supposed to conduct the mini trial to ascertain the truth or otherwise of the case at this stage. It may not be accepted by the Court at this stage but witnesses have to say how many times each of the assailants assaulted on which part of the body of the deceased. It is only during the course of trial of the case, all those details can be considered by the trial Court. Looking to the materials collected during investigation by the Investigating Officer, the materials prima-facie goes to show the involvements of both these petitioners in committing these alleged offence. Therefore, these are not the fit cases to exercise discretion in favour of both the petitioners to release them on bail. Both the petitioners are hereby rejected.
Sd/- JUDGE Bkp/BS