Nagaraja vs The State Of Karnataka
2022 Latest Caselaw 1444 Kant

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                                         Crl.A.No.1761/2021



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 01ST DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE Mrs. JUSTICE K S MUDAGAL

            CRIMINAL APPEAL NO.1761/2021


BETWEEN:

NAGARAJA
S/O NINGAPPA
AGED ABOUT 26 YEARS
OCC:COOLIE
R/O JANKAL GRAMA
HOSADURGA TALUK
CHITRADURGA DISTRICT - 577 527.
                                            ...APPELLANT
(BY SRI R.B.DESHPANDE, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      HOSADURGA POLICE STATION
      HOSADURGA CIRCLE,
      CHITRADURGA DISTRICT - 577 527.

      (REPRESENTED BY STATE PUBLIC PROSECUTOR,
      HIGH COURT BUILDINGS, BENGALURU-560 001)

2.    SMT.MANJULA
      W/O MANJUNATHA
      AGED ABOUT 26 YEARS
      OCC:LABOURER,
      R/O KODIHALLI VILLAGE
      CHALLAKERE TALUK
      CHITRADURGA DISTRICT - 577 522.
                                        ...RESPONDENTS
(BY SRI: SHANKAR H.S.,HCGP, FOR R-1
R-2 SERVED)
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                                              Crl.A.No.1761/2021



     THIS APPEAL IS FILED UNDER SECTION 14(A)(2) OF
SC/ST (POA) ACT PRAYING TO SET ASIDE THE ORDER DATED
29.10.2021 PASSED IN SPL.C(SC/ST AND POCSO) NO.26/2021
PASSED BY THE SPECIAL II ADDITIONAL DISTRICT &
SESSIONS JUDGE, CHITRADURGA, CONSEQUENTLY TO
ENLARGE THE APPELLANT/ACCUSED NO.1 ON BAIL IN
CR.NO.361/2021     OF   HOSADURGA     POLICE   STATION,
CHITRADURGA      DISTRICT(CHARGE   SHEETED    FOR    THE
OFFENCE PUNISHABLE UNDER SECTIONS 302, 376(3),
376(2)(n), 201 OF IPC AND SECTION 3(2)(5) OF SC/ST (POA)
AMENDMENT ORDINANCE 2014 ACT AND SECTION 4,6 OF
POCSO ACT) NOW PENDING ON THE FILE OF SPECIAL II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA
IN SPL.C.(SC/ST AND POCSO)NO.26/2021.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE
FOLLOWING:

                         JUDGMENT

Aggrieved by the rejection of his application for bail,

accused No.1 in Spl.C.(SC/ST&POCSO) No.26/2021 on the file

of II Additional District and Sessions Judge, Chitradurga has

preferred the above appeal.

2. The appellant, accused Nos.2 and 3 are facing trial

in the said case for the offences punishable under Sections

302, 201, 376(3), 376(2)(n) and 376(3) of IPC, Section

3(2)(V) of Prevention of Scheduled Caste and Schedule Tribe

(Prevention of Atrocities) Act, 1989 and Sections 4 & 6 of the

Protection of Children from Sexual Offences Act, 2012 on the

Crl.A.No.1761/2021

basis of the charge sheet filed by Hosadurga Police in Crime

No. 361/2021 after investigation.

3. The case of the prosecution in brief is as follows:

Victim 'X' was aged 16 years as on 29.06.2021 (for the

purpose of confidentiality victim is referred to as 'X'

henceforth). C.W.2 is father and C.W.1 is elder sister of 'X'.

C.W.3 and C.W.4 are mother and grandmother of 'X'. 'X' was

first married to one Umesh and out of the said wedlock, the

couple had a daughter by name Kum.Mahalakshmi, aged about

2 years. Said marriage was broken. Therefore, 'X' was living

with C.Ws.1 to 4 along with her daughter. Accused No.1

developed an affair and sexual relationship with 'X' since 3-4

years prior to the incident. He had promised to marry her. Of

late, the appellant started to harass 'X' suspecting her fidelity.

In that background, he planned to commit her murder with the

help of accused Nos.2 and 3. In execution of such conspiracy,

on 29.01.2021 at 11.00 p.m., the appellant picked up 'X' on his

motorcycle luring that they had to go to fix up a rented house.

He took her to the land of C.W.5 situated within Janakal village

limits. Accused Nos.2 and 3 were already present there.

Accused No.3 kept a watch to alert accused Nos.1 and 2 if

Crl.A.No.1761/2021

anybody comes. Appellant picked up a quarrel with 'X' stating

that she has illicit relationship with others. Accused No.2

gripped both the hands of the victim and the appellant hit her,

throttled her and committed her murder. After killing her, to

screen the evidence of the offence, accused Nos.1 and 2

dropped the dead body into the Well situated in the said land.

4. After tracing the body, C.W.2 filed a report

suspecting the involvement of the appellant. The appellant

stated to have made an extra judicial confession before C.W.4.

Thereafter, C.W.1 filed a complaint against the appellant. On

investigation, charge sheet as aforesaid is filed.

5. Learned counsel for the appellant submits that

accused Nos.2 and 3 have been already granted bail and there

is no direct evidence against the appellant, therefore, he is

entitled for bail.

6. Learned HCGP submits that there is sufficient

material to show appellant's involvement in the case and

therefore, trial Court has rightly rejected the application.

7. Allegation of hitting and throttling the victim are

against the appellant alone. Though it is alleged that accused

Crl.A.No.1761/2021

No.2 gripped the hands of the victim, he was implicated in the

case only on the basis of voluntary statement of the appellant.

There are no allegations of assault against accused No.3.

Therefore, parity ground is not applicable to the appellant.

8. It is no doubt true that case is based on the

circumstantial evidence. However, there are witnesses to

speak that appellant and victim were last seen together and

thereafter victim was found dead. Post Mortem report says

that her death is homicidal one i.e., due to throttling. As per

school certificate, victim was aged 16 years at the time of her

death. There is witness to speak about extra judicial

confession. There are witnesses to speak that appellant had

relationship with the victim since 3-4 years and physically

abused her. The victim belonged to the Scheduled Tribe.

9. Having regard to the facts and circumstances and

gravity of the offence, at this stage, it is not a fit case to grant

bail. Therefore, the appeal is dismissed.

Sd/-

JUDGE

*sp