IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL PETITION No.6275 OF 2018 BETWEEN:
Sri Krishna Reddy S/o Subbareddy, Aged 32 years, R/o Kadiri Mandal, Ananthapura District, Andrapradesh-515 001. ...Petitioner (By Sri. Veeranna G. Tigadi, Advocate) AND:
State of Karnataka, Rep. by Sub-Inspector of Police, Kolar Town Police Station, District Kolar, Rep. by State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001. ...Respondent (By Smt. B.G. Namitha Mahesh, High Court Government Pleader for R-1 and Sri. Chandrahasa Rai B., Advocate for the complainant) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.223/2017 of Kolar Town Police Station, Kolar and in S.C.No.91/2018 pending on the file of the District and Sessions Judge, Kolar for the offence punishable under Section 302 and 120(B) read with Section 34 of the Indian Penal Code.
This Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioner, who is accused No.3 in S.C.No.91/2008 in the Court of the learned Principal District and Sessions Judge, Kolar, has filed this petition under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as “Cr.P.C.”) seeking his enlargement on bail, in respondent-Police Station Crime No.223/2017 (S.C.No.91/2018), wherein charge sheet has been filed against him for the offences punishable under Sections 302, 120-B read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as “IPC”).
2. The summary of the case of the prosecution is that deceased P.G. Jayaram was working as Secretary in Gownipally Village First Grade Agricultural Co- operative Society. An inquiry was initiated against him with respect to the alleged misappropriation of the funds of the society. It appears that the order passed by the disciplinary authority was challenged by the deceased before the appellate authority, which resulted in acquittal. It is also the case of the prosecution that the deceased had made serious allegations against accused No.1 in the crime about the misappropriation of the funds of the society. Incidentally, accused No.1 was the Chief Executive Officer of the Society.
3. According to the prosecution, on 04.12.2017, accused No.2 at the instance of accused No.1 went to the house of the deceased Jayaram and on the pretext that accused No.1 (who in some of the papers of the prosecution is referred to as the President of the Society), wanted to talk to the deceased, brought him near Kolar Railway Station and accused No.1 was said to be waiting there for the deceased to arrive. When the deceased was said to be talking with accused No.1, at that time, accused No.3, who is said to have been arranged accused No.1 on some consideration and as a contract killer, assaulted the deceased with a wooden club by inflicting blow on his head and other parts of the body. Simultaneously, accused No.1 is also said to have inflicted few blows on the deceased with another club said to have been brought by accused No.3 along with him. The deceased is said to have sustained injuries. As such, initially crime was registered for the offence punishable under Sections 327, 307 read with Section 34 of IPC. However, stating that the deceased succumbed to the injuries on 09.12.2017 while under treatment, Section 302 of IPC came to be substituted in place of Section 307 of IPC. The Police have filed charge sheet accordingly, against three accused including the present petitioner who is accused No.3 in the additional charge sheet filed by the complainant-Police.
4. Learned counsel for the petitioner in his arguments submitted that accused No.1 is already enlarged on anticipatory bail by this Court and accused No.2 is also enlarged on bail. At the first instance, the charge sheet was filed only against accused No.1 on 28.02.2018, which had not mentioned anything about the presence of the eye witnesses during the commission of the crime. However, after arresting the present accused on 01.03.2018, the Police have filed one more charge sheet arraying other accused, including the present petitioner and also coming up with the story that CWs.18 and 19 were eye witnesses to the alleged incident. Learned counsel vehemently submitted that when CWs.18 and 19 are shown to have been acquainted with the details of the deceased, nothing had prevented them about disclosing that they were eye witnesses, to the incident to any of the family member of the deceased, immediately after the incident or in any short period thereof. Whereas, when the incident has taken place on 04.12.2017 their alleged statement given to the Investigating Officer, dated 01.03.2018, which is highly belated, itself raises serious suspicion in the case of the prosecution.
Learned counsel further submitted that absence of any blood stains on the alleged weapon, sticks, said to have been recovered in the case also acts as an addition to the suspicion in the case of the prosecution. Further stating that no motive has been attributed on the part of accused No.3 and that there is no evidence of alleged conspiracy, learned counsel submits that prima facie the prosecution has failed to produce any material regarding the alleged involvement of accused No.3 in the case.
5. The defacto complainant upon his application was permitted to assist the prosecution, has filed his objections, so also, the learned High Court Government Pleader on behalf of the respondent-Police. Both of them in their Statement of Objections, have stated that the Investigating Officer has collected sufficient materials, which prima facie make out a clear case against accused No.3/present petitioner. They have also stated that CWs.18 and 19 are the eye witnesses who have given their statement to the Investigating Officer narrating the entire incident. Further, they have identified the accused and also have acted as panchas for recoveries.
6. The present petitioner was included in this crime after the complainant/Police have filed their charge sheet on 28.02.2018. The said charge sheet accuses accused Nos.1 and 2 for the offence punishable under Sections 302, 120-B read with Section 34 of IPC.
No doubt there was no mention about the involvement of the present petitioner/accused No.3 in the said charge sheet, however, in column No.17 of the said charge sheet, the Investigating Officer has stated that the alleged crime has been committed by accused No.1 and his aids. Except naming accused Nos.1 and 2, the said charge sheet has not stated anything about the other aids of accused No.1, if any, involved in the commission of crime. However, in the same charge sheet, the Investigating Officer has also made a submission that with respect to the other accused, who have involved in the commission of crime after getting the complete information and arresting them and also conducting seizure or recovery, if required, a separate charge sheet would be filed against them under Section 173(8) of Cr.P.C. It is thereafter, additional charge sheet was filed by the complainant-Police, wherein they have arrayed the present petitioner as accused No.3. Therefore, merely because at the first instance the first charge sheet did not bear the name of the present petitioner as an accused, by itself cannot create doubt in the case of the prosecution.
7. The main basis on which the Investigating Officer appears to have arrayed the present accused No.3 as the accused in the present case is based upon the alleged statements said to have been given before him by CWs.18 and 19. A perusal of their statements given under Section 161 of Cr.P.C. before the Investigating Officer, the certified copy of which is produced by the learned counsel for the petitioner for perusal and return at this stage go to show that CWs.18 and 19 claimed to be knowing each other and so also, the deceased. On the date of the alleged incident, both CWs.18 and 19 are said to be present near the railway track where these people were grazing their cattle. At that time, they are said to have seen the deceased at a distance, the person near the railway track talking with another person. After some time, one more person is said to have approached them and that new comer was said to have possessing two clubs with him. After coming to the spot, he is said to have assaulted on the head of the deceased. Immediately, the person who was talking to the deceased is also said to have taken one club from the hand of accused No.3 and he is also said to have assaulted the deceased. Thereafter, it was accused No.2 who is said to have initially brought the deceased to the said spot, once again coming to the said spot, is said to have shifted the injured to the hospital.
8. The said narration of the alleged involvement of the present petitioner in the alleged commission of the crime is mainly based upon the statement of CWs.18 and 19. Though CWs.18 and 19 are not disclosing about they seeing the incident at the earliest point of time, either to the family member of the deceased or to the police, may create some doubt, but the said doubt would not be sufficient to suspect the case of the prosecution at this stage. It is for the Investigating Officer, in the trial to justify with reasons if he has got any, for the delayed recording of statement of CWs.18 and 19 and also for those CWs.18 and 19 also to give explanation if they have got any, for non- disclosure of they being the eye witnesses to the incident either to the family of the deceased or to the Investigating Officer.
9. Therefore, merely there appears to be some delay in recording the statements of CWs.18 and 19 or the fact that they did not appear to have disclosed about they witnessing the incident at the earliest to the family of the deceased, the same would not take away the case of the prosecution and give any benefit to the present petitioner/accused No.3 in the present petition.
10. According to CWs.18 and 19, two clubs have been used in the alleged commission of crime, one by the present petitioner and another by accused No.1. Relying upon the chemical examiners report, learned counsel for the petitioner submits that the absence of any blood stain on the club would also create doubt in the case. No doubt there may be absence of any blood stains on the club, but it is during the trial it has to be ascertained as to when the deceased is said to have been hit or assaulted by using those two clubs, whether he sustained such a bleeding injury spontaneously. So as to making the club also to have blood stains upon it. Because there is all the possibility that after lifting of the club from the contact of the injured part of the body, the blood oozing out from the assaulted part/injury. Thus, it is premature to hold that absence of blood on the club leads to a greater suspicion in the case of the prosecution.
11. Lastly, the very first charge sheet filed by the respondent-Police mentions about the conspiracy, though it does not name the present petitioner in it. However, Section 120-B is also shown to have been attracting in the very first charge sheet filed by them. The very same charge sheet apart from naming accused Nos.1 and 2, also has mentioned that there were some other accomplice in the commission of the crime, the information and details about them has to be investigated, as such, the Investigating Officer has reserved his liberty to file additional charge sheet. Thus, the stage is too early to arrive at any conclusion regarding the alleged absence of any prima facie material regarding conspiracy.
12. Merely because accused Nos.1 and 2 are said to have been enlarged on bail, the circumstance of the case does not warrant to extend the same benefit to the present petitioner/accused No.3, since he stands on a different footing compared to accused Nos.1 and 2. The direct and overt act has been attributed as against the present petitioner in the alleged statements of CWs.18 and 19. Further, though the statements of CWs.18 and 19 also go to show that apart from they claimed to have seen the incident as eye witnesses, they were also said to be panchas for recovery panchanama, whereunder the recovery of weapon/club used in the commission of crime, the motor cycle used by the present petitioner and the cell phone were said to have been recovered at the instance of the present petitioner/accused No.3.
13. According to the statement of these witnesses, even the present petitioner is said to have led them to the place of scene of occurrence and shown them the spot of the offence. In such a scenario, when the prosecution has placed considerable material to prima facie arrive at the conclusion that the Investigating Officer has collected sufficient material against the present accused No.3/petitioner and also considering the fact that the alleged offence is heinous in nature, I am of the view that the present petitioner does not deserves to be enlarged on bail.
Accordingly, the petition stands rejected.
Sd/- JUDGE BMC