Nikhil S/O. Basavaraj Marate vs State Of Karnataka
2023 Latest Caselaw 3920 Kant

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                                                            NC: 2023:KHC-D:6634
                                                            CRL.A No. 100200 of 2023




                                  IN THE HIGH COURT OF KARNATAKA

                                           DHARWAD BENCH

                                 DATED THIS THE 4TH DAY OF JULY, 2023

                                                BEFORE
                                 THE HON'BLE MR JUSTICE ANIL B KATTI
                                 CRIMINAL APPEAL NO. 100200 OF 2023
                      BETWEEN:

                      NIKHIL S/O. BASAVARAJ MARATE,
                      AGE. 19 YEARS, OCC. LABOURER,
                      R/O. NAVANAGAR, TAL. HANAGAL,
                      DIST. HAVERI-581110
                                                                        ...APPELLANT

                      (BY SRI. B.C.JNANAYYA SWAMI, ADVOCATE)

                      AND:

                      1.   STATE OF KARNATAKA,
                           REP. BY HANAGAL POLICE STATION,
                           NOW REPRESENTED BY STATE PUBLIC PROSECUTOR,
                           HIGH COURT OF KARNATAKA, DHARWAD,
                           BENCH AT DHARWAD-580008.

        Digitally     2.   KRISHNA NAYAK, S/O DEVENDRA NAYAK,
        signed by J
        MAMATHA            AGE. 50 YRS, OCC. LABOURER,
J
MAMATHA Date:              R/O. YENNIKOPPA, TAL. SORABA,
        2023.07.06
        11:07:03 -         DIST. SHIVAMOGGA-577201.
        0700
                                                                     ...RESPONDENTS

                      (BY SRI. PRAVEEN UPPAR, HCGP FOR R1
                           R2 SERVED)
                           THIS CRIMINAL APPEAL IS FILED U/ SEC. 14 (A) (2) OF SC/ST
                      ACT SEEKING TO SET ASIDE THE ORDER PASSED BY THE COURT OF
                      I ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, AT:
                      HAVERI IN CRL MISC NO. 212/2023 AND ENLARGE THE APPELLANT
                      ON ANTICIPATORY IN THE EVENT OF HIS ARREST IN CRIME NO.
                      214/ 2022 REGISTERED BY HANAGAL P.S. FOR THE OFFENCES
                      PUNISHABLE UNDER SECTIONS 143, 147, 148, 323, 396, 504, 149
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                                             NC: 2023:KHC-D:6634
                                             CRL.A No. 100200 of 2023




OF IPC, 1860 AND SECTIONS 3(1) (r) , 3(2)(v) , 3,(2) (Va) OF SC /
ST (POA) AMENDMENT ACT, 2015 IN SO FAR AS APPELLANT.
ACCUSED NO. 1 IS CONCERNED.

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


                                JUDGMENT

Appellant/accused No.1 feeling aggrieved by the

rejection of anticipatory bail application filed under Section 438

of Cr.P.C. on the file of I Addl. District and Sessions Judge and

Special Judge, Haveri, in Crl.Misc.No.212/2023 dated

11.04.2023 preferred this appeal.

2. Parties to the appeal are referred with their ranks as

assigned in the trial Court for the sake of convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that on

04.12.2022 at about 1 a.m., complainant found 2 motorcycles

parked in front of the shop of Yankappa and the tiles of the said

shop were removed and there was light of electricity in the said

shop. Complainant further found that two persons were

removing petrol from the vehicle belonging to him parked near

the shop. When the complainant questioned the same, person

removing petrol from his bike hit on the head and fled away

NC: 2023:KHC-D:6634 CRL.A No. 100200 of 2023

from the place. Complainant by shouting awakened Yankappa.

At that time, 4 to 5 persons of age group between 22 to 25

robbed Rs.40,000/- from the pocket of Yankappa and he was

assaulted by means of club over his right side eye and chin and

dragged him to some distance, thereafter all of them fled away

from the place on their motorcycle. The injured Yankappa was

shifted to hospital and he succumbed to injuries on 05.12.2022

while he was under treatment in KIMS Hospital, Hubballi. On

these allegations made in the complaint filed by Krishna S/o

Devendra Nayak criminal law was set into motion by registering

case against unknown persons for the offence punishable under

Sections 143, 147, 148, 326, 396 read with Section 149 of IPC.

On completion of investigation, charge-sheet came to be filed.

4. Learned High Court Government Pleader for

respondent/State filed objections contending that there are

sufficient material evidence against the appellant for the

offences alleged against him. It is a case of murder for gain.

The anticipatory bail application in terms of Section 18 of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, is not maintainable. The appellant is in the

habit of committing similar offences and already there is a case

NC: 2023:KHC-D:6634 CRL.A No. 100200 of 2023

against him in Cr.No.161/2022 for the offence punishable under

Sections 457 and 350 of the IPC. Accused Nos.1, 2 and 4 were

not available for the investigation and have absconded from the

process of law. Therefore, it is not a fit case for grant of

anticipatory bail. On these grounds, prayed for dismissal of the

appeal.

5. Heard the arguments of both sides.

6. On careful perusal of the entire charge-sheet

material, it would go to show that as per the case of

prosecution, accused Nos.1 and 5 were alleged to have been

removing petrol from the bike parked by the side of a shop of

Yankappa. Accused Nos.2 and 4 have removed the tiles of the

shop and there was electricity light in the shop. The complaint

allegations would go to show that about 4 to 5 boys between

the age group of 22 to 25 years robbed cash of Rs.40,000/-

from the pocket of Yankappa and assaulted on him by means of

club over right side of his head and chin, due to which he

sustained injuries. The Post Mortem report of deceased

Yankappa would go to show that death is due to respiratory

failure as a result of head injury sustained. However, viscera

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was preserved for chemical analysis and after receiving the

chemical analysis report, final opinion is recorded as death is

due to respiratory failure as a result of head injury sustained.

Therefore, it is evident that Yankappa died due to head injury

sustained in the incident.

7. The complaint allegations do not speak as to who

has assaulted over the head of Yankappa by means of clubs.

However, general allegations have been made that 4 to 5

persons between the age group of 22 to 25 by means of club

assaulted over the head of Yankappa. Indisputably, FIR is

registered against unknown persons. The involvement of

present appellant who is arrayed as accused No.1 is based on

the voluntary statement of accused Nos.3 and 5. The

prosecution claims that accused No.5 after his arrest on

06.12.2022 gave voluntary statement. It is on the basis of the

said revelation made by accused No.5 he was shown to

complainant CW-1 Krishna Naik and the witnesses CWs-14 -

Ameer Khan, CW-15 - Sameer Devihosur and CW -16 -

Nannesab. It is thereafter, accused No.3 was arrested and he

is said to have given voluntary statement on 15.12.2022. The

statement of CW-14 Ameer Khan, CW -15 Sameer Devihosur

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and CW - 16 -Nannesab are also said to have identified accused

No.5 who is one amongst the group of persons objected for

playing song in Gouri festival. However, their statement

reveals that they only referred the name of appellant/accused

No.1 on the basis of revelation made by accused No.5.

Whether such identification of either accused No.5 and his

revelation regarding the involvement of appellant and other

accused is a matter of trial.

8. Another contention of learned High Court

Government Pleader is that accused No.1 is involved in another

case. The mere pendency of another case itself cannot be

alone a ground to reject the claim of appellant.

9. Learned counsel for appellant has produced

judgment of this Court in Crl.A.No.100134/2023 disposed of on

20.04.2023 wherein similarly placed accused No.5 has been

released on bail. In view of the above recorded reasons and

there being no specific overt act of accused No.1 causing injury

to deceased Yankappa is being made out by the prosecution, at

this stage, appellant/accused No.1 is entitled for anticipatory

bail. The apprehension of the learned High Court Government

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Pleader can be met by imposing appropriate conditions.

Consequently, proceed to pass the following:

ORDER

Appeal filed by appellant/accused No.1 is hereby allowed.

The order of trial Court in Crl.Misc.No.212/2023 on the

file of I Addl. District and Sessions Judge and Special Judge at

Haveri dated 11.04.2023 is set aside.

Appellant/accused No.1 is ordered to be released on bail

in the event of his arrest subject to following conditions:

i) Appellant/accused No.1 shall execute personal bond

and surety bond for a sum of Rs.50,000/- with one

surety for likesum amount,

ii) Appellant shall appear before the trial Court on

every date of hearing unless otherwise exempted

for valid reasons,

iii) Appellant shall produce address proof document of

himself and that of his surety,

iv) Appellant shall appear before the Investigating

Officer if called for the purpose of investigation.

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The registry is directed to transmit the records with the

copy of this judgment to trial Court.

(Sd/-) JUDGE

JM