Pavan Kumar Alias Pavan S/O. ... vs The State Of Karnataka
2021 Latest Caselaw 5159 Kant

                              1




          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:
                            3




                      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,

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

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

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.

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

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

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.

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

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

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

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.

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*