Lohitha @ Loki vs State By Srirampuram Police
2022 Latest Caselaw 9199 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JUNE, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.4777/2022

BETWEEN:

LOHITHA @ LOKI,
S/O GANESH RAO,
AGED ABOUT 28 YEARS,
R/O NO.69, 5TH MAIN,
6TH CROSS, SRIRAMPURA,
AMBEDKAR NAGARA,
BENGALURU-560021.
PERMANENT ADDRESS: MUTHUR,
DODDABALLAPURA,
BENGALURU RURAL DIST-561203.                    ...PETITIONER

            (BY SRI SYED AKBAR PASHA, ADVOCATE)

AND:

STATE BY SRIRAMPURAM POLICE,
REP BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.                             ... RESPONDENT

                (BY SRI H.S. SHANKAR, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.100/2021 (C.C.NO.33673/2021) OF SRIRAMPURA P.S.,
BANGALORE FOR THE OFFENCE PUNISHALBE UNDER SECTIONS
120B, 302, 201 READ WITH 34 OF IPC AND SECTION 36 OF THE
KARNATAKA EXCISE ACT ON THE FILE OF 39TH ACMM, BANGALORE.

      THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

This petition is filed under Section 439 of Cr.P.C. seeking

regular bail of the petitioner in Crime No.100/2021

(C.C.NO.33673/2021) of Srirampura Police Station, Bangalore

for the offence punishable under Sections 120B, 302, 201 read

with 34 of IPC and Section 36 of the Karnataka Excise Act.

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

3. The factual matrix of the case of the prosecution is

that there was a quarrel between the deceased and this

petitioner one week prior to this incident. Similarly, there was a

quarrel between accused No.2 and the deceased also and both of

them discussed with regard to the said incident and accused

Nos.1 and 2 conspired with each other to teach a lesson to the

deceased in the shop belonging to C.W.7 and also purchased a

dagger. That on 04.09.2021 at around 7.00 p.m., when the

victim went to consume alcohol in Srirampura jurisdiction

belonging to accused No.3, accused No.2 went and quarreled

with him and accused No.1 was also along with him. With an

intention to take away the life, accused No.1 inflicted injury with

the dagger near the private part of the victim, as a result, he

has sustained injury to his left thigh and blood was oozing. The

said fact was informed to accused No.3 by accused No.6 and

accused No.3 on the instructions of accused Nos.4 and 5,

dragged the injured and made him to lie on the footpath and due

to the said injuries, he succumbed to the injuries and hence case

has been registered, matter has been investigated and charge-

sheet is also filed.

4. The learned counsel for the petitioner submits that

this petitioner is accused No.1 and though an allegation is made

that he inflicted injury, only one injury is inflicted on the left side

of the thigh and the same does not result in death, but the fact

is that the victim was made to lie on the footpath and timely

treatment was not provided to him, which led to his death. The

learned counsel submits that there was no any intention to take

away the life of the victim and at the most, it attracts Section

304 of IPC and not 302 of IPC. The learned counsel submits

that accused Nos.2 to 6 are already enlarged on bail. Though,

C.W.2 to C.W.5 are the eye-witnesses according to the

prosecution, their statements were recorded on the seventh day

and thirteenth day of the incident and hence the petitioner may

be enlarged on bail. The learned counsel submits that the

petitioner is in custody from 05.09.2021 and investigation has

been completed and charge-sheet is also filed and no need of

further custodial trial.

5. Per contra, the learned High Court Government

Pleader appearing for the respondent-State submits that the

allegation against other accused persons is that on the

instructions of accused No.3, accused Nos. 4 and 5, kept the

injured outside the wine shop i.e., on the footpath. The specific

overt-act allegation is made against this petitioner that he

inflicted injury with the dagger, as a result, he had sustained

injury and blood was oozing and recovery is made at the

instance of the petitioner i.e., dagger. There are eye-witnesses

to the incident i.e., C.W.2 to C.W.5. When there are eye-

witnesses to the incident and the recovery is also made at the

instance of this petitioner, there is a prima facie case against the

petitioner.

6. Having heard the learned counsel for the petitioner

and the learned High Court Government Pleader appearing for

the respondent-State and also on perusal of the material

available on record, granting of bail in favour of other accused

cannot be a ground to enlarge this petitioner on bail and the

Court has to take note of the gravity of the offence as well as

whether parity applies or not. The Apex Court in the judgment

in the case of RAMESH BHAVAN RATHOD v. VISHANBHAI

HIRABHAI MAKWANA (KOLI) AND ANOTHER reported in

(2021) 6 SCC 230, has considered the bail on ground of parity

with co-accused and the manner in which to be determined.

While applying the principle of parity, the Court cannot exercise

its powers in a capricious manner and has to consider totality of

circumstances before granting bail. Parity while granting bail

must focus upon role of the accused, and not only on weapon

carried by accused. Merely observing that another accused who

was granted bail was armed with similar weapon is not sufficient

to determine whether bail can be granted on the basis of parity.

In deciding aspect of parity, role attached to the accused, their

position in relation to the incident and to victims is of utmost

importance. In the event the parity is claimed in such case

thereafter, it is for that Court before whom parity is claimed to

determine whether case for grant of bail on grounds of parity is

made out.

7. In the case on hand, the allegation against other

accused are not similar to the role of this petitioner. The specific

overt-act allegation is made against this petitioner that he

inflicted injury with dagger. When such being the case, the very

contention of the learned counsel for the petitioner that at the

most it attracts Section 304 of IPC cannot be accepted at this

juncture and the matter requires to be considered whether the

offence attracts Section 304 or 302 of IPC only at the time of

considering the matter on merits. The medical evidence also

supports the case of the prosecution that on account of the

injury sustained by him has resulted in his death. When such

being the material available on record and when specific overt-

act allegation is made against the petitioner, the Court has to

take note of the role of the accused as held by the Apex Court

referred supra. Apart from that, there is recovery of the dagger,

which was used by this petitioner for inflicting the injury. Apart

from that, C.W.2 to C.W.5 have witnessed the incident and mere

delay in recording the statements of C.W.2 to C.W.5 cannot be a

ground to enlarge the petitioner on bail. The granting of bail in

favour of other accused cannot be a ground and parity is not

sustainable in respect of this petitioner.

8. In view of the discussions made above, I pass the

following:

ORDER

The petition is rejected.

Sd/-

JUDGE

MD