IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.7478/2017 Between:
Sri Rajkumar S/o Late Sampangiramaiah Aged about 32 years Residing near No.356 1st Main, A.K.Colony Devasandra, K.R.Puram Bengaluru – 560 036 ...Petitioner (By Smt. Pooja Kattimani, Advocate for Sri Sudhanva D.S., Advocate) And The State of Karnataka By K.R.Puram Police Station Represented by State Public Prosecutor High Court of Karnataka Bengaluru - 560 001 ...Respondent (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 Cr.P.C., praying to enlarge the petitioner on bail in Crime No.116/2017 (S.C.No.813/2017) of K.R.Puram Police Station, Bengaluru for the offence punishable under Section 302 of IPC.
This Criminal petition coming on for orders this day, the Court made the following:
ORDER This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail for the alleged offences punishable under Section 302 of IPC, registered in respondent – police station Crime No.116/2017.
2. Brief facts of the prosecution case as alleged in the complaint are that, deceased is the husband of the complainant and he was an Auto driver. The deceased was married to one Chandrakala twelve years back and due to frequent fights, Chandrakala was murdered by deceased for which the deceased was in custody for two years. Petitioner is the younger brother of Chandrakala and always threatened the deceased of killing. When the complainant was in house, a known person one Shivakumar informed her that her husband and Shivakumar went to the house of the petitioner to enquire about the case filed by the petitioner against the deceased and when he confronted the petitioner, he started to shout at the petitioner and threw chilly powder on the face of the petitioner and stabbed the deceased by knife. Immediately the deceased was taken to the hospital but it was declared ‘brought dead’. Based on the said complaint, case came to be registered against the petitioner for the offence under Section 302 of IPC.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel appearing for the petitioner submitted that, factual matrix of the case goes to show that the deceased along with two others went to the house of petitioner and they have asked the petitioner to withdraw the complaint which was lodged against the deceased, registered for the offence under Section 324 of IPC. Learned counsel further made submission in the tussle and because of the grave and sudden provocation the petitioner herein also assaulted the deceased. Learned counsel further submitted that, at the time of alleged incident, deceased was in a drunken state and the post mortem report and the contents of stomach, fortify the same. It is also the contention of the learned counsel that, looking to these factual aspects of the matter, the alleged incident under Section 302 of IPC will not be attracted, at the most, it may be under Section 304(II) of IPC. Hence, the learned counsel also made submission that there is a delay in recording the statement of CW-2. His statement came to be recorded after four days. Hence, he submitted to allow the petition and to release the petitioner on bail.
5. Per contra, learned High Court Government Pleader made submission that, looking to the post mortem report there are eight external injuries on the body of the deceased. Therefore, it cannot be contended that at this stage that it is because of grave sudden provocation or in exercise of right to private defense. It is also his contention that, though the statement of Shivakumar who accompanied the deceased to the house of petitioner is recorded after four days, but, in the complaint itself, it is specifically mentioned that it is Shivakumar who informed the complainant and narrated about the assault made by the petitioner on the deceased. Hence, he made submission that, when there are eye witnesses to the incident and looking to the post mortem report, it cannot be a case attracting Section 304(II) of IPC. Hence, learned High Court Government Pleader prays to reject the petition.
6. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record and also the order of the learned Sessions Judge, rejecting the bail application.
7. Looking to the contents of complaint and as submitted by the learned High Court Government Pleader, name of Shivakumar is already mentioned in the complaint that it is CW-2 who informed the complainant narrating about the incident and deceased also was stabbed by him, when himself and the deceased went to the house of present petitioner, the incident has happened. Looking to the post mortem report also, the cause of death is because of the injuries sustained as noticed by the doctor and that there are eight external injuries on the body of the deceased. No doubt the very statement of Shivakumar is recorded by the investigating officer after four days, but his name has already appeared in the complaint that he is the person who informed the complainant immediately after the incident. Therefore, looking to these materials, the prosecution has placed prima-facie material against the present petitioner and it is not a fit case to exercise discretion in favour of the petitioner.
Accordingly, the petition is hereby rejected.
Sd/- JUDGE KMV*