IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.9717/2018 BETWEEN:
Sri Praveen Poojary S/o Krishnappa Aged about 42 years R/at Door No.9-128 Janardhana Compound Gorigudde, Nekaramar Mangaluru-572 002.
(By Sri P.P. Hegde, Advocate) AND:
The State through the Police Inspector Mangaluru South Police Station Mangaluru, D.K. District Represented by the State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
(By Smt. Namitha Mahesh B.G., HCGP) …Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.335/2017 (S.C.No.80/2018) of Mangaluru South Police Station, Mangaluru City, for the offences punishable under Sections 143, 147, 148, 120B, 109, 448, 302 and 506 r/w.
Section 149 of Indian Penal Code.
This Criminal Petition coming on for Orders this day, the Court made the following:-
O R D E R This petition has been filed by the petitioner/ accused No.5 under Section 439 of Cr.P.C. to release him on bail in Crime No.335/2017 of Mangalore South Police Station for the offences punishable under Sections 143, 147, 148, 120B, 109, 448, 302, 506 r/w 149 of Indian Penal Code.
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The gist of the complaint is that the deceased had attempted to commit murder of accused No.6 on 16.5.2015. Due to that animosity and vengeance accused No.6 along with other accused persons conspired to take away the life of the deceased. In execution of such conspiracy on 25.12.2017, at 1.10 a.m. in the house of deceased, accused Nos.1 to 5 assaulted him with deadly weapons and caused his death. CW.2 grandmother was the eyewitness to the alleged incident. The accused persons are threatened the eyewitness. On the basis of the information a case has been registered.
4. It is the submission of the learned counsel for the petitioner/accused that earlier complaint was registered against unknown persons and even when the inquest was held and the statement of the witnesses was recorded, therein the name of the petitioner/accused is not found. He further submitted that the Test Identification Parade has been held, but during the Test Identification Parade CW1 has not identified the petitioner/accused. He further submitted that earlier the petitioner/accused No.5 approached this Court and this Court by order dated 7.12.2018 has observed that CW2 has not yet examined. Unless she is examined, the question of identity of accused No.5 cannot be debated. Now CW2 has been examined and she has not supported the case of the prosecution and she has been treated as hostile. It is his further submission that entire case rests on hearsay evidence. Even the other witnesses which are considered to be material have not supported the case of the prosecution and they have been treated as hostile. The custodial detention of the accused would not be necessary. He is ready to give surety and abide by any conditions that may be imposed by this Court. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that petitioner/accused No.5 conspired with other accused persons and thereafter because of the previous animosity he engaged accused Nos.1 to 4 and they assaulted the deceased with lethal weapons. She further submitted that CW4 has identified the petitioner/accused in the police station. She further submitted that CWs.13 and 14 are the persons who have stated in their statement about the conspiracy of the petitioner/accused along with other accused persons. They have not yet been examined. She further submitted that two more cases are pending and the petitioner/accused is involved in a serious offences under Sections 302 and 307 of Indian Penal Code. She further submitted that accused No.5 is a habitual offender and if he is released on bail, again he may indulge in similar type of criminal activities. 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 the parties and perused the records.
7. As could be seen from the records though CW2 is an eyewitness to the alleged incident, when accused Nos.1 to 4 entered and assaulted the deceased with lethal weapons, she has not stated anything about the identity of the petitioner/accused at the place of the alleged incident. As per the charge sheet material the entire allegation which has been made as against the petitioner/accused is that he has conspired with other accused persons and he has committed the murder of the deceased with the help of accused Nos.1 to 4. CWs.13 and 14 are the persons who are yet to be examined who speaks about the conspiracy of the petitioner/accused with the alleged crime along with other accused persons. Under the said facts and circumstances, at this juncture it is not a fit case to release the petitioner/accused on bail, that too when the material witness who speaks about the conspiracy have not been examined.
8. Be that as it may. Even as could be seen from the records, already 27 witnesses have been examined. I think that the trial is in the fag end of the conclusion. Under such circumstances it is not just and proper to release the petitioner/accused on bail.
Hence, the petition stands dismissed.
Sd/- JUDGE *AP/-