IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.2262/2017 C/W CRIMINAL PETITION NO.2263/2017 IN CRIMINAL PETITION NO.2262/2017 BETWEEN:
1. V MANJUNATH S/O. LATE. VENKATESH, AGED ABOUT 24 YEARS, R/AT NO.216, 1ST MAIN, 3RD CROSS, CHURCH ROAD, KOTTANURU DINNE, J.P. NAGAR, 8TH PHASE, BENGALURU-21.
2. BASAVA S/O. MUNIYAPPA, AGED 24 YEARS, NEAR BBMP OFFICE, KOTTANURU DINNE MAIN ROAD, KOTTANURU, UTTARAHALLI HOBLI, BANGALORE-62.
(BY SRI MANJUNATH G., ADV.) AND STATE OF KARNATAKA BY JAYAPRAKASH NAGAR PS, ...PETITIONERS BANGALORE (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR), HIGH COURT BUILDING COMPLEX, BANGALORE 01.
(BY SRI.CHETAN DESAI, HCGP) ...RESPONDENT THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN CR.NO.485/2016 (S.C.NO.176/2017) OF JAYA PRAKASH NAGAR P.S., BANGALORE FOR THE OFFENCE P/U/S 143,144,147,148, 450, 427,302,120B R/W 149 OF IPC.
IN CRIMINAL PETITION NO.2263/2017 BETWEEN:
1. SHIVAKUMAR @ BELLARY SHIVA S/O. LATE. KEMPAIAH, AGED ABOUT 31 YEARS, DODDA ALLA HALLI VILLAGE, UAYYANABALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DIST-561201.
2. ANAND R S/O. RAMALINGAIAH, AGED ABOUT 24 YEARS, R/AT NO. 4, BEERAPPA BUILDING, POST OFFICE ROAD, KONNANAKUNTTE, BENGALURU-560085.
3. RAGHU V S/O. VENKATEGOWDA, AGED ABOUT 26 YEARS, DODDA BARAGI VILLAGE, M.C. TALALU POST, SARAGURU HOBLI, MYSORE TALUK AND DISTRICT-571121. (BY SRI CHANDRASHEKAR R P., ADV.) AND STATE OF KARNATAKA BY JAYAPRAKASH NAGAR P.S., BANGALORE. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) (BY SRI.CHETAN DESAI, HCGP) ...PETITIONERS ...RESPONDENT THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN CRIME NO.485/2016 OF JAYAPRAKASH NAGAR POLICE STATION, BENGALURU CITY, FOR THE OFFENCE P/U/S 143,144,147,148,450,427,302,120B R/W 149 OF IPC.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Since these two petitions are in respect of same crime number and since common questions of law and facts are involved in these two petitions, they are taken up together to dispose of them by this common order.
2. Both these petitions are filed by the petitioners/accused under Section 439 of Cr.P.C. seeking their release on bail for the offences punishable under Sections 143, 144, 147, 148, 450, 427, 302 120B read with Section 149 of IPC, registered in respondent – police station Crime No.485/2016.
3. Brief facts of the prosecution case as per the complaint averments that the wife of the deceased lodged the complaint in this case, wherein it is stated that on the intervening night on 10.09.2016 and 11.09.2016 at 2.45a.m., some five persons barged into the house of the complainant i.e., to the room where she and deceased were sleeping. Four persons carried deadly weapons like long and machu and one person carried the torch. They assaulted the deceased on his head, neck and other parts of the body, due to which he succumbed to injuries and died on the spot. The complainant suspects that the act might be the handy work of one Bellary Shiva and his henchmen as there was enmity between Bellary Shiva and the deceased and for the purpose of achieving the object, the deceased has been done to death. On the basis of the said complaint, case came to be registered firstly against Bellary Shiva and others, during the course of investigation the petitioners came to be arrested by the Police.
4. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.1 to 3, so also, the learned counsel appearing for the petitioners/accused Nos.4 and 5, and also the learned High Court Government Pleader appearing for the respondent-State.
5. Learned counsel for the petitioners/accused Nos.1 to 3 during the course of his arguments has submitted that the incident took place in the night, therefore, there is no identity of the accused persons. He also submitted that no test identification parade has been conducted before the Taluka Executive Magistrate in accordance with the procedure under Section 9 of the Evidence Act. He has submitted that the complainant was called to the Police Station by the Police stating that they have arrested the assailants and shown them in the Police Station, wherein it is stated by her that she identified the accused persons. He has further submitted that no identification parade has been conducted. Since from the date of arrest the petitioners are in custody and now the investigation is completed and charge sheet has been filed, hence, submitted that petitioners/accused Nos.1 to 3 may be enlarged on bail.
6. Learned counsel for the petitioners/accused Nos.4 and 5 during the course of his arguments has submitted that sofar as accused Nos.4 and 5 are concerned, there is no overt-act attributed against them. The only allegation against them is that they were keeping watch in the said house. He has also submitted that there is no recovery effected from accused Nos.4 and 5 and the joint recovery effected is not in accordance with law. Since one year accused Nos.4 and 5 are in custody, hence, they may be enlarged on bail.
7. Per contra, learned High Court Government Pleader, has submitted that looking to the prosecution material there is prima-facie case made out by the prosecution against the petitioners. Looking to the statement of C.W.1-complainant and C.W.2-the owner of the house, wherein the complainant and her husband were staying, and also looking to the recovery proceedings under which the blood stained clothes of the petitioners/accused were seized, all these materials put together will make out prima-facie case against each of the petitioners herein. Hence, submitted that petitioners are not entitled to be released on bail.
8. I have perused the grounds urged in the bail petition, FIR, complaint, charge sheet and other materials placed on record.
9. Looking to the FIR, it is no doubt true, it was registered as against Bellary Shiva, who is accused No.1. But perusing the complaint averments, though the incident is said to have been taken place on the intervening night between 10.09.2016 and 11.09.2016, the complainant has stated that she has seen them in the torch light and at the end of the complaint she also stated about the facial features of the persons and they were aged in between 20-30 years. She also stated that she has seen them in the electric light and if she see them again, she will identify them. Therefore, looking to these averments made in the complaint, she has clearly stated that she has seen the assailants in the torch light as well as the electric light. Looking to the other materials collected during investigation, there is recovery of the blood stained clothes and also the statement of C.W.2, who is the owner of the house, who has stated about the presence of accused persons.
But sofar as petitioners/accused Nos.4 and 5 are concerned, as it is rightly submitted by the learned counsel for the petitioners/accused Nos.4 and 5 that there are no overt-acts attributed specifically against them and even there is no recovery from them, but sofar as accused Nos.1 to 3 are concerned, the prosecution material shows that there are prima-facie materials placed against the petitioners/accused Nos.1 to 3. Therefore, in view of these materials collected during investigation, the prosecution placed prima-facie material against petitioners/accused Nos.1 to 3. Hence, Crl.P.2263/2017 filed by the petitioners/accused Nos.1 to 3 is hereby rejected and Crl.P.2262/2017 filed by petitioners/accused Nos.4 and 5 is allowed. Petitioners/accused Nos.4 and 5 are ordered to be released on bail in connection with Crime No.485/2016 registered for the above said offences, subject to the following conditions:
i. Petitioners in Crl.P.2262/2017, (accused Nos.4 and 5) shall execute a personal bond for Rs.1,00,000/- each with one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioners in Crl.P.2262/2017 shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioners in Crl.P.2262/2017 shall appear before the concerned Court regularly.
Sd/- JUDGE BSR