Karnataka High Court

Mudalagiriaiah vs The State Of Karnataka By on 14 March, 2023

Bench: Mohammad Nawaz

                                            -1-
                                                        CRL.A No. 86 of 2023
                                                   C/W CRL.A No. 150 of 2023




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 14TH DAY OF MARCH, 2023

                                          BEFORE
                        THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                             CRIMINAL APPEAL NO. 86 OF 2023
                                          C/W
                             CRIMINAL APPEAL NO. 150 OF 2023

                 IN CRL.A.NO.86/2023

                 BETWEEN:

                 1.    MUDALAGIRIAIAH
                       S/O NARASAPA
                       AGED ABOUT 45 YEARS
                       AGRICULTURIST
                       R/AT PEDDANAHALLI VILLAGE
                       KASABA HOBLI
                       GUBBI TALUK
                       TUMKUR DISTRICT-572 216.
                                                                ...APPELLANT

Digitally        (BY SRI. VIKYATH B.,ADVOCATE)
signed by
LAKSHMI T        AND:
Location: High
Court of         1.    THE STATE OF KARNATAKA BY
Karnataka              GUBBI POLICE STATION
                       REPRESENTED BY
                       HCGP, HIGH COURT BUILDING
                       BANGALORE-560 001.

                 2.    SRIDHARA P M
                       S/O LATE MUDALAGIRIYAPPA
                       AGED ABOUT 37 YEARS
                       R/AT PEDANNAHALLI VILLAGE
                       KASABA HOBLI,
                       GUBBI TALUK
                            -2-
                                       CRL.A No. 86 of 2023
                                  C/W CRL.A No. 150 of 2023




     TUMKUR DISTRICT-572 216.


     NOW R/AT ADALAGERE,
     NITTUR HOBLI, GUBBI TALUK,
     TUMKUR DISTRICT-572 216.
                                            ...RESPONDENTS

(BY SRI. K.NAGESHWARAPPA,         HCGP;   R2-SERVED    AND
UNREPRESENTED)

     THIS CRL.A IS FILED U/S.14(A)(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER PASSED IN CRL.MISC.NO.1647/2022
BEFORE THE III ADDL.DISTRICT AND SESSIONS JUDGE,
TUMKUR AND IN SPL.C.NO.341/2022 CR.NO.80/2022 BEFORE
THE III ADDL.DISTRICT AND SESSIONS JUDGE AT TUMKUR
AND TO ENLARGE HIM ON BAIL IN FOR THE OFFENCE P/U/S
143,144,148,323,324,302,301,120B,504,114 R/W 34 OF IPC
AND SEC.3(2)(v) OF SC/ST ACT.

IN CRL.A. NO.150/2023

BETWEEN:

1.   NIJAGUNA
     S/O LATE BASAVAIAH
     AGED ABOUT 38 YEARS
     R/AT PEDDANAHALLI VILLAGE
     KADABA HOBLI
     GUBBI TALUK
     TUMAURU DISTRICT-572 219.
                                               ...APPELLANT

(BY SRI. H V PRAVEEN GOWDA, ADVOCATE)

AND:

1.   STATE BY KARNATAKA
     BY GUBBI POLICE STATION
     REP BY STATE PUBIC PROSECUTOR
     HIGH COURT
     BANGALORE-560 001.
                             -3-
                                       CRL.A No. 86 of 2023
                                  C/W CRL.A No. 150 of 2023




2.   SRI SRIDHAR.P.M
     S/O MUDALAGIRIYAPPA
     AGED ABOUT 39 YEARS
     RESIDING AT PENDANHALLI VILLAGE
     KADABA HOBLI
     GUBBI TALUK
     TUMAKURU DISTRICT-572 219.

     NOW R/AT ADALAGERE VILLAGE
     NITTUR HOBLI
     GUBBI TALUK
     TUMAKURU DISTRICT-572 223.
                                            ...RESPONDENTS

(BY SRI.K.NAGESHWARAPPA, HCGP FOR R1; R2 SERVED AND
UNREPRESENTED)

     THIS CRL.A IS FILED U/S.14(A)(2) CR.P.C PRAYING TO
SET    ASIDE    THE   ORDER     DATED     15.10.2022     IN
CRL.MISC.NO.1252/2022 BEFORE THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU AND ENLARGE
THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST BY
THE     RESPONDENT       POLICE      IN     CR.NO.80/2022
(SPL.C.NO.341/2022) ON THE FILE OF III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU             FOR THE
OFFENCE P/U/S 143, 144, 148, 323, 324, 302, 201, 120B, 504,
114 R/W 34 OF IPC AND SEC.3(2)(v) OF SC/ST ACT.

     THESE APPEALS ARE COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Criminal Appeal No.86/2023 is by accused No.12 and

Criminal Appeal No.150/2023 is by accused No.28.

CRL.A No. 86 of 2023 C/W CRL.A No. 150 of 2023

2 Heard the learned counsel appearing for the

respective appellants and learned High Court Government

Pleader for respondent/State.

3. Respondent No.2/de-facto complainant has been

served but there is no representation.

4. Charge-sheet is filed in connection with Crime

No.80/2022 registered at Gubbi Police Station against 29

accused for offences punishable under Sections 143, 144, 148,

323, 324, 302, 201, 120B, 504, 114 r/w 149 of IPC and Section

3(2)(v) of SC/ST (POA) Act.

5. It is alleged by the prosecution that deceased Girish

S/o late Mudalagiriyappa was committing theft of Arecanuts

etc. in the village and therefore accused No.1 conspired with

other accused persons to catch him red-hand and teach him a

lesson. He informed other accused persons that on 21.04.2022

during Kollapuradamama Festival conducted in Peddanahalli

village, he will catch Girish S/o late Mudalagiriyappa red hand

and conspired with them to commit his murder. At about 9.00

p.m. accused No.1 took Girish S/o late Mudalagiriyappa and

another deceased Girish S/o Kempanna and when the deceased

CRL.A No. 86 of 2023 C/W CRL.A No. 150 of 2023

were committing theft of starter at about 11.30 p.m., all the

accused who had formed an unlawful assembly, surrounded

both the deceased and assaulted them with wooden handle of

the pick axe, reeper patti and kicked with legs etc. and also

caused burn injuries. They then tied them to a bamboo pole.

Thereafter, the dead body of Girish S/o Mudalagiriyappa was

dumped in a pond and Girish S/o Kempanna on the road near

Mattadagundi.

6. FIR was registered against accused No.1-Nandish

and others on the basis of a complaint lodged by one Sridhar

P.M. namely the brother of Girish S/o late Mudalagiriyappa. It

is averred in the complaint that one Sandeep and others took

Girish, complainant's brother with them at about 8.30 or 9.00

p.m on 21.04.2022 and his brother did not return. Thereafter,

he came to know that his brother was murdered and dead body

is floating in a pond and another person was also found dead at

some distance. Complainant went to the spot and noticed the

two dead bodies and suspected that accused No.1 and his

supporters might have killed his brother and another person.

CRL.A No. 86 of 2023 C/W CRL.A No. 150 of 2023

7. Charge-sheet has been filed against accused Nos.1

to 29. The appellants herein are arraigned as accused Nos.12

and 28 respectively. It is alleged that all the accused formed

an unlawful assembly and they surrounded the deceased and

assaulted them with weapons and also assaulted with hands

and kicked with legs etc. The allegations against accused

No.12 is that he has assaulted the deceased with hands and

kicked him with legs. Similar allegations are made against

accused Nos.10, 11, 13 to 17. Against accused No.28 there is

no specific overt acts of assaulting the deceased. It is alleged

that he is one of the member of unlawful assembly and he

along with accused Nos.10, 27 and 26 tied the deceased to a

bamboo stick and threw the dead bodies in the pond and on a

road near Mattadagundi.

8. According to prosecution, accused No.1 conspired

with other accused persons to teach a lesson to the deceased

who were committing theft in the village and hatched a plan to

commit murder. The learned counsel for appellants have made

available copy of the bail orders passed in respect of accused

Nos.20, 21, 22, 25 and 29 in criminal appeal No.2105/2022

dated 05.01.2023 and in respect of accused Nos.23, 24 and 11,

CRL.A No. 86 of 2023 C/W CRL.A No. 150 of 2023

in criminal appeal Nos.2265, 2250 and 2278/2022 dated

23.01.2023. The appellants are similarly placed as accused

who are now enlarged on bail by a coordinate Bench of this

Court.

9. It is contended by the learned High Court

Government Pleader that insofar as accused No.28 is

concerned, he is not entitled for the relief of anticipatory bail

since the provision of SC/ST Act have been invoked and there

is a bar under Section 18 and 18A to grant anticipatory bail to a

person accused of committing any offence under the said Act.

10. The name of both the appellants are not found in

the First Information Report. Further, it is not the case of

prosecution that on the ground that the deceased belong to

SC/ST the offence was committed. The case of the prosecution

is that the deceased were involved in committing theft in the

village therefore accused No.1 conspired with other accused

persons to teach a lesson. It is the contention of the learned

counsel appearing for appellants that the incident has taken

place during night hours and therefore it was not possible for

anyone to identify the accused persons. Further contented that

CRL.A No. 86 of 2023 C/W CRL.A No. 150 of 2023

the appellants have not assaulted the deceased with any

weapons. Therefore, it is contended that there was no

mensrea on the part of the appellants to commit murder as

alleged by the prosecution. It is also submitted that except

accused Nos.1 to 9, 28 and the present appellants, all other

accused are enlarged on bail.

11. Considering the above facts and circumstances and

for the foregoing reasons, the relief sought by the appellants

can be granted by imposing suitable conditions. Accordingly,

the following:

ORDER

Criminal Appeal No.86/2023 is allowed. The order dated

18.11.2022 passed in Spl.C.No.341/2022 by the Court of III

Additional District and Sessions Judge at Tumkur is set aside.

The appellant/accused No.12 shall be enlarged on bail in Crime

No.80/2022 of Gubbi Police Station, subject to following

conditions:

i. He shall execute a bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum to the satisfaction of the Jurisdictional Court.

CRL.A No. 86 of 2023 C/W CRL.A No. 150 of 2023

ii. He shall furnish proof of his residential address and shall inform the Court if there is any change in the address.

iii. He shall not tamper with the prosecution witnesses either directly or indirectly.

iv. He shall not involve in any criminal activity.

v. He shall be regular in attending the Court proceedings.

Criminal Appeal No.150/2023 is allowed. The order dated

15.10.2022 passed in C.Misc No.1252/2022 by the Court of III

Additional District and Sessions Judge at Tumkur is hereby set

aside. The appellant/accused No.28 shall be released in the

event of his arrest in Crime No.80/2022 of Gubbi Police Station,

subject to following conditions:

i. He shall appear before the Investigation Officer within a period of one week from the date of receipt of a copy of this order and shall execute a bond in a sum of