IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION No.5215 OF 2017 BETWEEN:
1. MUNIVENKATAPPA, S/O LATE NARASIMHAPPA, AGED ABOUT 72 YEARS, R/AT PANTHANAHALLI VILLAGE, BANGARPET TALUK, KOLAR DISTRICT, PIN CODE – 563114.
2. SHIVAPPA, S/O PEDDAGANTALAPPA @ GANTALAPPA, AGED ABOUT 48 YEARS, R/AT SIDDANAHALLI VILLAGE, BANGARPET TALUK, KOLAR DISTRICT, PIN CODE – 563114.
3. CHOWDAPPA, S/O PEDDAGANTALAPPA @ GANTALAPPA, AGED ABOUT 50 YEARS, R/AT PANTHANAHALLI VILLAGE, BANGARPET TALUK, KOLAR DISTRICT, PIN CODE – 563114.
... PETITIONERS (BY SHRI. VEERANNA G. TIGADI, ADVOCATE) AND:
STATE OF KARNATAKA, REPRESENTED BY:
SUB-INSPECTOR OF POLICE, BETHAMANGALA POLICE STATION, BANGARPET TALUK, KOLAR DISTRICT, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE – 560001.
(BY SHRI. CHETAN DESAI, HCGP.) ... RESPONDENT THIS CRL.P. IS FILED UNDER SECTION 439 CR.P.C BY THE ADVOCATE FOR THE PETITONERS, PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN CR.NO. 41/2017 OF BETHAMANGALA P.S., K.G.F. FOR THE OFFENCE P/U/S 201, 302, 363, 323, 447 R/W 34 OF IPC.
THIS CRL.P. COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This is a petition filed by the petitioners – Accused Nos.1 to 3 under Section 439 of the Cr.P.C. seeking to release them on bail in respect of the alleged offences punishable under Sections 447, 323, 363, 302 and 201 read with Section 34 of the IPC registered in respondent Police Station Crime No.41/2017.
2. Brief facts of the prosecution case as per the complaint averments of the son of the complainant is that, there was dispute regarding landed property between the accused persons and the father of the complainant. The material also goes to show that these petitioners filed a civil suit before the court which came to be decreed in their favour, against which the deceased preferred a Regular Appeal and the matter was pending. The complaint averments also go to show that these three petitioners insisted the deceased to give possession of the landed property, but the deceased refused to give the possession and he continued in possession of the said property. On the fateful night when the deceased was sleeping in the shed built in the landed property, it is stated that the accused persons came there and surrounded him and forcibly took him to a distant place. There, it is stated they had assaulted him and poured petrol on him and immolated him. Due to the burns when he was screaming for help, somebody came and rescued him and shifted him to the Hospital. After coming to know about the said fact, the complainant and his relatives went to the hospital and when enquired, the deceased made a statement that it was Accused Nos.1 to 3 who have done the said act. On the basis of the said complaint, a case came to be registered against petitioners herein.
3. Heard the arguments of the learned counsel appearing for the petitioners - accused and also the learned HCGP for the respondent – State. The counsel made a submission that firstly, the accused No.3 was not at all present at the spot as there was a marriage in the family. In this connection, he has produced a Wedding Card and also photographs, so as to raise the plea of alibi about of the presence of Petitioner No.3 is concerned. Apart from that, it is also his contention that even looking to the prosecution material, the allegations are against Accused No.1 and Accused No.2 that one poured the kerosene and another one lit the fire. So far as Petitioner No.3 is concerned, absolutely there are no allegations about the overt act done by Petitioner No.3. He also made a submission that now the investigation of the case is completed and charge- sheet is filed. The petitioner No.1 is aged about 72 years. Hence, it is the submission of the learned counsel that by imposing reasonable conditions, the petitioners may be enlarged on bail.
4. Per contra, learned HCGP made a submission that there is a dying declaration made by the deceased himself before the complainant narrating in detail about the involvement of all the three petitioners herein in committing the alleged offences. He also made a submission that the material collected during investigation by the Investigating Officer prima facie goes to show the involvement of all the petitioners in committing the alleged offences. Hence, he submitted that in view of these materials collected by the prosecution, the petitioners are not entitled to be granted with bail.
5. I have perused the grounds urged in the bail petition, FIR, complaint and the other material produced by the petitioner along with the petition, so also the entire charge-sheet material made over to the court at the time of hearing the petition. On perusing the complaint averments, it is seen that the son of the deceased who is the complainant has clearly stated that after coming to know their father was admitted to hospital, he went there and enquired his father and that his father narrated about the involvement of all the petitioners who had surrounded him when he was in the bed, and forcibly took him to a place wherein they assaulted him firstly and thereafter poured kerosene on him and immolated him. Though it is contended by the learned counsel for the petitioners by producing the wedding cards and photographs that Petitioner No.3 was not at all present at the spot, but however it is a matter of trial. Since it amounts to plea of alibi, the prosecution must also have an opportunity to cross- examine the defence witness on that ground.
6. At this stage, the court has to see only the prima facie material. Looking to the materials placed on record and in view of the dying declaration, that is oral dying declaration given by the deceased before his son, the complainant so also the dying declaration recorded by the Taluk Executive Magistrate, there is prima facie case as against all the accused persons.
But however, submission is made by the learned counsel appearing for the petitioners that Petitioner No.1 is aged 72 years. This aspect is not denied by the prosecution. Even though there is prima facie material, in view of the extreme old age of Petitioner No.1, he is entitled to be granted bail on imposing reasonable conditions. Whereas, the petition in respect of Petitioners 2 and 3 is liable to be rejected.
7. Accordingly, the petition in respect of Petitioners 2 and 3 who are Accused Nos.2 and 3 is hereby rejected and petition in respect of Petitioner No.1 – Munivenkatappa is allowed subject to the following conditions:
i. Petitioner No.1 shall execute a personal bond for Rs.1,00,000/- and shall furnish one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioner No.1 shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner No.1 shall appear before the concerned Court regularly.
Sd/- JUDGE KS