Sri Shiva @ Shivanna vs State Of Karnataka
2023 Latest Caselaw 6546 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 15TH DAY OF SEPTEMBER, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.4993/2023
BETWEEN:

1.     SRI SHIVA @ SHIVANNA
       AGED ABOUT 28 YEARS
       S/O. JAVARASHETTY

2.     SMT. BHAGYA @ SOWBHAGYA
       AGED ABOUT 24 YEARS
       W/O. SRI. SHIVA @ SHIVANNA

       BOTH RESIDING AT
       R/AT UPPARA STREET,
       BHEEMANABEEDU VILLAGE,
       GUNDLUPETE, CHAMARAJANAGAR
       KARNATAKA-577 221.              ... PETITIONERS

          (BY SMT. ANUPARNA BORDOLOI, ADVOCATE)
AND:

STATE OF KARNATAKA
BY GUNDLUPET POLICE STATION
GUNDLUPETE-571 111
REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 001.                      ... RESPONDENT

             (BY SRI K.NAGESHWARAPPA, HCGP)
                                     2



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON
REGULAR BAIL IN CR.NO.146/2021 BEFORE GUNDLUPETE P.S.
BEARING S.C.NO.5019/2022 (OLD S.C.NO.57/2021) PENDING
BEFORE THE HONBLE ADDL. DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGAR, SITTING AT KOLLEGALA FOR THE
OFFENCES P/U/S. 120B, 302, 201 R/W 34 OF IPC AND ETC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.09.2023 AND THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                                 ORDER

Heard the learned counsel appearing for the petitioners

and the learned HCGP appearing for the State.

2. This is a successive bail petition. These petitioners

earlier have approached this Court in Crl.P.No.4822/2022 and

this Court rejected the said petition vide order dated

13.07.2022. The case of the prosecution is that the deceased

was having an illicit relationship with petitioner No.2/accused

No.3 and when the relationship strained, the deceased started

blackmailing petitioner No.2 stating that he would share the

photographs of their intimacy and repeatedly having sex with

petitioner No.2 and the deceased also shared the photographs to

CW10 and CW12 and hence, petitioner No.1 and petitioner No.2

being the husband and wife planned to eliminate the deceased

and called the deceased to their house and committed the

murder inflicting injury and thereafter the deceased was thrown

out from their house and thereafter the relatives who have seen

the deceased took him to the hospital but he succumbed to the

injuries on the next day morning. This Court taking into note of

the material on record, earlier, rejected the bail petition of these

petitioners in coming to the conclusion that there was a motive

for committing the murder since the deceased had shared the

photographs of having intimacy along with petitioner No.2 with

CW10 and CW12 and also seized the broken teeth which was

found in the house of these petitioners and apart from that the

hammer and stone also seized which were used to commit the

murder wherein found the blood stain and FSL report also

positive in this regard. Though the case is rest upon the

circumstantial evidence, this Court has taken note of the

material which discloses the sound circumstances against the

petitioners that these petitioners only secured him to their house

and inflicted the injury with an intention to eliminate him.

3. Now the counsel for the petitioners would

vehemently contend that the Trial Court already granted bail in

favour of accused No.2 and 4 and these petitioners are in

custody from more than two years four months and they are

illiterate. The counsel brought to notice of this Court by

producing two photographs stating that these petitioners are

having two children and they become orphans if the petitioners

continued in custody. The counsel also produced some of the

citations wherein this Court granted bail in favour of the accused

persons in a similar set of facts and prayed this Court to grant

the bail in favour of these petitioners.

4. The counsel in support of his arguments relied upon

the judgment reported in 2021 SCC ONLINE HP 657 in the

case of NASRIN vs STATE OF H.P. to invoke Section 437 of

Cr.P.C. wherein the accused is a women. The counsel also would

vehemently contend that the Court has to take note of the

circumstances under which the alleged incident was taken place

and hence, the petitioners may be enlarged on bail.

5. Per contra, the learned HCGP appearing for the State

would vehemently contend that there is no any changed

circumstances and this Court earlier while rejecting the bail

petition of these petitioners in detail dealt with the material on

record and rightly comes to the conclusion that even though the

case is rest upon the circumstantial evidence, there are sound

circumstances since the articles which have been used were

seized at the instance of these petitioners and even broken teeth

of the deceased was also found in the house of these petitioners

and seized articles were also stained with blood and FSL report is

also positive and hence, the petitioners have not made out any

ground to enlarge them on bail. The counsel also would

vehemently contend that PM report clearly discloses that there

were 14 injuries and the same were caused by these petitioners

and CW5, CW6 and CW7 are the recovery witnesses and they

have supported the case of the prosecution and also the counsel

would vehemently contend that CW8 and CW9 have identified

the accused and the witnesses who have been examined are not

completely turned hostile and hence, they are not entitled for

the bail.

6. In reply to the arguments of the learned HCGP, the

counsel for the petitioners would vehemently contend that

witnesses were examined and the same is the changed

circumstances.

7. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on record

it discloses that this is a successive bail petition and earlier this

Court rejected the bail petition of these petitioners taking into

note of the material on record since the deceased was called

upon to the house of these petitioners and thereafter inflicted

injury with the hammer and stone and though the body of the

deceased was found near the land of the witnesses, broken teeth

was found in the house of the petitioners and the motive for

committing the murder is that the deceased had shared his

photographs having intimacy with petitioner No.2 to CW10 and

CW12 and hence, there is a strong motive to eliminate the

deceased and also incident was taken place in the house of these

petitioners. It is also important to note that broken teeth was

also found in the house of these petitioners and also taken note

of the fact that the seized articles i.e., hammer and stone were

stained with blood and FSL report is also positive in this regard

and hence, this Court comes to the conclusion that there are

sound circumstances against the petitioners. No doubt, the bail

was granted in favour of accused Nos.2 and 4 and the allegation

against them is that they only helped them in shifting the injured

from the house of the petitioners to the place where they have

thrown the injured and hence, the Trial Court has granted the

bail in their favour. Merely because these petitioners are in

custody from last two years and four months is not a ground to

enlarge them on bail when heinous offence of murder was

charged against these petitioners.

8. The other ground urged by the petitioners that they

are having two small children and no one are there to take care

of them and the same cannot be a ground to enlarge the

petitioners on bail. The other contention that the some of the

witnesses were examined and the same is a changed

circumstances. The counsel for the State also brought to notice

of this Court that CW5, CW6 and CW7 who are the recovery

witnesses have also supported the case of the prosecution and

CW8 and CW9 who have been examined also identified the

accused persons and also having perused the PM report it

discloses that there were 14 injuries on the deceased. When

such being he case, this Court, even witnesses were examined,

cannot usurp the jurisdiction of the Trial Court by exercising the

power under Section 439 of Cr.P.C. and the Trial Court has to

appreciate the evidence available on record after the completion

of the trial and hence, no changed circumstances and not made

out any ground to grant the bail under successive bail petition as

contended by the counsel for the petitioners.

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

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SN