Sri. Ashoka. B. N vs The State Of Karnataka
2023 Latest Caselaw 7201 Kant

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                                                             NC: 2023:KHC:37073
                                                         CRL.P No. 9586 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 11TH DAY OF OCTOBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                             CRIMINAL PETITION NO.9586 OF 2023

                   BETWEEN:

                   1.    SRI ASHOKA B.N.
                         S/O NAGARAJA D.
                         AGED ABOUT 24 YEARS,
                         R/AT BELAKODU
                         KARAGODU VILLAGE,
                         RIPPANPETE,
                         HOSANAGAR TALUK,
                         SHIVAMOGGA DISTRICT-577426.
                                                                  ...PETITIONER

                               (BY SRI K. RAVISHANKAR, ADVOCATE)
                   AND:

                   1.    THE STATE OF KARNATAKA
                         BY THIRTHALLI POLICE STATION,
Digitally signed
by SHARANYA T            THIRTHALLI-577432
Location: HIGH           SHIVAMOGGA DISTRICT
COURT OF                 REPRESENTED BY SPP
KARNATAKA
                         HIGH COURT OF KARNATAKA,
                         BENGALURU -560 001.
                                                                 ...RESPONDENT

                                 (BY SRI NAGESHWARAPPA, HCGP)

                        THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
                   OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
                   CR.NO.175/2021   OF    THIRTHAHALLI   POLICE    STATION,
                   SHIVAMOGGA, FOR THE OFFENCES PUNISHABLE UNDER
                   SECTIONS 302, 201, 120-B R/W. SECTION 34 OF IPC.
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                                              NC: 2023:KHC:37073
                                         CRL.P No. 9586 of 2023




    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:

                             ORDER

Heard the petitioner's counsel and also the counsel

appearing for the State.

2. This petition is a successive bail petition and earlier

this Court had rejected the bail petition of this petitioner in

Criminal Petition No.1948/2022 vide order dated 25.5.2022.

Now the counsel appearing for the petitioner would vehemently

contend that though earlier rejected the bail petition, this Court

granted bail in favour of accused No.3 and charges against him

is also similar in Criminal Petition No.8545/2022 vide order

dated 16.09.2022 and also contend that this Court also granted

bail in favour of accused No.5 in Criminal PetitionNo.4146/2022

vide order dated 2.6.2022. When the similar allegation is made

against accused No.3, this petitioner is also entitled for bail on

the ground of parity. The counsel also would submit that this

petitioner is in custody and not yet commenced the trial and

also the mother of the petitioner is suffering from Kidney stone

and this petitioner is having a small child and the case is rests

upon circumstantial evidence and no purpose would be served

NC: 2023:KHC:37073 CRL.P No. 9586 of 2023

in keeping him in custody and hence he may be enlarged on

bail.

3. Per contra, the counsel appearing for the State

would submits that in the previous occasion this Court rejected

the bail application on the ground that he himself has assaulted

with iron pipe on the vital part of head and also not only

committed the murder and also purchased the petrol and

tarpaulin in order to wrap up the same and also to disposed of

the body by burning the same keeping the dead body in the car

and set the fire on the car and disposed of the body by

screening the evidence. The counsel also vehemently contend

that granting of bail in respect of accused No.5 is that, he only

a part of screening of evidence and only Section 201 of IPC

attracts. The counsel also contend that though bail granted in

favour of accused No.3, the specific allegation made against

him is not found in the order of this Court and only granted bail

on the ground that on voluntary statement of the petitioner

secured the number plate of the car and except this, no

material is seized and granted bail and hence, the question of

parity does not arise. The counsel also would submits that

when serious offence is alleged against him, not only

NC: 2023:KHC:37073 CRL.P No. 9586 of 2023

committed the murder and burnt the body and keeping the

body in a car and set the fire on the vehicle as well as the dead

body and Court has to take note of the gravity of the offence

and liberty may be given only after examination of the

witnesses who have sold the petrol in favour of this petitioner

and also the tarpaulin which they have purchased from other

witness and hence, not a case for granting bail.

4. Having heard the petitioner's counsel and also the

counsel appearing for the State and this Court earlier rejected

the bail petition of this petitioner on the ground that earlier

though prosecution relies upon the witnesses who have sold the

petrol as well as the tarpaulin and the same were used for

screening the evidence of destroying the body and poured the

same on the body and burnt the dead body and also tarpaulin

which was purchased by this petitioner wrapped the body and

specific statement was made by the witness that this petitioner

came and purchased the same along with accused No.3 who is

also the son of the victim.

5. Having perused the specific charges leveled against

the petitioner herein that he had inflicted the injury with iron

NC: 2023:KHC:37073 CRL.P No. 9586 of 2023

pipe on the head and also have purchased the petrol and

tarpaulin and made use of the petrol which was purchased and

also made use of the tarpaulin which was purchased to dispose

of the body, taken note of this Court while rejecting the bail

petition. No doubt this Court has granted bail in favour of

accused No.3 and on perusal of the order there was a reference

is made that no other material is seized except the number

plate of the car. When such being the case Apex Court in the

case of RAMESH BHAVAN RATHOD Vs. VISHANBHAI

HIRABHAI MAKWANA (KOLI) AND ANOTHER reported in

(2021) 6 SCC 230 held that, while granting bail, Court has to

take note of the material collected against the petitioner and

the High Court should not exercise the power in a capricious

manner and has to consider the totality of circumstances before

granting bail. While granting bail, must focus upon the role of

accused, and not only on weapon carried by accused and

granting bail to one of the accused observed that such order

shall not be treated as precedent to claim bail on the basis of

parity in any other case and Court has to look into the

seriousness and gravity of the offences committed and severity

of punishment in the event of conviction.

NC: 2023:KHC:37073 CRL.P No. 9586 of 2023

6. In the case on hand also not only charges leveled

against the petitioner that he inflicted the injury with iron pipe

that too on the head and also thereafter by using the petrol

which this petitioner and other accused No.3 had purchased the

same from the petrol bunk and also purchased tarpaulin are

used for wrapping of the body and the same was disposed of by

setting fire. Merely because the Co-ordinate Bench granted bail

in favour of accused No.3, wherein also the material has not

been considered by this court with regard to the charges

leveled against him and hence, the same cannot be a precedent

to exercise the discretion in favour of this petitioner in view of

the judgment of the Apex Court referred supra and accused

No.5 is granted bail only on the ground that offence under

Section 201 attract and not Section 302 of IPC and the same

also cannot be a ground of parity.

7. Having perused the material available on record and

also the statement of witnesses who are the material witnesses

from whom they have purchased the petrol and tarpaulin and

they have given the statement before the police during the

course of investigation and rightly pointed out by the counsel

NC: 2023:KHC:37073 CRL.P No. 9586 of 2023

for the State that unless those material witnesses have been

examined before the trial Court, question of granting the bail

does not arise.

8. In view of the discussions made above, I pass the

following:

ORDER

Bail petition is rejected. However, liberty is given to the

petitioner to approach this Court after examination of CWs.15

and 16.

Sd/-

JUDGE

AP List No.:1 Sl No.:134