IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV CRIMINAL PETITION No.6771/2019 BETWEEN:
Umesha S/o Shivanna Shetty @ Shambhulinga Shetty Aged about 27 years R/at Maragowdanahalli Village K.R.Nagara Taluk Mysuru District-577237. ... Petitioner (By Sri. Lethif.B, Advocate) AND:
The State of Karnataka By K.R.Nagar Police Station Mysuru District-577237 Rep. by SPP High Court Building Bengaluru-560001. ... Respondent (By Sri. K.Nageshwarappa, HCGP) This Criminal Petition is filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in Cr.No.266/2017 (S.C.No.254/2017) of K.R.Nagar Police Station, Mysuru for the offence punishable under Sections 365, 364, 404, 302, 201 of IPC and etc., This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioner is seeking to be enlarged on bail in connection with his detention pursuant to proceedings in Crime No.266/2017(S.C.No.254/2017) for the offences punishable under Sections 365, 364, 404, 302, 201 of IPC.
2. The case made out by the prosecution is that a complaint was filed by Mohanashetty alleging that his brother was married to one Vijaya. It is stated that the complainant, the deceased and the accused were related and they had gone to attend the marriage function. It is further stated that on 26.05.2017 the accused had come to the village and took the deceased to K.R.Nagar on the pretext of some work which has been seen by the witnesses. It is also made out that the deceased was subsequently not traced. Despite enquiry with the accused, it is stated that no proper explanation was forthcoming. Hence, the complaint was lodged suspecting involvement of the accused. The petitioner was arrested on 03.06.2017. The investigation is completed and the charge sheet has been filed and the trial has not yet commenced.
3. The learned High Court Government Pleader opposes the ground of bail and contends that the statement of CW.1 and CW.3 would point out to last seen theory as the deceased was seen last by CW.1 and CW.3 along with the accused. Further CW.14 also has made the statement that the accused had brought the gold ornaments which was seized and handed over to CW.14 which according to the prosecution belongs to the deceased. It is further contended that the offence was committed for the purpose of wrongful gain.
4. The learned counsel for the petitioner contends that admittedly the petitioner and the deceased were first cousins and the motive that is attributed stands on weak footing and the imputation is to be proved during trial.
5. It is further contended that CW.1 and CW.3 are relatives of the deceased and there is no independent evidence as regards sighting of the deceased with the accused to support the last seen theory.
6. Considering that the case rests on circumstantial evidence and also noticing relationship between the accused and deceased and as they are first cousins, that the proof of offence is to be demonstrated and proved during the trial, case is made out to enlarge the petitioner on bail. The petitioner has been in custody since 03.06.2017 and the charge sheet has been filed. The apprehension of tampering of witnesses can be addressed by imposing necessary conditions. The present proceedings cannot be construed to be punitive in nature. It is to be noticed that there are no criminal antecedents as regards commission of similar offence for gain, which remains uncontraverted. It is also noticed that the Sessions Court has merely rejected the application for bail on sole consideration that the circumstantial evidence points out the role of the accused. The approach of the Sessions Judge may not be correct. Accordingly, in light of the above discussion the petitioner is entitled to be enlarged on bail.
7. In the result, the bail petition filed by the petitioner under Section 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in Crime No.266/2017(S.C.No.254/2017) for the offences punishable under Sections 365, 364, 404, 302, 201 of IPC, subject to the following conditions:
(i) The petitioner shall execute a personal bond of `1,00,000/- (Rupees one Lakh only) with one surety for the likesum to the satisfaction of the concerned Court.
(ii) The petitioner shall fully co-operate with the expeditious disposal of the trial and shall not indulge in any criminal activities of like nature henceforth.
(iii) The petitioner shall not tamper with evidence, influence in any way any witness.
(iv) In the event of change of address, the petitioner to inform the same to the concerned SHO.
(v) Subsequent to filing of the final report, petitioner shall mark his attendance in the first week of every month between 10.00 a.m. and 5.00 p.m. before the concerned SHO, till conclusion of trial.
(vi) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.
Any observation made herein shall not be taken as an expression of opinion on the merits of the case.
Sd/- JUDGE ssb