Sanjith Singh vs State By Inspector Of Police
2022 Latest Caselaw 4784 Kant

                                      1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 15TH DAY OF MARCH, 2022

                                  BEFORE

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

                 CRIMINAL PETITION No.10247/2021

BETWEEN:

1. SANJITH SINGH
   S/O LATE KALYAN SINGH
   AGED ABOUT 22 YEARS
   STUDENT
   R/O BARNA VILLAGE
   BILLARA TALUK
   RAJASTHAN

   NOW R/O RAMAGIRI VILLAGE
   HOLALKERE TALUK-577526
   CHITRADURGA DISTRICT.

(vide court order dated 03.02.2022, the petition
    is not pressed on behalf of this petitioner)


2. PRUTHVIRAJ SINGH
   S/O PEESU SINGH
   AGED ABOUT 31 YEARS
   JEWELRY BUSINESS
   NOSAR BADALIA VILLAGE
   DIDWANA TALUK
   RAJASTHAN

    NOW R/AT ASHOKANAGARA
    GANDHIBAZAAR
    SHIVAMOGGA-577201.
                                                   ... PETITIONERS

(BY SRI UMESH MOOLIMANI, ADVOCATE)
                                 2



AND:
STATE BY INSPECTOR OF POLICE
HOLALKERE POLICE STATION
CHITRADURGA DISTRICT
REP. BY SPP, HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
BENGALURU-560001
                                                  ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)



       THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.261/2021 OF HOLALKERE POLICE STATION FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND
SECTION 27 OF I.A ACT AND ETC.


       THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCINGTHIS DAY, THE COURT MADE
THE FOLLOWING:



                            ORDER

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

regular bail of the petitioner in Crime No.261/2021 of Holalkere

police station for the offence punishable under Section 302, 201

of IPC and section 27 of Indian Arms Act.

2. The petition against the petitioner No.1 is not

pressed vide court order dated 03.02.2022.

3. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

4. The factual matrix of the case is that petitioner No.1

along with petitioner No.2 i.e., accused Nos.1 and 2 went near

the shop of the victim and shot him when he came out from the

shop and thereafter, both of them ran away from the spot and

this incident was witnessed by CW15. Thereafter, this petitioner

along with accused No.1 came in a two wheeler and parked the

same in front of the shop of CW17 who is the friend of this

petitioner and kept the pistol and bullet in the house of CW18.

Based on the complaint, the case was registered and after

completion of the investigation, charge-sheet has been filed for

the aforesaid offences.

5. The learned counsel appearing for the petitioner

would submit that though the prosecution has mainly relied upon

the evidence of CW15 who is an eye-witness to the alleged

incident, he was inside the shop at the time of the incident.

Hence, the case of the prosecution cannot be believed that

CW15 is the eye-witness to the alleged incident. The counsel

also would submit that the prosecution has mainly relied upon

the Test Identification (TI) parade and the same is also doubtful

since in the statement of CW15, once he says that he has not

seen the assailants properly and again he says that he can

identify the assailants hence, there are contradictions in the

statement of CW15. The counsel would submit that TI parade

report submitted by the Tahsildar would be considered only

during the course of trial and based on TI parade report, this

petitioner cannot be continued in custody and there is no need of

custodial trial since the investigation is completed and charge-

sheet has been filed. Hence, prayed to enlarge him on bail.

6. Per contra, the learned High Court Government

Pleader for the State would submit that gun, bullet and cloths of

accused persons were seized from the house of CW18 wherein

this petitioner and accused No.1 have concealed the same. The

bike belongs to the uncle of accused No.1 was also seized which

was used to commit the alleged offence and both of them have

shared the common intention to take away the life of the victim

since there was a civil dispute between accused No.1 since the

victim did not let out the premises to accused No.1 and both

accused persons went together with the common intention to

takeaway the life of the victim and hence, though accused No.1

shot the victim, this petitioner had shared the common intention

with him. The counsel also would submit that CW15 who is the

worker in the shop of the victim, he witnessed the alleged

incident and also identified this petitioner and accused No.1 who

ran away from the spot and he categorically identified them

when TI parade was conducted by the Tahsildar and Thasildar

report also discloses that CW15 identified accused persons.

When these materials are available before the Court, it is not a

fit case to exercise the powers under Section 439 of Cr.P.C in

favour of this petitioner.

7. Having heard the respective counsel appearing for

the parties and also on perusal of the material on record it is not

in dispute that on account of shot, the victim had sustained

injuries and he succumbed to the said injuries. The main

contention of the counsel for the petitioner is that CW15 who

allegedly the eye-witness, his statement is contrary since in one

breath he says that he could not see the assailants properly and

another breath he says that he can identify the assailants. But

the fact is TI parade is conducted by the Tahsildar is not in

dispute and report is also submitted wherein CW15 had

identified the assailants. The discrepancy in the statement

cannot be a ground to exercise the discretion in favour of the

petitioner.

8. It is also important to note that the vehicle which

was used to come to the particular place is belonged to the

uncle-CW16 of accused No.1 and CW16 also made the statement

that both of them took his vehicle and also the statement of

CW17 who is the friend of this petitioner categorically submits

that before committing the murder, this petitioner along with

accused No.1 came in a two wheeler and parked the said vehicle

in front of his shop. The prosecution has mainly relies upon the

evidence of CW15 who is the worker in the shop of the

deceased, he identified the petitioner who had shared the

common intention along with accused No.1 and no doubt, it is

the allegation of the prosecution that accused No.1 shot the

deceased but the fact that both of them went in a motorcycle

with pistol and shot the victim. The Apex Court also in the

judgment reported in (2021) 7 SCJ 227 in paragraph 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 a part of the unlawful assembly. It is further

observed that merely because they were armed with lathis

cannot be a ground to release them on bail. In the facts and

circumstances of the case, more particularly when accused were

charged for the offences punishable under Section 302 and 201

read with Section 34 of IPC as well as Section 27 of the Indian

Arms Act, the case of the prosecution that both of them went

together and shared the common intention in taking away the

life of the victim and shot the victim when he came from his

shop. Hence, at this stage, the Court cannot segregate the role

of each of the accused persons and the judgment of the Apex

Court also aptly applicable to the case on hand regarding sharing

of common intention. Hence, it is not a fit case to exercise the

discretion in favour of the petitioner under Section 439 of Cr.P.C.

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

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SN