Karnataka High Court
Subbamma vs State Of Karnataka on 23 June, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.4452/2022
BETWEEN:
SUBBAMMA
W/O GOVINDANAIKA
AGED ABOUT 41 YEARS
R/AT THIPPAPURA THANDA
I.D. HALLI HOBLI,
MADHUGIRI TALUK
TUMAKURU DISTRICT-572124. ... PETITIONER
(BY SRI M.SHASHIDHARA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY MEDIGESHI P.S.,
REPRESENTED BY SPP
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.120/2021 (S.C.NO.5007/2022) OF MEDIGESHI P.S.,
TUMAKURU DISTRICT FOR THE OFFENCES P/U/Ss.302, 323, 504
R/W 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
This petition is filed under Section 439 of Cr.P.C., seeking
regular bail of the petitioner/accused No.2 in S.C.No.5007/2022
(Crime No.120/2021 of Medigeshi Police Station, Tumakuru
District, for the offences punishable under Sections 302, 323,
504 read with 34 of IPC, pending on the file of IV Additional
District and Sessions Court, Madhugiri.
2. Heard the learned counsel appearing 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 frequent quarrel between the deceased, this
petitioner and her husband. When accused No.1 was scolding in
the night of 17.10.2021, again a quarrel was taken place and the
same was continued on 18.10.2021 also. Hence, both accused
Nos.1 and 2 shared the common intention and assaulted him
with their hands and kicked him and thereafter accused No.2
i.e., this petitioner instigated accused No.1 not to leave him and
she held both the legs of the victim and instructed her husband
to inflict the injury to his head and immediately accused No.1
took out the club and inflicted injury on his head and thereafter
the injured was taken to the hospital and he succumbed to the
injuries on the same day at 5 p.m. Hence, a case has been
registered, investigated the matter and filed the charge sheet
against accused Nos.1, 2 and 4.
4. The learned counsel appearing for the petitioner
would submit that this petitioner is a lady and she has not
shared any common intention and a frequent quarrel was at the
instance of the deceased. The only allegation against accused
No.1 is that he inflicted injury with the club. But the allegation
against this petitioner is that she assaulted with her hands and
kicked the victim and other than this, an allegation is that she
had been instigated her husband. The learned counsel would
submit that this petitioner is having the children and she has
been in custody from the last 10 months. The investigation has
been completed and the charge-sheet is also filed and no need
of further custodial trial and a specific overt act allegation is that
the husband inflicted injury with club. Hence, the petitioner may
be enlarged on bail.
5. Per contra, the learned High Court Government
Pleader appearing for the State would submit that the specific
overt act allegation made against this petitioner is that both of
them at the first instance assaulted with their hands and also
kicked and thereafter at the instance of this petitioner only
accused No.1 took out the club and inflicted injury that too on
the vital part i.e., on the head. The cause of action is also on
account of the injury to the head. The learned High Court
Government Pleader for the respondent-State also would submit
that there are 15 injuries other than the head injury and it
clearly discloses the overt act of both accused Nos.1 and 2.
Hence, there is a prima facie case against the petitioner and she
is not entitled for bail.
6. Having heard the respective counsel and on perusal
of the material available on record, no doubt, the victim as well
as this petitioner are the neighbours and the material collected
by the Investigating Officer discloses that there were frequent
quarrel between them. The specific overt act allegation against
this petitioner is that she has assaulted with her hands and also
kicked him along with her husband - accused No.1. Apart from
that, the specific allegation is that she only instigated accused
No.1 to inflict injury with the club and accordingly accused No.1
inflicted injury with the club. Having taken note of the cause of
death is on account of the head injury, apart from that, there
were 15 injuries, which corresponds with the allegation made
against this petitioner that she assaulted with her hands as well
as kicked the victim and also there are eye witnesses viz., CWs.2
to 4, who have witnessed the incident. When there are direct
evidence against the petitioner herein and also learned High
Court Government Pleader for the respondent-State brought to
the notice of this Court that the saree belongs to this petitioner
was also seized and the same was sent to FSL. The FSL report
dated 23.03.2022 confirms that the saree of this petitioner is
also stained with blood. When such being the material on record,
this petitioner is also a part of committing an offence.
7. At this juncture, 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.14 the Apex Court categorically
held that when the common intention or the common object has
been shared and while considering the bail application, 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. When such being the material available on record,
when this petitioner was also present at the time of the incident
and overt act allegation also made against her, as well as her
saree is also stained with the blood and the same has been
confirmed. When there are eye witnesses to the incident, it is
not a fit case for exercising the powers under Section 439 of
Cr.P.C., in favour of the petitioner herein.
8. The other contention is that the petitioner is in
custody from the last ten months as well as the petitioner is
having children, are not the grounds when an heinous offence of
alleged murder has been committed.
9. In view of the discussions made above, I pass the
following:
ORDER
The bail petition is rejected.
Sd/-
JUDGE
cp*
