Karnataka High Court
Mr. Deekshith Shetty @ Devi Prasad ... vs The State Of Karnataka on 5 July, 2023
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 979 OF 2023
BETWEEN:
1. MR.DEEKSHITH SHETTY @
DEVI PRASAD SHETTY
S/O. RATHNAKAR SHETTY
AGED ABOUT 31 YEARS
RESIDING AT KUTHYATHUR
KULLAUN, KELAGINAMANE,
BAJAV POST, KATIPALLA-575 030.
SURATHKAL,
MANGALURU CITY, D.K.,
...PETITIONER
Digitally (BY SRI. P.P. HEGDE, SR. COUNSEL FOR
signed by SRI.RAKESH KINI, ADVOCATE)
SUMITHRA R
Location: AND:
High Court of
Karnataka THE STATE OF KARNATAKA
BY HIRIADKA POLICE STATION,
UDUPI DISTRICT,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. K.KRISHNA KUMAR, HCGP)
THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CR.NO.39/2020, ON
THE FILE OF HIRIADKA POLICE STATION, PENDING IN
S.C.NO.6/2021, ON THE FILE OF PRINCIPAL DISTRICT AND
SESSIONS JUDGE, UDUPI, FOR THE OFFENCES PUNISHABLE
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UNDER SECTIONS 120(B), 143, 144, 147, 148, 341, 427, 504,
506, 324, 307, 302 R/W 149 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY PRONOUNCED THE
FOLLOWING:
DATE OF RESERVED THE ORDER : 23.06.2023
DATE OF PRONOUNCEMENT OF THE ORDER: 05.07.2023
ORDER
This is a petition filed under Section 439 Cr.P.C.
seeking bail to accused No.6 in a case pending on the file
of Principal District and Sessions Judge, Udupi, in
S.C. No.6/2021.
2. I have heard the submission of the learned
Senior counsel Sri P.P.Hegde, appearing for petitioner and
the learned HCGP Sri K.Krishnakumar, for respondent -
State.
3. Crime No.39/2020 of Hiriadka Police Station,
Udupi, is registered on a complaint lodged by one Divyaraj
Shetty S/o Jiyananda Shetty with regard to an incident of
assault and murder which took place at about 2.15 p.m.
on 24.09.2020, near the entrance of Veerabhadra Temple,
situated at Hiriadka Junction, Bommerbettu village, Udupi.
Charge sheet is filed against accused Nos.1 to 9 for
offences punishable under sections 120B, 143, 144, 147,
148, 341, 427, 504, 506, 324, 307, 302 and 149 IPC.
4. It is the case of prosecution that on account of
a financial dispute between accused No.1-Manoj Kodikere
and deceased Kishan Hegde, the said accused conspired
with other accused persons to commit his murder and in
furtherance of their conspiracy, all the accused formed an
unlawful assembly with a common object of committing
his murder and came to the spot in different vehicles,
armed with deadly weapons and assaulted the deceased
indiscriminately all over his body and committed his
murder.
5. In the charge sheet, CW-1 to CW-13 are shown
as the eyewitnesses. A perusal of the complaint reveal
that at the time of incident the deceased was along with
CW1 and one Hariprasad Shetty-CW2. It is averred in
the complaint that all the three were proceeding in a car
bearing Reg. No.KA-19-ME-7030 belonging to the
deceased to Veerabhadra Temple and when they were
about to alight from the car, accused No.1 and other
accused persons came in different vehicles and got down
from their vehicles holding deadly weapons and smashed
the windshield of their car and assaulted the deceased and
committed his murder.
6. The petitioner was arrested on 26.09.2020.
The trial is in progress. The primary contention of the
learned Senior counsel is that the eyewitnesses who are
examined have not supported the case of the prosecution
and the evidence of CW1/PW5 suffers from serious
infirmity and a perusal of his evidence would show that he
could not have identified any of the accused, since
according to him the accused were wearing mask. It is his
contention that when there is no legal evidence which
incriminates the petitioner with the alleged crime then he
cannot be detained in custody till conclusion of the trial.
He would further contend that accused NoS.7 to 9 are
already enlarged on bail and therefore, the petitioner who
is languishing in judicial custody for nearly two years is
also entitled for bail.
7. He has relied on the judgments reported in
i) 2022 SCC online Kar 115 ii) 2020 SCC online Kar 3111,
iii) 2020 SCC online Kar 22 iv) 2020 SCC online Kar 1095
v) 2020 SCC online Kar 3955 and an unreported judgment
passed in Crl.P.No.11307/2022 disposed of on
27.01.2023.
8. Per contra, the learned High Court Government
Pleader has strenuously opposed the prayer seeking bail
contending that the petitioner is one of the assailants who
was armed with a Talwar and assaulted the deceased and
he has been identified by the complainant. He contends
that since the trial is in progress, in view of the heinous
offence committed by the petitioner, there is every chance
of petitioner fleeing from justice and also posing threat to
the other prosecution witnesses who are yet to be
examined. Accordingly, he has sought to dismiss the
petition.
9. At the outset, it is relevant to mention that
grant of bail depends on the facts and circumstances of
each case. In a case of heinous offences, grant of bail to
an accused depends on the nature of evidence collected
against him, the gravity of the offence, the severity of
punishment, chances of tampering the prosecution
witnesses and fleeing from justice. An accused would be
entitled for bail in such cases if there are sufficient reasons
to believe that he has not committed the offence. Having
gone through the decisions relied upon by the learned
Senior counsel, this Court is of the firm view that those
decisions are not applicable to the facts of the case.
10. The learned counsel for the petitioner has
furnished copy of the depositions of CWs.1 to 13. It is
true that CWs.2 to 13 who are examined before the trial
Court have not supported the case and they have been
treated hostile by the prosecution. However, the
complainant-CW1 who is examined as PW5 has deposed
that he has identified six accused including the petitioner
in the test identification parade. He has narrated how the
incident has taken place. The contention that he has
admitted the accused were wearing mask at the time of
incident and therefore he could not have identified them
etc., cannot be appreciated at this stage. This Court
cannot prejudge the case, especially when the trial is in
progress. Any observations made in this regard would
prejudice the case of the prosecution or the defence. It is
for the trial Court to appreciate the evidence on record and
come to a conclusion with regard to the offence committed
by an accused. The material on record clearly reveal that
the complainant was present along with the deceased
when the incident took place. The prosecution is also
relying on other evidence such as recovery of weapons
etc. As per post mortem report, deceased has sustained
25 injuries, which indicates the manner in which the
offence is committed, in a broad day light.
11. There are no specific allegations against
accused Nos.7 to 9 that they have assaulted the deceased.
Accused No.8 and 9 are granted bail by the coordinate
Bench in Crl.P.No.2389/21 disposed on 24.08.2021. It is
specifically observed that the said accused are not the
assailants. Similarly placed accused No.7 was granted
bail by the learned Sessions Judge. However, the
petitioner stand on a different footing. There are specific
overtacts against him that he has assaulted the deceased
with a Talwar, a deadly weapon. Hence, grant of bail to
accused Nos.7 to 9 will not enure to the benefit of the
petitioner. Considering the nature and gravity of the
offence and the manner in which it is committed and the
punishment prescribed, the incarceration now undergone
by the petitioner is not a ground to enlarge him on bail.
Petition is dismissed.
Sd/-
JUDGE
TL
