Karnataka High Court
Mahesh vs State Of Karnataka on 8 February, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.261/2022
BETWEEN:
1. MAHESH S/O KONEGOWDA
AGED ABOUT 28 YEARS
R/AT NO.134.9, 4TH MAIN
4TH CROSS, SANNAKKI BAYALU
KAMAKSHIPALYA, BENGALURU-560079.
NATIVE PLACE HOSAPALYA VILLAGE
AMRUTHUR HOBLI, KUNIGAL TALUK
TUMAKURU DISTRICT - 572111.
2. NAGARAJA S/O HANUMANTHAIAH
AGED ABOUT 35 YEARS
R/AT PUTTINAPALYA VILLAGE
AMRUTHUR HOBLI, KUNIGAL TALUK
TUMAKURU DISTRICT - 572 111. ... PETITIONERS
(BY SRI C.H.JADHAV, SENIOR COUNSEL FOR
SRI NAGARAJA N., ADVOCATE)
AND:
STATE OF KARNATAKA
BY BASAVESHWARANAGARA
POLICE STATION, BENGALURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001. ... RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN
CR.NO.186/2021 (S.C.No.1600/2021) OF BASAVESHWARA
NAGAR POLICE STATION, BENGALURU, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 323, 504 R/W. SECTION 34
OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C., seeking
regular bail of the petitioners/accused Nos.1 and 2 in Crime
No.186/2021 of Basaveshwara Nagar Police Station, Bengaluru
City, for the offences punishable under Sections 302, 323, 504
read with Section 34 of IPC.
2. Heard the learned counsel appearing for the
petitioners and the learned High Court Government Pleader
appearing for the respondent/ State.
3. The factual matrix of the case of the prosecution is
that the incident was taken place in the Bar & Restaurant where
the accused persons and also the victim have consumed the
alcohol. Since all of them have consumed the alcohol and
accused No.2 questioned the deceased why he is staring and
abused him, an incident was taken place and assaulted with a
helmet and the victim had sustained the injuries and succumbed
to the same. The police have investigated the matter and filed
the charge-sheet and recorded the statement of eyewitnesses
and also the other witnesses.
4. The learned counsel appearing for the petitioners
would submit that no allegation against accused No.2 and only
an allegation against accused No.1 is that he inflicted injury with
helmet and there was no any intention to inflict the injury and
the final opinion of the Doctor is also due to cardiac arrest. An
investigation has been completed and no need of custodial trial.
The learned counsel also would submit that the incident was
taken place at the instance of the deceased himself when he
stared at accused No.2. Hence, the alleged incident was taken
place and the petitioners may be enlarged on bail.
5. Per contra, the learned High Court Government
Pleader appearing for the State would submit that the case is
rests upon the direct evidence i.e., CWs.1 to 3, who have
witnessed the incident. Apart from that, CWs.1 and 2's 164
statements were also recorded. The learned High Court
Government Pleader also brought to the notice of this Court the
final opinion of the Doctor not only on cardiac arrest and cardiac
arrest was consequent upon the injuries and assault made to the
victim. The learned High Court Government Pleader would
submit that the Investigating Officer during the course of
investigation had collected the CCTV footage. Apart from that,
Test Identification Parade is also conducted and there are prima
facie materials against the petitioners herein.
6. Having heard the respective counsel and on perusal
of the material available on record, the case is rests upon the
direct evidence i.e., evidence of CWs.1 to 3 and also 164
statement of CWs.1 and 2, are also record. The very contention
of the learned counsel appearing for the petitioners is that
inflicting the injury with helmet and there was no intention to
take away the life, whether with an intention to take away the
life, an assault was made or not, is a matter of trial. The learned
counsel for the petitioners also would submit that the death is on
account of heart-attack. The opinion of the Doctor is clear that
on account of an assault made to him consequent upon there
was a cardiac arrest. When such being the factual aspects and
when the CCTV footage also collected and when CWs.1 to 3, are
the eyewitnesses to the incident and also the Investigating
Officer conducted the Test Identification Parade and the same is
also available on record. When such material available before the
Court and when the direct evidence and other supporting
evidence are before the Court, it is not a fit case to exercise the
discretion under Section 439 of Cr.P.C. to enlarge them on bail.
The investigation has already been completed and the charge-
sheet is filed, is not a ground in a heinous offence of committing
the murder to exercise the judicial discretion in favour of the
petitioners herein.
7. The other contention of the learned counsel for the
petitioners is that the only allegation against accused No.1 is
that he assaulted with helmet and no overt act allegation against
accused No.2 and the very case of the prosecution is that the
incident was taken place at the instance of accused No.2 and
accused No.2 only quarreled with the deceased, questioning him
that he is staring at him.
8. This Court would like to rely upon the judgment of
the Apex Court in the case of Kumer Singh v. State of
Rajasthan and another reported in 2021 Crl.L.J. 4244,
wherein, in paragraph No.13.1, the Apex Court held that, the
Court while exercising the discretion to see that the nature of
allegations, gravity of offences and role attributed to the
accused. Further, in paragraph No.14 held that, it is required to
be noted that all the accused are charged for the offences
punishable under Sections 302 and 307 read with Section 149 of
IPC. At this stage, the individual role of the accused is not
required to be considered when they are alleged to have been
the part of the unlawful assembly. Though in this case, they are
not part of the unlawful assembly, but, Section 34 of IPC is also
invoked for sharing of the common object. Hence, it is not a fit
case to exercise the discretion under Section 439 of Cr.P.C., in
favour of the petitioners and cannot evaluate the role of each of
the accused while considering the bail petition.
9. In view of the discussions made above, I pass the
following:
ORDER
The bail petition is rejected.
Sd/-
JUDGE
cp*
