Mr Rajashekar vs State By Challakere Police ...
2023 Latest Caselaw 530 Kant

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                                                    CRL.A No. 1949 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 9TH DAY OF JANUARY, 2023

                                           BEFORE
                  THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                              CRIMINAL APPEAL NO. 1949 OF 2022
                  BETWEEN:

                  MR. RAJASHEKAR
                  S/O RANGANNA
                  AGED ABOUT 32 YEARS
                  R/AT HOUSE No.30/01
                  NEAR SUGGALAMMA TEMPLE
                  BANDIOMOT, BALALRI TOWN
                  BALLARI - 583 101.                        ...APPELLANT


                  (BY SRI K BALAKRISHNA AND SIDDAYYA P, ADVOCATE)

                  AND:

                  1. STATE BY CHALLAKERE POLICE STATION
                  CHALLAKERE
                  CHITRADURGA DISTRIAT - 577 522.

                  REP. BY STATE PUBLIC PROSECUTOR
                  HIGH COURT COMPLEX
Digitally signed by
SANDHYA S         BENGALURU - 560 001.
Location: High
Court of Karnataka 2. LAKSHMIBAI
                  W/O GOPAL NAIK
                  AGED ABOUT 45 YEARS
                  VEERADIMMANAHALLI VILLAGE
                  CHALLAKERE TALUK
                  CHITRADURGA DISTRICT - 577 522.         ...RESPONDENTS

                  (BY SRI S VISHWA MURTHY, HCGP FOR R-1
                   R-2 IS SERVED AND UNREPRESENTED)
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                                    CRL.A No. 1949 of 2022




     THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT
PRAYING TO DIRECT THE RESPONDENT DPOLICE IN RELEASE
THE APPELLANT ON BIAL IN SPL.CASE NO.(SC/ST) 23/2022
REGISTERED WITH THE RESPONDENT POLICE i.e CHALLAKERE
P.S., IN CR.No.146/2022 DATED 07.05.2022 FOR THE
OFFENCE P/U/S 302, 201 R/W 34 OF IPC AND ALSO UNDER
SEC.3(2)(v) OF SC/ST ACT PENDING ON THE FILE OF SPL.II
ADDL.DISTRICT AND SESSIONS JUDGE AT CHITRADURGA.

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

               JUDGMENT

Appellant - accused No. 2 has filed this appeal

challenging the order dated 17.09.2022 passed in Special

case (SC/ST) No. 22/2022 by the Special II Additional

District and Sessions Judge, Chitradurga, whereunder the

bail application filed by the appellant - accused No. 2 in

Crime No. 146/2022 of Challakere Police Station for the

offence punishable under Sections 302, 201 and 34 of IPC

and Sections 3(2)(v) of SC ST (Prevention of Atrocities)

Act, 1989, came to be rejected.

CRL.A No. 1949 of 2022

2. Heard learned counsel for the appellant and

learned HCGP appearing for respondent No. 1 - State.

Inspite of service of notice, respondent No. 2 remained

absent and unrepresented.

3. Case of the prosecution as per the charge sheet

is that the appellant - accused No. 2 had illicit relationship

with accused No. 1 who is the wife of deceased. Accused

No. 1 and appellant - accused No. 2 conspired to kill the

deceased Gopalanayaka so that they can lead happy life.

On 21.04.2022 at the instance of a phone call received

from accused No. 1, appellant - accused No. 2 went to

Yalagatta Gollarahatti village where accused No. 1 and

deceased had gone in an Autorickshaw to sell vegetables.

At about 11.30 pm, accused Nos. 1 and 2 along with the

deceased were coming back to the village on a motorcycle

near the land of one Dyamanna and accused Nos. 1 and 2

pushed the dragged the deceased Gopalanayaka as a

result of which he fell down and sustained injury on the

CRL.A No. 1949 of 2022

backside of his head. Accused No. 1 held the deceased

and accused No. 2 pressed his neck and caused his

death. It is further case of the prosecution that concealing

the commission of the aforesaid offence they brought the

dead body to the General Hospital, Challakere, stating

that due to epilepsy Gopalanayaka died. Charge sheet has

been filed against appellant - accused No. 2 for the

offence punishable under Sections 302, 201 and 34 of IPC

and Sections 3(2)(v) of SC ST (Prevention of Atrocities)

Act, 1989. Appellant - accused No. 2 has filed bail

application and the same came to be rejected by order

dated 17.09.2022. The said order has been challenged in

the present appeal.

4. Learned counsel for the appellant would

contend that the death of the deceased has taken place

on 20.04.2022 and complaint came to be filed on

07.05.2022 and there is a delay in filing the complaint.

There was a rift between the complainant and the accused

CRL.A No. 1949 of 2022

with regard to financial transaction and therefore, a false

complaint came to be filed against him. The post-mortem

report indicates that the deceased had sustained head

injury and cause of death is due to head injury. But, the

averments in the complaint reveal that accused Nos. 1

and 2 have pressed the neck of the deceased and there is

no corresponding injuries noted in the post-mortem

report. There are no eye witnesses to the incident and the

case of the prosecution is based on circumstantial

evidence and each of the circumstances will have to be

proved by the prosecution at the time of trial. As charge

sheet has been filed appellant - accused No. 2 is not

required for custodial interrogation. Without considering

all these aspects learned Special II Additional District and

Sessions Judge has passed the impugned order which

requires interference by this Court. With this, he prayed

to allow the petition and grant bail to appellant - accused

No. 2.

CRL.A No. 1949 of 2022

5. Per contra, learned HCGP appearing for

respondent No. 1 - State would contend that the post-

mortem report reveal that cause of death of the deceased

is due to head injury sustained. Statement of witnesses,

C.Ws. 9, 10, 11 and 13 reveal that they have seen the

accused Nos. 1 and 2 along with the deceased on the date

of the incident. In the post-mortem report also it is noted

that there are abrasions on all the five toes of left leg of

the deceased. Charge sheet material shows prima facie

case against appellant - accused No. 2. Considering these

material learned Special II Additional District and Sessions

Judge has passed the impugned order which does not call

for interference by this Court. With this, he prayed to

dismiss the appeal.

6. Having regard to the submissions made by the

learned counsel for the appellant and the learned High

CRL.A No. 1949 of 2022

Court Government Pleader this Court has gone through the

charge sheet records.

7. Case of the prosecution is that appellant - accused

No. 2 was having illicit relationship with accused No. 1.

Accused No. 1 is the wife of deceased Gopalanayaka. The

deceased Gopalanayaka was coming in the way of the illicit

relationship between accused Nos. 1 and 2. Therefore,

accused Nos. 1 and 2 conspired to kill the deceased

Gopalanayaka, accused No. 1 pushed the deceased, he fell

on the road, sustained head injury and they pressed the

neck of the deceased and caused his death. The post-

mortem report reveal that cause of death of the deceased

is due to head injury sustained. There are no marks found

on the neck of the dead body as alleged in the complaint

that the accused have pressed the neck of the deceased

and caused his death. There are no eye witnesses to the

incident and the entire case of the prosecution is based on

circumstantial evidence. Statements of C.Ws.9 to 11 and

CRL.A No. 1949 of 2022

13 reveal that they have seen accused Nos.1, 2 and the

deceased together on 20.04.2022 at about 09.00 pm. It is

the case of the prosecution that these witnesses have last

seen the deceased with accused Nos. 1 and 2. As the case

of the prosecution is based on circumstantial evidence it is

for the prosecution to prove each of the circumstances at

the trial. As the charge sheet is already filed, appellant is

not required for custodial interrogation. The apprehension

of the prosecution is that if the appellant - accused No. 2

is granted bail he will tamper the prosecution witnesses

can be met with by imposing stringent conditions. In the

facts and circumstances of the case and submission of the

learned counsel for the parties, there are valid grounds for

setting aside the impugned order and granting bail to

appellant - accused No. 2 subject to terms and conditions.

Hence, I proceed to pass the following;

CRL.A No. 1949 of 2022

ORDER

Appeal is allowed. The impugned order dated

17.09.2022 passed in Spl.C. (SC/ST) No. 23/2022 passed

by the Special II Additional District and Sessions Judge,

Chitradurga is set aside. Consequently, appellant -

accused No. 2 is granted bail and he is ordered to be

released on bail Spl.C. (SC/ST) No. 23/2022 (Crime No.

146/2022 of Challakere Police Station) subject to the

following conditions:

i. Appellant - accused No. 2 shall execute a personal bond for a sum of Rs.1.00 lakh (Rupees One lakh only) with a surety for the likesum to the satisfaction of the jurisdictional Court.

ii. Appellant - accused No. 2 shall not indulge in tampering the prosecution witnesses.

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CRL.A No. 1949 of 2022

iii. Appellant - accused No. 2 shall attend the Court on all the dates of hearing unless exempted by the Court and cooperate for the speedy disposal of the case.

Sd/-

JUDGE

LRS