Shivappa And Ors vs The State And Anr
2021 Latest Caselaw 2619 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 6TH DAY OF JULY, 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

         CRIMINAL APPEAL No.200105/2021


BETWEEN:

1.    Shivappa S/o. Malappa Biradar
      Age: 45 years, Occ: Agriculture

2.    Vithal S/o. Laxman Biradar
      Age: 32 years, Occ: Agriculture

3.    Shivappa S/o. Kobbanna Pujari
      Age: 25 years, Occ: Agriculture

4.    Kumar S/o. Lagamanna Biradar
      Age: 19 years, Occ: Agriculture

5.    Revappa S/o. Mahadevappa Biradar
      Age: 24 years, Occ: Agriculture

6.    Kenchappa S/o. Toppanna Biradar
      Age: 58 years, Occ: Agriculture

      All are R/o. Tontapur village
      Tq: Sindagi, Dist: Vijayapur
                                          ...Appellants

(By Sri Anil Kumar Navadagi, Advocate)
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AND:

1.      The State of Karnataka
        Through Almel Police Station
        Tq: Sindagi, Dist: Vijayapur
        By the Additional
        State Public Prosecutor, High Court
        of Karnataka, Kalaburagi Bench

2.      Dayanand S/o. Huchappa Madar
        Age: 28 years, Occ: Coolie
        R/o. Tontapur village, Tq: Sindagi
        Dist: Vijayapur - 586202
                                               ... Respondents

(By Sri Sharanabasappa M. Patil, HCGP for R1;
R2 served)

        This Criminal Appeal is filed under Section 14A(2) of
SC/ST (PA) Act praying to allow the appeal and set aside
the    order   dated   05.04.2021   in   Crl.Misc.No.330/2021
rejecting the bail petition filed by the appellants under
Section 439 of Cr.P.C. and enlarge the appellants on bail in
Crime No.14/2021 of Almel P.S. of Vijayapura district
which is now pending on the file of II Addl. Dist. &
Sessions Judge/Spl. Judge, Vijayapura in Spl.Case SC/ST
No.24/2021 registered for offences under Sections 143,
147, 148, 323, 324, 326, 341, 307, 504, 506 read with
Section 149 of IPC and Section 3(1)(r)(s) of SC/ST PA Act,
2015.


        This Appeal coming on for Admission this day, the
Court delivered the following:
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                       JUDGMENT

The appellants/accused Nos.3 to 5 and 9 to 11 have

filed this appeal under Section 14A (2) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 ( for short, 'SC/ST (PA) Act') challenging the

order dated 05.04.2021 passed in Crl.Misc.No.330/2021 on

the file of II Additional Sessions Judge, Vijayapura,

pending in Special Case (SC/ST) No.24/2021, whereby the

learned Sessions Judge has rejected the application filed

by the appellants under Section 439 of Cr.P.C.

2. The factual matrix leading to this case are that

on 27.02.2021, at about 8.00 p.m., the present appellants

along with other accused persons were proceedings from

Arjunagi to Vibhutihalli village and they were lighting fire

crackers in procession and it was passing in front of the

house of CW.12. Then, CW.12 has requested the accused

persons to light the crackers at some distance as the oxen

are frightened. Then the present appellants along with

other accused persons abused CW.12 and assaulted. Then

the complainant and CWs.6 to 11 intervened and they

were also abused. In the said tussle, some injuries have

been caused to CWs.6, 7, 8 and 12. It is further alleged

that then CWs.1, 11 and 14 were shifting CW.12 in tum-

tum vehicle in order to go to Almel for providing him

treatment and on the way, the present appellants and

other accused persons have blocked the road by using a

iron loaded tractor-trailer and then, the present appellants

and other accused persons picked up quarrel with the

complainant and others. It is also alleged that the present

appellant No.1/accsued No.3 has assaulted by stick on the

head of CW.12, appellant No.2/accused No.4 has assaulted

CW.11 by iron road on his head and appellant

No.3/accused No.5 has assaulted CW.14 by club on his

head and chest causing injuries. It is further alleged that

the other appellants and other accused persons abused

them in filthy language with reference to their caste and

also instigated others to take away the life of CWs.11, 12,

13 and they have sustained grievous injuries. In this

regard, a complaint came to be lodged. On the basis of

the complaint, the investigating officer has issued FIR in

Crime No.14/2021 of Almel police station for the offences

punishable under Sections 143, 147, 148, 323, 324, 326,

341, 307, 504, 506 read with Section 149 of IPC and

under Section 3(1)(r)(s) of SC/ST (PA) Act. Subsequently,

after completion of the investigation, the investigating

officer has also submitted the charge sheet against the

present appellants and other accused persons. The

present appellants are arrayed as accused Nos.3 to 5 and

9 to 11 in the charge sheet and in the FIR, they are shown

as accused Nos.3 to 5, 10, 14 and 15. The appellants

were arrested and were produced before the Special Court

and then they were remanded to judicial custody.

3. The appellants have filed a petition under

Section 439 of Cr.P.C. for enlarging them on bail before

the II Additional Sessions Judge, Vijayapura. But, the

learned Sessions Judge by his order dated 05.04.2021 has

rejected the bail petition filed by the appellants on the

ground that the investigation is still under progress and

certain overt-acts have been alleged against the present

appellants. Thereafter, the appellants have filed a criminal

petition before this Court under Section 482 of Cr.P.C. and

subsequently, they have withdrew it and filed this appeal

under Section 14A(2) of the SC/ST (PA) Act challenging

the impugned order of the learned Sessions Judge and

sought for setting aside the impugned order by admitting

the appellants on bail.

4. Heard the arguments advanced by the learned

counsel for the appellants and learned High Court

Government Pleader for respondent No.1 - State.

Respondent No.2 though served, is unrepresented.

Perused the records.

5. The learned counsel for the appellants would

submit that the appellants have been falsely implicated in

this case and in the complaint, no specific overt-acts have

been alleged but, only in subsequent statement of the

complainant, specific overt-acts have been alleged that too

after 15 days from the date of the incident. It is further

alleged that no specific overt-acts or role is assigned to the

appellants and some of the accused persons have been

granted anticipatory bail by the learned Sessions Judge,

but, the ground of parity is not made applicable to the

present appellants. It is also asserted that the appellants

are permanent resident of Tontapur village in Vijayapura

district, possessing movable and immovable properties

having deep roots in the society. It is also contended that

the appellants also undertake to abide by the terms and

conditions to be imposed by this Court. Hence, it is prayed

for admitting the appellants on bail by setting aside the

impugned order of the learned Sessions Judge.

6. Per contra, the learned High Court Government

Pleader has seriously resisted the appeal on the ground

that there are specific overt-acts alleged against the

present appellant Nos.1 to 3, who are accused Nos.3 to 5

in the charge sheet. He further contended that all the

appellants with common intention abused the complainant

and other witnesses with reference to their caste and

attacked them by using clubs and iron rods and that too

they attacked on vital part of the body i.e., head, causing

grievous injuries to some witnesses and simple injuries to

complainant and others. It is asserted that prima facie

material clearly discloses that the appellants by abusing

the complainant and others with reference to their caste,

having brutally assaulted having knowledge of the

consequences and hence, he contended that the learned

Sessions Judge is justified in rejecting their bail petition

and he further apprehends that in case the appellants are

enlarged on bail, there is every possibility of they

tampering the prosecution witnesses and jumping bail.

Accordingly, he has sought for dismissal of the appeal.

7. Having heard the arguments and perusing the

records, it is evident that the present appellants have been

charge sheeted for the offences punishable under Sections

143, 147, 148, 323, 324, 326, 341, 307, 504, 506 read

with Section 149 of IPC and under Section 3(1)(r)(s) of

SC/ST (PA) Act. The allegations disclose that initially the

incident has taken place on 27.02.2021, at about 8.00

p.m., in front of the house of CW.12 and he objected the

present appellants for firing crackers and he was assaulted

by abusing with reference to caste. It is further alleged

that then CW.12 was being shifted in tum-tum vehicle to

Almel for treatment. But, the appellants and other

accused persons blocked the road and appellant Nos.1 to

3/accused Nos.3 to 5 attacked the victims by iron rods and

clubs while other accused persons assaulted them by

hands and abused them in filthy language with reference

to their caste.

8. The learned Sessions Judge has rejected the

bail petition on the ground that the investigation is still

pending. However, now it is evident that the charge sheet

has been already submitted and the present appellants are

alleged to be in custody from 02.03.2021. However, the

allegations regarding caste is that they were abused the

complainant and other witnesses with reference to their

caste asserting that 'K ªÀiÁzÀgÀ ¸Àƽ ªÀÄPÀ¼ Ì Áå' and this is the only

simple allegation regarding the offence under the

provisions of SC/ST (PA) Act. Further, the allegations

made in the further statement and charge sheet disclose

that appellant No.1/accused No.3 has assaulted CW.12 by

stick on his head while appellant No.2/accused No.4 has

assaulted CW.11 by iron rod on his head and legs while

appellant No.3/accused No.5 has assaulted CW.14 by club

on his head and chest. The wound certificates of these

witnesses namely, Shankar, Gopal and Huchappa clearly

disclose that they suffered injuries on right parietal area,

left frontal area and right frontal area respectively.

Further, it is also evident from the wound certificates that

the injuries are grievous in nature. The wound certificate

of Huchappa further disclose that he has suffered fracture

of temporal bone and also comminuted undisplaced

fracture involving roof of right orbit. It is evident that the

attack was also on the vital part of the body by the

appellant Nos.1 to 3, who are accused Nos.3 to 5 in the

charge sheet. The specific overt-acts are alleged against

these appellants and these appellant Nos.1 to 3 have used

clubs and iron rods to assault the injured victims and that

too assault is on the vital part of the body and thereby

caused grievous injuries, which would have been fatal.

Hence, there is prima facie material evidence as against

appellant Nos.1 to 3. As such, question of admitting them

on bail at this juncture does not arise at all. The ground

that the investigation is concluded and charge sheet has

been submitted cannot be considered, as there is likelihood

of they tampering the prosecution witnesses and jumping

bail.

9. As regard appellant Nos.4 to 6, who are

accused Nos.9 to 11 in the charge sheet, no specific overt-

act is alleged against them and only simple allegation is

that they assaulted the witnesses by hands and abused the

complainant and other witnesses with reference to their

caste. Looking to the allegations and the overt-act alleged

against these appellant Nos.4 to 6 and considering the fact

that the investigation is completed, I am of the considered

opinion that their continuation in the custody is not

warranted and they can be admitted on regular bail. The

other apprehensions raised by the learned High Court

Government Pleader can be meted out by imposing certain

conditions insofar as appellant Nos.4 to 6 are concerned.

Hence, the appeal is required to be allowed partly insofar

as appellant Nos.4 to 6 alone. Accordingly, I proceed to

pass the following:

ORDER

The appeal is partly allowed so far as it relates to

appellant Nos.4 to 6 alone by setting aside the impugned

order passed by the II Additional Sessions Judge,

Vijayapura in Cril.Misc.No.330/2021, dated 05.04.2021

and they are ordered to be enlarged on bail in Almel police

station Crime No.14/2021 of Vijayapura district, registered

for the offences punishable under Sections 143, 147, 148,

323, 324, 326, 341, 307, 504, 506 read with Section 149

of IPC and under Section 3(1)(r)(s) of SC/ST (PA) Act, on

each of them executing personal bond in a sum of

Rs.1,00,000/- with one sound surety for the like-sum to

the satisfaction of the said Court subject to following

conditions:

i) Appellant Nos.4 to 6 shall not tamper with the prosecution witnesses directly or indirectly;

ii) Appellant Nos.4 to 6 shall appear before the Trial Court on all the hearing dates without fail, unless they were specifically exempted by the Court;

iii) Appellant Nos.4 to 6 shall not indulge in any criminal activities.

However, the appeal filed by appellant Nos.1 to

3/accused Nos.3 to 5 stands rejected.

Sd/-

JUDGE

Srt