IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.151 OF 2019 BETWEEN:
Sri Sunil, Aged about 26 years, S/o. Sumati Sherigar, R/at: Borugudde Badagubailu, Perddor Village and Post, Udupi Taluk and District, Pin Code: 576 124.
...Petitioner (By Sri. Nishit Kumar Shetty, Advocate) AND:
State of Karnataka By SHO, Hiridka Police Station Udupi Represented by SPP High Court of Karnataka Bengaluru – 01.
...Respondent (By Sri. M. Divakar Maddur – HCGP) This Criminal Petition is filed under Section 438 of Cr.PC praying to enlarge the petitioner on bail in the event of his arrest in Cr. No. 41/2018 (C.C.No.18/2018) of Hiriadka Police Station, Udupi District for the offence P/U/S 143, 147, 148, 341, 427, 302, 120B, 109, 176, 177, 201, 202, 203, 221 R/w 149 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 No.5 under Section 438 of Cr.PC to release him on anticipatory bail in Crime No.41/2018 of Hiriadka police station, Bengaluru City for the offence punishable under Sections 143, 147, 148, 341, 427, 302, 120B, 109, 176, 177, 201, 202, 203, 221 R/w Section 149 of IPC.
2. I have heard learned counsel for the petitioner-accused No.5 and learned HCGP for the respondent-State.
3. The case of the complainant is that on 30.05.2018 at 4.00 p.m., the first informant Sri Mohammed Ismail, brother of the deceased Husainabba lodged first information before Hiriadka Police Station alleging that on the same day at 4.00 a.m. his brother Husuinabba who was doing buffalo business, while moving at Perdoor, Seenabettu, accused No.1 Suresh Mendon @ Soori and other Bajarangadal workers formed themselves into unlawful assembly, came in a pick up van and way laid the Scorpio vehicle belonging to Husainabba and assaulted him in the presence of PSI Sri D.N. Kumar and Gopal Naik, driver of PSI (accused No.9). Immediately, two persons ran away from the Scorpio vehicle and these accused have completely damaged the Scorpio vehicle. Therefore, the police and Bajarangdal workers brought the injured to Hiriadka police station, as injured Husainabba last his breathe, again he was taken to the place where he was assaulted by Bajarangdal people. Therefore, first informant lodged the complaint.
4. It is the submission of learned counsel for the petitioner accused that accused Nos.2, 3, 4, 6 to 15 have been released on bail. The petitioner-accused No.5 is also stands on the similar footing. As such on the ground of parity, he is also entitled to be released on bail. He further submits that charge sheet has already been filed. No vital role has been played by the petitioner accused No.5. Whether the deceased died due to the assault committed by the accused or died after he was taken to the custody of the police, there is a missing link in the case of prosecution. This Court has already released accused Nos.2, 3, 4, 6 to 10 and 13 to 15. He further submits that accused No.5 is ready to abide by any of the terms and conditions that may be imposed by this Court and ready to offer sureties, if he is released on bail. On these grounds, he prays to allow the petition and to release the accused petitioner on bail.
5. Per contra, learned HCGP vehemently argued and submitted that the petitioner accused along with other accused assaulted the deceased with stone and caused grievous injuries. Because of the injuries, he has succumbed to injuries. He further submits that the petitioner was present at the time of alleged incident and has damaged the Scorpio vehicle. Further, the accused petitioner formed an unlawful assembly and actively participated in the said crime. He further submits that he may not be available for the purpose of investigation or interrogation, if he is released on bail. He is still required for the purpose of further investigation and for vrecovery. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions of learned counsel appearing for the parties and also perused records.
7. As could be seen from the order of this Court in Crl.P.No.7901/2018, it has been observed that the post mortem report and other medical report discloses the victim has sustained 21 injuries and the death is homicidal one. The question which has been raised by the Court is whether there is prima facie material or reasonable ground to believe that petitioner is guilty of commission of murder. It is further observed that CW-3 and CW-4 are the inmates of the said vehicle and CW- 23 and CW-24 are the staff of accused No.8. They are eye witness to the alleged incident. These witnesses have stated that such interception of the vehicle of the deceased was at the instance of accused Nos.1 and other 7 to 8 people. CW-22 and CW-23 in their statement before the Magistrate recorded under Section 164 of Cr.PC have stated that the victim was shifted from Scorpio vehicle to police vehicle and then he was taken to the police station. They do not state that he was dead or injured. Primafacie there is a missing link in the chain of events as to whether the victim was done to death at the scene of trapping him or he died after he was taken to the custody of the police. The said observation has been made in respect of accused No.3. Accused No.5 is also standing on the same footing.
Then, under such circumstances, on the ground of parity, the accused petitioner is also entitled to be released on bail.
Accordingly, the petition is allowed. The accused petitioner is ordered to be released on anticipatory bail in Crime No.41/2018 of Hiriadka Police Station, Bengaluru for the offence punishable under Sections 143, 147, 148, 341, 427, 302, 120B, 109, 176, 177, 201, 202, 203 and 221 R/w Section 149 of IPC, subject to following conditions;
1. The Petitioner-accused shall execute a personal bond for a sum of Rs.1,00,000/-(Rupees One lakh only) with two sureties for the likesum to the satisfaction of the Investigating Officer/concerned Court.
2. He shall appear before the Investigating Officer within ten days from the date of receipt of copy of this order and subject himself for custodial interrogation, if any required.
3. He shall not tamper the witnesses in any manner.
4. He shall appear before the Court as and when required for the purpose of trial.
5. He shall mark his attendance before the Circle Inspector of Police of Udupi Police Circle on alternate Sunday of each month, till the charges are framed.
Sd/- JUDGE PN/-