Sri Hanumantha R vs State Of Karnataka
2022 Latest Caselaw 11521 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 24 T H DAY OF AUGUST, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

        CRIMINAL APPEAL NO.800 OF 2022

BETWEEN:

1.   Sri Hanumantha R
     S/o Late Ramanna
     Aged about 33 years
     Davanag ere City
     No.169/5A 2 n d Cross
     Basavaraj pete
     Davanag ere-577002

2.   Basavaraj @ Basya
     S/o Late Ramanna
     Aged about 31 years
     Davanag ere City
     No.169/5A, 2 n d Cross
     Basavarajp ete
     Davanag ere-577002

3.   Kumara
     S/o Parameshwarapp a
     Aged about 27 years
     Davanag ere City
     3 r d Cross Aralimara Circle
     Betur Road
     Davanag ere-577002

4.   Nayaz Ahamed
     S/o Mehaboob Sab
     Aged about 33 years
     Davanag ere City
     I main 9 t h Cross
                             :: 2 ::


     Azad Nagara
     Davanag ere-577002
                                                     ...Appellants

(By Sri T. Hareesh Bhand ary, Advocate)

AND:

1.   State of Karnataka
     Basavanag ara Police Station
     Davanag ere
     Represented by State Public Prosecutor
     Hig h Court Build ings
     Bang alore-560001

2.   Sri Malleshappa B.H
     S/o Hanumanthappa
     Aged about 60 years
     Door No.59/1, 3 r d Cross
     Ex.Member of Mahanag ara Palike
     R/at Devaraja Urs Extension,
     'C' Block, Davanag ere
                                                    ...Respondents

(By Sri K. Nag eshwarapp a, HCGP for R1;
    Vid e Order dated 22.08.2022 notice
    in resp ect of R2 is held sufficient)

     This   Criminal     Appeal   is   filed    under     Section
14(A)(2)    of   SC/ST   (POA),   praying      to    enlarg e   the
app ellant on bail in S.C.No.169/2021 on the file of the
II Additional District and Sessions Judge and Sp ecial
Judge at Davang ere and etc.,

     This Criminal Appeal coming on for admission
this d ay, the Court d elivered the following:
                                :: 3 ::


                         JUDGMENT

Heard Sri Hareesh Bhandary T, learned

counsel for the appellants and the learned High

Court Government Pleader for respondent No.1-

State. Respondent No.2 has been served with

notice, but he has not entered appearance.

2. This is an appeal filed under Section

14(A)(2) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act ['SC/ST Act'

for short], challenging the order dated 25.01.2022

passed by the II Additional District and Sessions

Judge, and Special Judge, Davanagere, in

S.C.No.169/2021 dismissing the appellants'

application filed under Section 439 of Cr.P.C.

3. FIR in Crime No.60/2021 was registered

on 11.08.2021 for the offence punishable under

Section 302 read with Section 34 of IPC.

Subsequently an offence punishable under Section :: 4 ::

3(2)(v) of SC/ST Act was included as the deceased

was found to be belonging to scheduled caste.

4. The investigation has been completed.

In the charge sheet, it is stated that there was

previous enemity between the deceased, namely,

Parameshwarappa N and accused No.1. During

lockdown period, the deceased closed the gate

abutting his house thinking that people would use

the same for accessing a temple and in this

connection a quarrel had taken place between

Parameshwarappa, and accused 1 and 2. It is also

stated that on 08.08.2021, CW29 quarreled with

the wives of accused 1 and 2. The latter

suspected that Parameshwarappa might have

instigated CW29 to quarrel with their wives. For

all these reasons they decided to kill

Parameshwarappa. Pursuant to this intention, on

11.08.2021, the accused kept watch on the

movements of Parameshwarappa and during night :: 5 ::

hours when he came out of his house, they all

followed him. All the accused had come to that

place in an auto rickshaw. Accused No.2 came out

of auto rickshaw and assaulted Parameshwarappa

with a machete on his forehead, when he fell

down, accused No.3 brought a spear and pierced

the same on the back of Parameshwarappa for 5 or

6 times, thereafter accused No.1 brought a big

cement concrete stone and dropped it on the head

of Parameshwarappa. Accused No.4 was sitting

inside the auto rickshaw and after the incident was

over, he asked all the three accused to get into

auto rickshaw as they should soon leave that

place.

5. It is the argument of Sri Hareesh

Bhandary T, learned counsel for the appellants

that, in the charge sheet it is stated that accused

No.1 came to the house of deceased at 4.00pm on

11.08.2021 and enquired with the wife of the :: 6 ::

deceased about him. But in the CCTV footages,

the time of first accused coming to the house of

deceased is shown as 6.25pm. In this view, there

is inconsistency in the prosecution case. Moreover

there is no specific overt-act of inflicting injuries

against accused No.4 in the charge sheet. It is

just shown that he was sitting inside the auto

rickshaw. Therefore at this stage it can be stated

that there are no prima-facie materials against

accused No.4. In this view he tries to make out a

case for grant bail for all the accused.

6. Learned High Court Government Pleader

refers to the charge sheet and submits that there

are three eye witnesses. Their statements are so

clear that they saw the incident. Postmortem

report indicates presence of 11 injuries. The

investigating officer was able to recover the

weapons used for committing the offence, blood

stained clothes and other articles. In regard to :: 7 ::

accused No.4, it is his submission that though he

was sitting inside the auto rickshaw, he was

guarding the other accused and therefore his

overt-act is also forthcoming. Therefore no

appellant is entitled to be released on bail.

7. Having heard both sides, it may be

stated that the investigating officer has wrongly

invoked Section 3(2)(v) of SC/ST Act, just because

the deceased happened to be a member of

scheduled caste. But the prosecution papers do

not indicate any incident having taken place in the

background of caste rivalry. What the prosecution

has projected is existence of some previous

enemity not connected with the case.

8. If the entire charge sheet is perused,

there are three eye witnesses to the incident,

namely, Parvathamma, Rakesh and Lakshman.

From their statements, clear overt-acts of accused

1 to 3 is forthcoming. The investigating officer :: 8 ::

has recovered blood stained clothes of accused 1

to 3 and also weapons at their instance. Therefore

so far as accused 1 to 3 are concerned, it can be

very clearly said that there are prima-facie

materials indicating their involvement in

commission of the crime.

9. So far as accused No.4 is concerned,

charge sheet would disclose his presence at the

spot and alarming accused 1 to 3 to come and sit

in the auto rickshaw soon after the incident was

over. Though it cannot be said that he was not

involved in the commission of offence, having

regard to the fact that he did not inflict any

injuries to the deceased, lenient view may be

taken to grant bail to accused No.4. Anyway,

entire investigation is over and charge sheet has

been filed. In this view, accused No.1 to 3 are

not entitled to claim bail and only accused No.4

can be released on bail. Therefore the following:

:: 9 ::

ORDER Appeal is partly allowed.

The order passed by the II Additional District and Sessions Judge and Special Judge, Davanagere dated 25.01.2022 in S.C.No.169/2021 on the

under Section 439 Cr.P.C., is set aside.

The said application in so far as it relates to appellant No.4/accused No.4 is allowed.

The appeal stands dismissed insofar as appellants No.1 to 3/accused No.1 to 3 is concerned.

The appellant No.4 is admitted to bail on obtaining from him a bond for Rs.2,00,000/- (Two Lakhs only) and providing two sureties for the likesum to the satisfaction of the trial court. The appellant No.4 is also subjected to following conditions:-

i. He shall not tamper with the evidence and threaten the witnesses.

:: 10 ::

ii. He shall regularly appear before the trial court till conclusion of the trial.

    iii. Till     completion      of      the        trial,     the
          appellant        No.4        shall        mark        his
          attendance       before      the     jurisdictional
          police    Station       once         in     a    week,

preferably on every Monday between 9 am and 12 noon.

iv. He shall not get involved in any other criminal case/s in future. In case of any FIR is registered against him in future, the prosecution will be at liberty to move for cancellation of bail.

Sd/-

JUDGE

Kmv/-