Karnataka High Court

K Dhanush vs The State Of Karnataka on 23 August, 2023

Bench: Shivashankar Amarannavar

                                                      -1-
                                                               NC: 2023:KHC:30049
                                                             CRL.A No. 1112 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 23RD DAY OF AUGUST, 2023
                                                 BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL No. 1112 OF 2023
                      BETWEEN:
                            K. DHANUSH
                            S/O R. KUMAR,
                            AGED ABOUT 22 YEARS
                            R/O ANGANAVADI ANGALAKURKI
                            CHIKKABALLAPUR TALUK
                            CHIKKABALLAPURA DISTRICT.
                                                                  ...APPELLANT
                      (BY SRI BHARATH KUMAR V, ADVOCATE)
                      AND:
                      1.    THE STATE OF KARNATAKA
                            BY INSPECTOR OF POLICE,
                            CUBBON PARK P.S.,
                            BENGALURU-560 001.

                      2.    MR. BHEEMASEN GHATAGI,
                            POLICE SUB INSPECTOR,
                            CUBBON PARK P.S.,
                            LUBBEY MASJID STREET,
                            KASTURBA ROAD, BENGALURU-560 001.
Digitally signed by
LAKSHMINARAYANA       3.    BANASHANKARI P.S.,
MURTHY RAJASHRI
Location: HIGH
                            27TH CROSS, BANASHANKARI 2ND STAGE,
COURT OF                    BANASHANKARI, BENGALURU-560 070,
KARNATAKA
                            (REP. BY SPECIAL P.P)
                                                                    ...RESPONDENTS
                      (BY SRI. M. DIVAKAR MADDUR, HCGP FOR R1,
                          R2 - SERVED & UNREPRESENTED)
                            THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT
                      PRAYING TO SET ASIDE THE ORDER PASSED BY THE LXX
                      ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE,
                      BENGALURU CITY (CCH No.71) IN CRL.MISC.No.3006/2023 DATED
                      15.04.2023 AND ENLARGE HIM ON BAIL IN SPECIAL CASE
                      No.547/2023 (CR.No.138/2022), PENDING ON THE FILE OF LXX
                      ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE,
                                -2-
                                            NC: 2023:KHC:30049
                                          CRL.A No. 1112 of 2023




BENGALURU CITY (CCH NO.71) FOR OFFENCES U/S 302, 201, 343,
364, 307, 504, 506 R/W 149 OF IPC AND SEC. 3(2)(v), 3(1)(r) OF
SCHEDULED CASTE AND SCHEDULED TRIBES PREVENTION OF
ATROCITIES ACT 1989, PENDING ON THE FILE OF LXX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE AT BENGALURU
(CCH NO.71) BY ALLOWING THIS APPEAL.


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

                          JUDGMENT

This appeal is filed by appellant/Accused No.2 praying to

set aside the order dated 15.04.2023 passed in Crl.

Misc.No.3006/2023 passed by LXX Addl. City Civil & Sessions

Judge, Bengaluru City, (CCH-71), rejecting the bail petition

sought in respect of Cr.No.138/2022 Cubbon Park Police

Station for the offence punishable under Sections 302, 201,

343, 364, 307, 504, and 506 read with Section 149 of IPC and

Sections 3(2)(v) and 3(1)(e) of the Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (referred

to as 'SC & ST (POA) Act' for short).

2. Heard the learned counsel for the appellant and

learned HCGP for respondent No.1 - State. On service of

notice, respondent No.2 remained absent and unrepresented.

NC: 2023:KHC:30049 CRL.A No. 1112 of 2023

3. Gist of the prosecution case is that, on 22.12.2022 the

ACP of Cubbon Park Sub-Division received anonymous

complaint with pen-drive which was registered under

application No. Q1PS/PET/GNL-249/2002, who in turn

forwarded the said complaint to PI of Cubbon Park Police

Station to ascertain the truth of the complaint. Accordingly, the

PSI of Cubbon Park Police Station collected information and

lodged complaint stating that deceased Sharath Kumar was a

resident of Konanakunte village and had borrowed loan from

various persons and did not repay the same. Accordingly, the

persons who had given the loan to the deceased Sharath

Kumar entrusted the work of recovery of loan to accused No.3,

who in turn entrusted the recovery to accused Nos.1, 2, 5 and

8. Accused Nos.1, 2, 5 and 8 kidnapped the deceased Sharath

Kumar in the car belonging to accused No.10 with the

assistance of accused Nos.4 and 6 and he was wrongfully

confined in the farm house belonging to accused No.8 for 6 to 7

days and during the said period he was brutally assaulted and

caused to death. Thereafter, the accused persons shifted the

dead body of the deceased in the car belonging to accused

No.9 with the help of accused Nos. 4 and 7 and threw the same

NC: 2023:KHC:30049 CRL.A No. 1112 of 2023

in Charmadi Ghat with an intention to cause disappearance of

evidence.

4. Charge-sheet came to be filed against 12 accused

persons for the offence punishable under Sections 343, 364,

307, 504, and 506 read with Section 149 of IPC and Sections

3(2)(v) and 3(1)(e) of the SC & ST (PoA) Act. The appellant/

accused No. 2 came to be arrested on 26.12.2022 and he is in

judicial custody. The appellant - accused No.2 filed Crl.Misc.

No.3006/2023 seeking bail and the same came to be rejected

by the impugned order. The appellant/accused No.2 has

challenged the same in this appeal.

5. Learned counsel for the appellant/accused No.2 would

contend that no overt act is alleged against the appellant -

accused No.2 of assault on the deceased. What is alleged

against this appellant/accused No.2 is assisting accused No.1 in

kidnapping the deceased and after the murder shifting the dead

body and throwing it in Charmadi Ghat. He further submits that

the dead body of the deceased has not been terraced and the

case of the prosecution based on circumstantial evidence.

Accused Nos.3 and 8 have already been granted bail by this

Court in Crl.A.No.854/2023 and Crl.A.No.338/2023 and this

NC: 2023:KHC:30049 CRL.A No. 1112 of 2023

appellant/accused No.2 is similarly placed that of those accused

persons, who have been granted bail. He further submits that

nothing has been recovered at the instance of this appellant/

accused No.2. As charge-sheet has been filed, appellant/

accused No.2 is not required for custodial interrogation. He

further submits that this appellant/accused No.2 is a handicap

and he cannot drive vehicle. Without considering all these

aspects, impugned order has been passed. With this, he prayed

for allowing the appeal and grant bail to appellant/accused

No.2.

6. Per contra, learned HCGP appearing for respondent

No. 1 - State would contend that this appellant/accused No.2

assisted accused No.1 in kidnapping the deceased and

thereafter assisted him in shifting dead body and did not reveal

commission of the murder to anybody. There is recovery of

empty carry bag and Swift car at the instance of this

appellant/accused No.2 under mahazars. The offence alleged

against accused No.2 is heinous in nature punishable with

either death or imprisonment for life. Considering all these

aspects, learned Special Judge has rightly rejected the bail

petition and there are no grounds for setting aside the

NC: 2023:KHC:30049 CRL.A No. 1112 of 2023

impugned order and granting bail to the appellant/accused

No.2. With this, he prays for dismissal of the appeal.

7. Even though the deceased was missing, neither his

father nor any of his relatives filed any missing complaint. Case

came to be registered on basis of anonymous letter. There is no

confirmation of death of the deceased Sharath Kumar, since his

dead body is not traced. The only accusation against this

appellant/accused No.2 is that he assisted accused No.1 in

kidnapping the deceased and after murder by accused No.1 he

assisted him in shifting the dead body and throwing it in

Charmadi Ghat. There is no overt act alleged against this

appellant/accused No.2 of assaulting or killing the deceased.

The case of the prosecution is based on circumstantial

evidence. Therefore, guilt of the accused has to be proved by

establishing each of the circumstances. As charge sheet is filed,

the appellant/accused No.2 is not required for custodial

interrogation. Without considering all these aspects, the Special

Judge has passed the impugned order, which requires

interference of this Court. In the result, the following:

NC: 2023:KHC:30049 CRL.A No. 1112 of 2023

ORDER

The Appeal is allowed.

The impugned order dated 15.04.2023 passed in Crl.Misc.

No.3006/2023 by LXX Additional City Civil and Sessions Judge

and Special Judge, Bengaluru,(CCH-71), is set aside. The bail

petition of the appellant/accused No.2 in Crl.Misc.No.

3006/2023 stands allowed.

The appellant/accused No.2 is ordered to be released on

bail in Crime No.138/2022 of Cubbon Park Police Station

subject to the following conditions:

i) Appellant/accused No.2 shall execute a personal bond for a sum of `1,00,000/- (Rupees One Lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.