Karnataka High Court
Deepu @ Dhobi vs State Of Karnataka on 22 February, 2023
Bench: H.P.Sandeshpresided Byhpsj
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CRL.P No. 1203 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO.1203 OF 2023
BETWEEN:
DEEPU @ DHOBI,
S/O ESHWARAPPA,
AGED ABOUT 28 YEARS,
R/AT NO.162/A, 3RD CROSS,
MAHAGANAPATHINAGARA,
SHIVANAHALLI, RAJAJINAGARA,
BANGALORE-560 010.
...PETITIONER
(BY SRI TEJAS N, ADVOCATE)
AND:
STATE OF KARNATAKA BY
KAMAKSHIPALYA POLICE,
Digitally signed BANGALOPRE-560 079.
by SHARANYA T (REPRESENTED BY THE LEARNED
Location: HIGH
COURT OF STATE PUBLIC PROSECUTOR,
KARNATAKA HCK, BANGALORE-01).
...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 CRIME NO.194/2021 OF KAMAKSHIPALYA P.S.,
BANGALORE FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 147, 148, 341, 323, 324, 307, 302 R/W 149
OF IPC IN S.C.NO.555/2022 PENDING ON THE FILE OF THE
LXIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 1203 of 2023
ORDER
Heard the learned counsel for the petitioner and the
learned High Court Government Pleader appearing for
the respondent-State.
2. This is a successive bail petition and earlier
this petitioner, who has been arraigned as accused No.3,
had approached this Court in Crl.P.No.9514/2021. This
Court rejected the petition considering the material
available on record that there are eye-witnesses to the
incident i.e., C.W.1 and C.Ws.11 to 16 and they speak
with regard to the presence of the petitioner and also the
overt-act that he dragged the victim along with accused
Nos.1 and 2 and all of them have assaulted the victim.
The cause of death is on account of multiple injuries
sustained by him, particularly head injury and death was
taken place after 17 days of the incident of assault. This
Court taken note of the principles laid down in 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 an
CRL.P No. 1203 of 2023
observation is made that when they are facing the
charge of unlawful assembly with the common object and
in furtherance of common object, all of them have
inflicted injury, the same has to be considered at the
time of trial.
3. Now, the learned counsel for the petitioner
would contend that accused No.1 has been granted bail
based on medical evidence that he is suffering from HIV.
The learned counsel submits that accused Nos.4 to 6
have also been enlarged on bail by the Trial Court and
this petitioner is in custody from 23.07.2021. The
learned counsel submits that similar allegations are made
against accused Nos.4 to 6 and they have been enlarged
on bail and allegations against this petitioner is also that
along with other accused persons, he inflicted injury.
Hence, on the ground of parity, the petitioner is entitled
for bail.
4. Per contra, the learned High Court
Government Pleader appearing for the respondent-State
CRL.P No. 1203 of 2023
submits that C.W.1 and C.WS.11 to 16 are the eye-
witnesses to the incident and there were multiple injuries
and though deadly weapons are not used, but the cause
of death is on account of head injury sustained by him
and the presence of this petitioner was not disputed.
The learned counsel submits that it attracts Section 304
Part II of IPC, cannot be decided in a bail petition when
the presence is not disputed and eye-witnesses have
witnessed the incident of assault made by this petitioner
and hence the petitioner is not entitled for bail.
5. 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, this Court
rejected the earlier bail petition of the petitioner in
coming to the conclusion that C.W.1 and C.WS.11 to 16
are the eye-witnesses and no doubt, the Trial Court
granted bail in favour of accused Nos.4 to 6. Though it is
contended in the earlier petition that accused Nos.4 to 6
have been enlarged on bail, the said order was not
CRL.P No. 1203 of 2023
placed before the Court and now the same is placed
before the Court. On perusal of the order granted in
favour of accused Nos.4 and 6, the Trial Court comes to
the conclusion accepting the submission of the learned
counsel for the accused that there are no overt-act
allegations. While granting bail in favour of accused
Nos.4 and 6 comes to the conclusion that other accused
persons have been enlarged on bail and hence, they are
entitled for bail on the ground of parity. When such
order is passed by the Trial Court, the same cannot be a
ground to enlarge the petitioner on bail on the ground of
parity.
6. This Court rejected the earlier bail petition
taking note of the overt-act of each of the accused
persons and particularly in respect of this petitioner in
paragraph No.7 taken note of the injuries found in the
post mortem report and cause of death is on account of
head injury. C.W.1 and C.Ws.11 to 16 speak with regard
to the presence of the petitioner and also the overt-act
that he dragged the victim along with accused Nos.1 and
CRL.P No. 1203 of 2023
2 and all of them assaulted the victim. The cause of
death is on account of multiple injuries, particularly head
injury. It is also taken note of the fact that the injured
died after 17 days when he was in the hospital and hence
relied upon the case of Kumer Singh (supra) and also
on the ground of parity, the Court has to take note of the
overt-act of each of the accused persons and when this
Court has formulated the point with regard to the
presence of the petitioner and also injuries are inflicted
and even though no weapons are used, the Court has to
see the nature of injuries sustained by the victim and he
had suffered the multiple injuries and death is on account
of head injury. Hence, the order passed in favour of
accused Nos.4 to 6 cannot be a ground to enlarge this
petitioner on bail when a serious allegation is made
against this petitioner that he had inflicted injury along
with other accused persons. The ground of parity has to
be considered if no overt-act allegation and the Trial
Court while granting bail in favour of accused Nos.4 and
6 even not discussed with regard to the material
CRL.P No. 1203 of 2023
available on record and even not touched upon the
statement of C.W.1 and C.Ws.11 to 16 and hence
discretion cannot be exercised in favour of the petitioner
on the ground of parity.
7. In view of the discussions made above, I pass
the following:
ORDER
The petition is rejected.
Sd/-
JUDGE
MD
