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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100309/2021
BETWEEN:
1. PAVAN KUMAR @ PAVAN
S/O. RAMANJINEYALU
AGE: 26 YEARS
OCC: LABOURER
R/O: WARD NO.14,
NEAR WATER TANK
MILLARPET
BALLARI-583 101
2. VIJAY KUMAR @ VIJI
S/O. VARAPRASAD
AGE: 25 YEARS,
OCC: MECHANIC,
R/O: WARD NO.14,
NEAR WATER TANK
MILLARPET,
BALLARI-583 101
...APPELLANTS
(BY SRI ANWAR PASHA B., ADV.)
AND:
1. THE STATE OF KARNATAKA,
(THROUGH BRUCEPET POLICE STATION),
REPRESENTED BY
2
STATE PUBLIC PROSECUTOR,
DHARWAD-580 001
2. KRISHNA V.,
S/O: RAMASWAMY,
AGE: 48 YEARS,
OCC: MASON,
R/O: NEAR WATER TANK,
MILLERPET,
BALLARI-583 101
....RESPONDENTS
(BY SRI RAMESH B. CHIGARI, HCGP FOR R1;
R2-SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 14(A)(2) OF SCHEDULED CASTES AND
SCHEDULED TRIBES (PREVENTION OF ATROCITIES)
ACT, SEEKING TO ALLOW THIS APPEAL AND SET
ASIDE THE ORDER PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDFGE, BALLARI DATED
29.10.2021 AND TO ENLARGE THE APPELLANTS ON
BAIL IN SPL. CASE NO.794/2021 IN CONNECTION
WITH CRIME NO.83/2021 REGISTERED IN BRUCEPET
POLICE STATION, FOR THE OFFENCES UNDER
SECTIONS 302, 201, 34 OF IPC AND SECTIONS
3(2)(va), 3(2)(V) 3(1)(r) 3(1)(s) OF ST/ST (POA)
ACT, 1989 PENDING TRIAL BEFORE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI.
THIS APPEAL IS COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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JUDGMENT
Accused Nos.1 and 2 have filed this appeal challenging the order dated 29.10.2021 passed in Spl. Case No.794/2021 by the I Additional District and Sessions Judge, Ballari on the bail application filed by the appellants, wherein the bail application of the appellants sought in Crime No.83/2021 of Brucepete Police Station registered for the offences punishable under Section 302 read with 34 of IPC and Sections 3(2)(v) of SC/ST (POA) Act, 1989, came to be rejected.
2. The case of the prosecution is that one Krishna V., has filed a complaint stating that his son Rambabu and accused Nos.1 and 2 were friends and all of them used to consume alcohol together. It is further alleged that on 09.05.2021 at about 9.15 p.m., in front of Government Middle Higher Primacy School, 4 Millerpet, Ballari, the deceased Rambabu was consuming alcohol by sitting in his Auto, at that time accused No.2 told accused No.1 that Rambabu was consuming alcohol by sitting in his Auto without calling them, as such he thrown one empty bottle towards Rambabu, who was sitting in the Auto. It is further alleged that the deceased Rambabu on hearing the sound of bottle, get down from the Auto and abused accused No.2 in vulgar language for the said act and assaulted him upon his cheek with his hands. It is further alleged that for the said act of the deceased accused No.2 abused the deceased by taking his caste name and the quarrel was pacified by CW16 - Smt. Eramma. Subsequently accused Nos.1 and 2 went to the shop of CW19 in their motorbike and purchased alcohol and came near Ganesh Temple located at Millerpet and started to consume alcohol, at that time they were discussing about the assault by deceased 5 Rambabu to accused No.2 upon his cheek. As such both of them decided to do away the life of Rambabu and accordingly they went near his house, wherein they did not find him, then they went to the place where deceased parked his Auto and was sitting in the said Auto. It is further alleged that accused Nos.1 and 2 by nicely talking with the deceased, asked to him join with them to consume alcohol and took him near Ganesh Temple, Millerpet and at that time accused No.2 caught hold Rambabu tightly from his behind and accused No.1 assaulted him with stone upon the head of deceased Rambabu and again accused No.2 assaulted with the same stone on his head and also they assaulted with their hands and legs upon his persons, accused No.1 squeezed the neck of Rambabu with his hands. Because of the said act of accused Nos.1 and 2, Rambabu died at the spot and then they took the dead body in their motor bike and threw in 6 the compound of one Bheemappa located at Albagate, Ballari. Accused Nos.1 and 2 have been arrested on 12.05.2021 and they have been in judicial custody since then. Accused-appellant Nos.1 and 2 have filed bail application, which came to be rejected by the I Additional District and Sessions Judge, Ballari by order dated 29.10.2021 in Brucepet P.S. Crime No.83/2021. The appellants have challenged the said order in the present appeal.
3. Heard arguments of learned counsel appearing for the appellants-accused Nos.1 and 2 and learned HCGP for respondent No.1 - State.
4. In spite of service of notice, respondent No.2 remained absent and unrepresented. 7
5. It would be the contention of learned counsel for the appellants that there are no eyewitnesses to the incident and case of the prosecution is based on circumstantial evidence and he submits that there is no motive for the appellants to commit the murder of the deceased. It would his further contention that CWs.14 to 16 only state about the first incident, which took place at 9.15 p.m. on 09.05.2021. He submits that the stone which is said to have been recovered at the instance of accused Nos.1 and 2 is from the open space accessible to all public and that the prosecution has built story only on receipt of the Post Mortem Report and created voluntary statements of the appellants. It is his submission that without considering all these aspects the learned Sessions/Special Judge has 8 rejected the bail application, which requires interference by this Court. With this he prayed for allowing the appeal.
6. Per contra, learned High Court Government Pleader for respondent No.1-State would submit that the offence alleged against appellants-accused Nos. 1 and 2 are heinous offence punishable with death or imprisonment for life. CWs.14 to 16 in their statements have stated regarding quarrel between the deceased and accused Nos.1 and 2, which took place on 09.05.2021 at 9.15 p.m., and that they pacified the quarrel and sent them back from that place. At the instance of accused No.2 blood stained T-shirt and motorcycle and at the instance of accused No.1 stone from the spot have been recovered. The said T-shirt and 9 stone recovered are having blood stains as per FSL report. The Doctor who conducted Post Mortem examination has noted four injuries over the dead body of the deceased and opined that the death is consistent with fatal neck compression. Charge sheet material shows prima facie case against the appellants of the alleged offences. If they were granted bail they will tamper the prosecution witness and flee from justice. It is his further submission that accused No.2 is involved in a criminal case for causing grievous hurt. He submits that the learned Sessions/Special judge considering all these aspects has rightly rejected the bail application of the appellants, which does not call for any interference by this Court. With this he prayed for dismissal of the appeal. 10
7. Having regard to the submission made by the learned counsel for the appellants and the learned High Court Government Pleader for respondent No.1 - State, this Court has gone through the charge sheet records.
8. The accusation leveled against appellants- accused Nos.1 and 2 is that they quarreled with the deceased at 9.15 p.m. on 09.05.2021 for the reason that he did not invite them for consuming alcohol and he was alone consuming alcohol. In that quarrel the deceased slapped accused No.1. The said quarrel has been pacified by CWs.14 to 16. Thereafter appellants secured the deceased and all the three together consumed alcohol and accused Nos.1 and 2 assaulted the deceased with stone and accused No.1 throttled and committed his 11 murder, after that they carried the dead body and threw it in a land. There are no eye- witnesses to the incident and the case of the prosecution is based on circumstantial evidence. CWs.14 to 16 are the eyewitnesses to the first incident which took place on 09.05.2021 at about 9.15 p.m., and there are no eyewitnesses to the second incident where the appellants alleged to have killed the deceased. Since the case of the prosecution is based on circumstantial evidence, each of the circumstances has to be proved at the trial. As charge sheet is filed, appellants are not required for custodial interrogation. Without considering all these aspects, learned Sessions/Special Judge has rejected the bail application of the appellants, which requires interference by this Court. The main objection 12 of the prosecution is that if the appellants are granted bail they will threaten prosecution witnesses, which can be met with by imposing stringent conditions.
9. In the facts and circumstances of the case and the submission of the counsel, this Court is of the view that there are valid grounds for setting aside the impugned order and granting bail to appellants-accused Nos.1 and 2, subject to stringent conditions. Hence, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned order dated 29.10.2021 passed in Spl.Case No.794/2021 by the I Additional District and Sessions Judge, Ballari is set aside. Consequently, the bail application 13 filed by the appellants under Section 439 of Cr.P.C., stands allowed. The appellants- accused Nos.1 and 2 are ordered to be released on bail in Crime 83/2021 registered by the Brucepet Police Station pending in Spl.Case No.794/2021 on the file of I Additional District and Sessions Judge, Ballari, subject to the following conditions:
i) Appellants shall execute personal bonds for a sum of Rs.1,00,000/-
(Rupees One Lakh Only) each,
with one surety for the like sum
to the satisfaction of the
jurisdictional Court.
ii) Appellants shall not indulge in
tampering the prosecution
witnesses.
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iii) Appellants shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
Sd/-
JUDGE Sbs*