Karnataka High Court

Sri Vinodha R vs State Of Karnataka on 24 August, 2023

Bench: Shivashankar Amarannavar

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                                                            NC: 2023:KHC:30433
                                                        CRL.A No. 1191 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 24TH DAY OF AUGUST, 2023

                                              BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 1191 OF 2023
                      BETWEEN:

                           SRI VINODHA R
                           S/O RAMACHANDRAIAH
                           AGED ABOUT 22 YEARS
                           R/O AVALAIAHAINAPALYA
                           SASALU HOBLI
                           DODDABALLAPURA TALUK
                           BANGALORE RURAL DISTRICT - 561 204.
                                                                  ...APPELLANT
                      (BY SRI SRINIVAS N, ADVOCATE)

                      AND:

                      1.   STATE OF KARNATAKA
Digitally signed by        KORATAGERE POLICE STATION
LAKSHMINARAYANA            TUMAKURU DISTRICT - 572 129
MURTHY RAJASHRI
Location: HIGH             REP. BY SPP, HIGH COURT OF KARNATAKA
COURT OF
KARNATAKA                  BANGALORE - 560 001.

                      2.   HANUMANTHARAYA
                           S/O LAKSHMAIAH
                           AGED ABOUT 43 YEARS
                           RESIDENT OF DURGANAHALLI VILLAGE
                           DODDABALLAPURA TALUK
                           BANGALORE RURAL DISTRICT - 561 204.
                                                                 ...RESPONDENTS
                      (BY SRI M DIWAKAR MADDUR, HCGP FOR R1
                       R2 SERVED AND UNREPRESENTED)

                           THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT
                      PRAYING TO SET ASIDE THE ORDER DATED 04.05.2023 PASSED
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                                              NC: 2023:KHC:30433
                                       CRL.A No. 1191 of 2023




BY THE HON'BLE COURT OF THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, TUMAKURU IN CRL.MISC.No.408/2023 NOW
PENDING IN SPECIAL CASE No.262/2023 (CR.No.297/2022) FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 201, 109
R/W 34 OF IPC AND SECTION 3(2)(VA) OF SC/ST (POA) ACT
PENDING FOR TRIAL.

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

                            JUDGMENT

1. This appeal is by accused No.2 praying to set-aside

the order dated 04.05.2023 passed in Crl.Misc.No.408/2023

by the III Additional District and Sessions Judge, Tumakuru,

whereunder, the bail petition of this appellant - accused

No.2 sought in respect of Crime No.297/2022 of Koratagere

Police Station, now pending in Spl.Case No.262/2023 for

the offences under Sections 302, 201, 109 r/w Section 34

of IPC (for short hereinafter referred to as "IPC") and

Sections 3(2)(va) of the Scheduled Castes and the

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

short hereinafter referred to as "the Act"), came to be

rejected.

NC: 2023:KHC:30433 CRL.A No. 1191 of 2023

2. Heard learned counsel for the appellant and learned

High Court Government Pleader for respondent No.1 -

State.

3. Inspite of notice, respondent No.2 remained absent

and unrepresented.

4. As per the charge sheet, case of the prosecution is

that accused No.5 - wife of the deceased Sri.Suresh had an

illicit relationship with accused No.1. As a result of that

there was mis-understanding between the deceased with

accused No.5. Due to ill treatment by the deceased,

accused No.5 had been to her relative's house who is none

other than accused No.6 - Smt.Channamma and started

residing in Nayakara Pete village. In that house also, the

deceased Sri.Suresh picked up quarrel with accused No.5.

Due to ill treatment by the deceased Sri.Suresh, both

accused Nos.5 and 6 informed accused No.1 to commit the

murder of Sri.Suresh, agreeing to pay him Rs.20,000/-. At

the instigation of accused No.1, on 28.11.2022, accused

Nos.2 to 4 received a sum of Rs.5,000/- from accused No.5.

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On the same day, at about 4.30 pm., accused No.1 in his

Auto along with accused No.2 had been to Tubugere village

and took up the deceased Sri.Suresh in his Auto, then went

to bye-pass road on Madhugiri at 9.40 pm. By that time,

accused Nos.3 and 4 came there on their two wheeler. All

of them had alcohol at Madhugiri Wines and all of them

along with the deceased Sri.Suresh had been to the vacant

place belonging to one Jodidar Rajanna. Accused No.1 to 4

made the deceased Sri.Suresh to sleep in the Auto and also

pulled his head out side the Auto. Immediately, accused

No.2 kicked with leg on his face and accused No.3 squeezed

the neck of the deceased Sri.Suresh with an intention to

commit his murder. After death of the deceased

Sri.Suresh, accused Nos.1 to 3 shifted the dead body of the

deceased to the land belonging to Sri.Krishnamurthy

(CW-8) at Basavanahalli village and cremated the dead

body in that land. It is the further case of the prosecution

that accused Nos.1 to 4 after committing the murder of

Sri.Suresh, took the dead body to the house of accused

No.5 and shown the dead body to her. Accused No.5

NC: 2023:KHC:30433 CRL.A No. 1191 of 2023

provided a window curtain to cover the dead body and one

spade to burry the dead body. The appellant - accused

No.2 who has been arrested on 12.12.2022 and who is in

judicial custody filed bail application and the same came to

be rejected by the impugned order.

5. Learned counsel for the appellant - accused No.2

would contend that the case has been registered on the

suo moto complaint of the Police Sub-Inspector on the

intimation given by CW8. CW8 stated to have received the

phone call from accused No.1 who has told him regarding

the murder. The entire case of the prosecution is based on

the circumstantial evidence. As per the case of the

prosecution CWs.6 and 7 have last seen the deceased with

accused No.1 in his Auto with another person. CW10 -

Cashier of Madhurigi Wines has seen accused No.3 and

three to four others on 28.11.2022. The motor cycle has

been recovered at the instance of accused Nos.3 and 4

under mahazar. Accused Nos.1 and 2 have shown the spot

where blood stains were found which were seized under

NC: 2023:KHC:30433 CRL.A No. 1191 of 2023

mahazar. There are recovery of mobile phones of accused

Nos.1 to 3 and the spade at the instance of accused No.1.

He further argued that the entire case of the prosecution is

based on the circumstantial evidence and the prosecution

has to prove each of the circumstances to establish the guilt

of the appellant - accused No.2. As per the case of the

prosecution, the only allegation against this appellant -

accused No.2 is that he kicked on the face of the deceased.

As per the postmortem report, the death of the deceased is

as a result of throttling and not because of any injuries over

the face. The said allegation of throttling is as against

accused No.3. As the charge sheet is filed, appellant -

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

Without considering all these aspects, learned Sessions

Judge has passed the impugned order which requires

interference by this court. With this, he prayed to allow the

appeal and grant bail to accused No.2.

6. Per contra, learned High Court Government Pleader

would contend that there is a specific overt-act alleged

NC: 2023:KHC:30433 CRL.A No. 1191 of 2023

against this appellant - accused No.2 that he kicked on the

face of the deceased and the postmortem report reveal that

there were two injuries on the face of the deceased

Sri.Suresh. This appellant - accused No.2 assisted the

other accused in shifting the dead body and burying it in

the land of CW8. CWs.6 and 7 have last sent the deceased

with accused No.1 in his Auto with another person. Even

CW10 has seen accused No.1 with three to four others in

Madhugiri Wines on 21.11.2022. The statement of CW8 has

been recorded under Section 164 Cr.P.C. Accused Nos.1 to

4 have shown the spot stating that they have buried the

dead body there and the dead body was found in that place.

There is recovery of blood stained clothes at the instance of

accused No.1 and examination of FSL report reveal that

they are stained with 'B' group blood. The postmortem

report reveal that there are seven injuries and the death

was due to throttling. The charge sheet material show

prima facie case against accused No.2. Considering all

these aspects, the learned Sessions Judge has rightly

NC: 2023:KHC:30433 CRL.A No. 1191 of 2023

rejected the bail petition. With this, he prayed to dismiss

the appeal.

7. Having heard learned counsel for the appellant and

learned High Court Government Pleader, the Court has

perused the charge sheet material and the impugned order.

8. As per the charge sheet, the overt-act alleged against

this appellant - accused No.2 is that he kicked on the face

of the deceased Sri.Suresh. The postmortem report reveal

that the death of the deceased Suresh is due to throttling.

There is no accusation against this appellant - accused No.2

of throttling. The said over-act of throttling is against

accused No.3. The dead body of the deceased Sri.Suresh

has been exhumed from the spot as shown by accused

persons. There is recovery of blood stained clothes from

this appellant - accused No.2. There are no eye witnesses

to the incident. The case of the prosecution is based on

circumstantial evidence. The prosecution has to establish

each of the circumstances to establish the guilt of the

accused. As the charge sheet is filed, appellant - accused

NC: 2023:KHC:30433 CRL.A No. 1191 of 2023

No.2 is not required for custodial interrogation. Without

considering all these aspects, the Sessions Court has

passed the impugned order which requires interference by

this Court. In the result, the following;

ORDER

The appeal filed by the appellant - accused No.2 is

allowed. The impugned order dated 04.05.2023 passed by

the III Additional District and Sessions Judge, Tumakuru in

Crl.Misc.No.408/2023 is set-aside. The appellant - accused

No.2 is granted bail in Crime No.297/2022 of Koratagere

Police Station (pending in Spl.Case No.262/2023), subject

to following conditions:

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