Karnataka High Court

Sri. Chandrashekar @ Chandu @ ... vs State By on 29 September, 2023

Bench: Shivashankar Amarannavar

                                                    -1-
                                                                NC: 2023:KHC:35380
                                                            CRL.A No. 1564 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 29TH DAY OF SEPTEMBER, 2023

                                                BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL NO. 1564 OF 2023
                      BETWEEN:

                      1.    SRI. CHANDRASHEKAR
                            @ CHANDU @ CHANDAN,
                            S/O SADASHIVA,
                            AGED ABOUT 25 YEARS,
                            R/AT NO. 10, VIJAYA BANK LAYOUT,
                            NEAR INDIAN PETROL BUNK,
                            DEVARACHIKKANAHALLI,
                            BENGALURU CITY - 560 068.

                      2.    PRASAD VRK @ SUTHIGE,
                            S/O VENKATASWAMY,
                            AGED ABOUT 25 YEARS,
                            R/AT NEAR DODDAMMA TEMPLE,
                            DEVAASANDRA ARAGADDE,
                            PANCHAYATH JIGANI HOBLI,
                            ANEKAL,
Digitally signed by
                            BENGALURU DISTRICT - 560 105.
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
                            (PRESENTLY ARE IN JC)
COURT OF                                                             ...APPELLANTS
KARNATAKA
                      (BY SRI. HARI PRASAD N., ADVOCATE)
                      AND:

                      1.    STATE BY
                            JAYANAGARA POLICE STATION,
                            REPRESENTED BY
                            STATE PUBLIC PROSECUTOR,
                            HIGH COURT BUILDING,
                            BENGALURU - 560 001.
                                 -2-
                                               NC: 2023:KHC:35380
                                           CRL.A No. 1564 of 2023




2.   SRI. N. MOHAN,
     S/O NAGARAJ T.,
     AGED ABOUT 52 YEARS,
     R/AT NO.9/1, 15TH CROSS,
     LAKKASANDRA,
     BENGALURU - 560 030.
                                         ...RESPONDENTS
(BY SRI. M. DIVAKAR MADDUR , HCGP FOR R1;
    R2 SERVED AND UNREPRESENTED)

     THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT
PRAYING TO SET ASIDE THE ORDER DATED 17.04.2022
PASSED BY THE HONBLE LXX ADDL.CITY CIVIL AND SESSIONS
JUDGE AND SPL.JUDGE, AT BENGALURU IN SPL.CASE
NO.1662/2021 (CR.NO.141/2021) AND ENLARGE THEM ON
BAIL FOR THE OFFENCE P/U/S 35, 143, 144, 147, 148, 149,
201, 212, 120(b), 302 OF IPC AND UNDER SEC.3(2)(v) OF
SC/ST (POA) ACT AND UNDER SEC.25-1(B)(b) OF ARMS ACT
ON THE FILE OF JAYANAGAR POLICE NOW PENDING BEFORE
THE HONBLE LXX ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPL.JUDGE.

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

                          JUDGMENT

Appellants/accused Nos. 4 and 6 have filed this

appeal seeking setting aside the order dated 10.08.2023

passed by LXX Additional City Civil and Sessions Judge and

Special Judge, Bengaluru, in Spl.C.No.1662/2021

whereunder the bail application of appellants/accused Nos.

4 and 6 sought in respect of Crime No.141/2021 of

Jayanagar Police Station registered for the offences

NC: 2023:KHC:35380 CRL.A No. 1564 of 2023

punishable under Sections 35, 143, 144, 147, 148, 201,

212, 120(B), 302 R/W 149 of IPC, Section 3(2)(v) of

SC/ST (POA) Act, 1989 and Section 25(1)(B)(b) of the

ARMS Act, 1959 came to be rejected.

2. Heard the arguments of learned counsel for

appellants/accused Nos. 4 and 6 and learned High Court

Government Pleader for respondent No.1-State. Inspite of

service of notice respondent No.2 remained absent and

unrepresented.

3. Whereas the case of the prosecution is that on

02.07.2021 at about 11.45a.m. when deceased Madan

was getting into his car at Banashankari Metro Station, the

accused persons being the members of an unlawful

assembly holding deadly weapons in their hands in

furtherance of their common object conspired to kill the

deceased, assaulted the deceased in the backdrop of prior

enmity caused the death of the deceased Madan.

NC: 2023:KHC:35380 CRL.A No. 1564 of 2023

4. The investigating officer after completion of the

investigation has filed charge sheet against the accused

persons for the aforesaid offences.

5. Learned counsel for the appellants/accused Nos.4

and 6 would contend that the brother of the deceased has

filed complaint against the unknown persons. Accused

Nos. 1 to 3, 5, 7 to 16 have been granted bail. Accused

No.7 who is similarly placed to that these

appellants/accused Nos.4 and 6 has been granted bail by

this Court in Crl.Appeal No.2044/2020 and therefore,

appellants/accused Nos.4 and 6 are entitled for grant of

bail on parity. It is the further submission that as per

the case of the prosecution CW-2 to 4 are eyewitnesses to

the incident and their statements came to be recorded on

02.07.2021 and they have not named the accused persons

and stated that their heads were covered with helmet. It

is further submission that said CW-2 to 4 in their further

statement recorded on 05.07.2021 have identified accused

Nos.1 to 7 and their identification in the police station is

NC: 2023:KHC:35380 CRL.A No. 1564 of 2023

illegal and it is not possible for them to identify these

persons as their face and heads were covered with the

helmet. It is further submits that appellants/accused

Nos.4 and 6 were in judicial custody since 05.07.2021 and

the charge sheet is filed they are not required for custodial

interrogation. With this he prayed to allow the appeal and

grant bail to appellants/accused Nos.4 and 6.

6. The learned High Court Government Pleader

contends that accused Nos.1 and 2 conspired to kill the

deceased and they have aided the other accused to

commit the murder of deceased. Accused Nos.2, 4 and 7

were also with the deceased on the date of committing his

murder. CW-2 to 4 are the eyewitnesses they have

identified these appellants and other accused in the police

station. There are specific overtacts alleged against these

appellants/accused Nos. 4 and 6 assaulting the deceased

on vital parts. Considering all these aspects the learned

Special Judge has passed the impugned order which does

NC: 2023:KHC:35380 CRL.A No. 1564 of 2023

not call for any interference. Therefore, he prays for

dismissal of the appeal.

7. Having heard the learned counsel for the

appellant and learned High Court Government Pleader this

court has gone through the impugned order and charge

sheet records.

8. The enmity of the deceased was with accused

Nos.1 and 2. It is alleged that these appellants/accused

Nos. 4 and 6 and other accused persons at the instance of

accused No.1 assaulted him with deadly weapons and

committed his murder. As per the charge sheet CW 2 to 4

are eye witnesses to the incident. Their statements are

recorded on 02.07.2021 and 05.07.2021. In their

statements recorded on 02.07.2021 they have stated

involvement of seven accused persons covered their heads

with helmet. In their statements recorded on 05.07.2021

they have identified these accused Nos.1 to 7 in the police

station. Whether CW-2 to 4 who have seen seven persons

assaulting the deceased who were wearing helmet

NC: 2023:KHC:35380 CRL.A No. 1564 of 2023

covering head, face and they could identify the accused

persons as they have not seen the face of the accused

persons is to be decided at trial. Therefore their

identification is a matter of trial as no test identification

parade has been conducted. Appellant-accused No.7 who

is similarly placed to that of these appellants/accused Nos.

4 and 6 had been granted bail by this Court and therefore

these appellants/accused Nos. 4 and 6 are entitled for

grant of bail on the ground of parity. As Charge sheet is

filed, appellants/accused Nos.4 and 6 are not required for

custodial interrogation. Without considering all these

aspects, the learned Sessions Judge has passed the

impugned order which requires interference by this court.

9. In the facts and circumstances of the case the

appellants-accused Nos. 4 and 6 have made out grounds

for setting aside the impugned order and granting bail

subject to terms and conditions. Hence, I proceed to pass

the following:

NC: 2023:KHC:35380 CRL.A No. 1564 of 2023

ORDER

Appeal is allowed. The impugned order dated

10.08.2023 passed in Spl.C.No.1662/21 by LXX Additional

City Civil and Sessions Judge and Special Judge,

Bengaluru, is set aside. Consequently, the appellant-

accused Nos. 4 and 6 are granted bail and they are

ordered to be released on bail in Crime No.141/2021

Jayanagara Police Station, subject to following conditions:

(1) Appellants -Accused Nos. 4 and 6 shall execute a

personal bond in a sum of Rs.1,00,000/- each with

one surety for the likesum to the satisfaction of

the trial court.

(2) Appellants -Accused Nos. 4 and 6 shall not

threaten the complainant or tamper the

prosecution witnesses.

(3) Appellants -Accused Nos. 4 and 6 shall appear

before the trial court on all the dates of hearing