Karnataka High Court
Sri. Shiva @ Shivu @ Shivaraju T.D vs State By on 25 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:16731
CRL.P No. 2487 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO.2487 OF 2024 (439)
BETWEEN:
1. SRI. SHIVA @ SHIVU @ SHIVARAJU T.D.
S/O. DEVARAJU,
AGED ABOUT 31 YEARS,
R/AT THOPANAHALLI VILLAGE,
KASABA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT-571428.
...PETITIONER
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
AND:
1. STATE BY
MADDUR POLICE STATION,
Digitally signed REPRESENTED BY STATE PUBLIC PROSECUTOR,
by DEVIKA M HIGH COURT BUILDINGS,
Location: HIGH BENGALURU-560 001.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI M. DIVAKAR MADDUR, HCGP;
SRI TEJAS N FOR DEFACTO COMPLAINANT)
THIS CRL.P IS FILED UNDER SECTION 439 OF CR.PC
PRAYING THIS COURT TO ENLARGE THE PETITIONER ON BAIL
IN SPL. C.C.NO.65/2019 (CR.NO.444/2018) ON THE FILE OF IV
ADDL. DISTRICT AND SESSIONS JUDGE, MANDYA, REGISTERED
BY THE MADDUR POLICE STATION, FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 143, 146, 148, 341, 307, 302,
120B, 114 R/W. SECTION 149 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC:16731
CRL.P No. 2487 of 2024
ORDER
Heard the learned counsel for the petitioner, the learned
High Court Government Pleader appearing for the respondent-
State and the learned counsel Sri Tejas N, who assisted the
prosecution in the matter in view of the application filed in
I.A.No.1/2024.
2. Admittedly, this petitioner had earlier approached
this Court and this Court had rejected the same. Once again
successive bail petition was also filed in Crl.P.No.482/2021 and
this Court while rejecting the said petition taken note of the
earlier Crl.P.No.4807/2019 and also the judgments, which were
relied upon by the learned counsel for languishing the accused
for a longer period in jail. This Court also taken note of the
specific overt-act alleged against this petitioner. This Court also
taken note that there are ten eye-witnesses to the incident and
the petitioner inflicted injury to the victim with deadly weapon
knife and there were 25 multiple injuries and as a result, he
succumbed to the injuries.
3. Now, the learned counsel for the petitioner in a
successive bail petition contend that out of ten eye-witnesses,
P.W.5 and P.W.6 have not supported the case of the
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prosecution. The learned counsel submits that this Court
granted bail in favour of accused No.3 in Crl.P.No.12832/2023
vide order dated 20.12.2023 and produced the order copy and
also deposition of P.W.5 and P.W.6. The learned counsel
submits that this petitioner is in custody from last 4-5 years and
some of the witnesses have been examined and some of the
eye-witnesses have given up before the Trial Court and hence
the petitioner may be enlarged on bail.
4. Per contra, the learned High Court Government
Pleader appearing for the respondent-State submits that out of
ten eye-witnesses, P.W.1 to P.W.6 are the eye-witnesses, who
have been examined before the Trial Court. The learned counsel
submits that P.W.1 to P.W.4 have supported the case of the
prosecution. The learned counsel submits that even though
P.W.5 and P.W.6 are examined, they turned hostile, but in the
cross-examination of these two witnesses with regard to overt-
act is also elicited from the mouth of the witnesses.
5. The learned counsel Sri Tejas N, who filed
application for assisting the prosecution by filing the application
brought to the notice of this Court that knife and blood stained
clothes were seized at the instance of this petitioner and vehicle
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which was used for committing the murder were also seized at
the instance of the petitioner.
6. Having heard the learned counsel for the petitioner,
the learned High Court Government Pleader appearing for the
respondent-State and the learned counsel, who assisted the
prosecution and also taking note of the order passed by this
Court in Crl.P.No.482/2021 dated 22.02.2022, the petition was
filed before the Apex Court against the order dated 22.02.2022.
The Apex Court while considering the order passed by this Court
observed that although the petitioner is in custody for more than
three years, but taking into account the nature of injuries on the
body of the deceased and the role assigned to the petitioner,
and other material on record, held we are not inclined to grant
post-arrest bail at this stage. It is also observed that it is
appropriate to direct the respondent prosecution to get the
statement of the eye-witnesses be recorded in the first instance
on priority basis at the earliest. However, if no progress is being
taken in the pending trial, the petitioner will be at liberty to file
fresh application seeking bail before the Trial Court and the SLP
was disposed of.
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7. Having considered the order passed by the Apex
Court as well as the material on record, it is clear that already
the witnesses, particularly eye-witnesses P.W.1 to P.W.6 have
been examined before the Court. No doubt, this Court granted
bail in favour of accused No.3 in Crl.P.No.12832/2023 and while
granting the relief of bail, this Court taken note of the
submission made by the learned counsel for the petitioner that
P.W.5 and P.W.6 have turned hostile and not supported the case
of the prosecution and nothing is mentioned in the order with
regard to supporting of P.W.1 to P.W.4 before the Court and
also taken note of granting of relief in favour of accused No.2
and accused No.7 and granted the bail. This Court also taken
note of granting of bail in favour of accused Nos.2 and 7 in
Crl.P.No.482/2021 and comes to the conclusion that the said
order will not come to the aid of this petitioner, since overt-act
allegation is made against this petitioner. When such being the
case, the order passed by this Court in Crl.P.No.12832/2023
cannot be considered for extending the relief and granting of
relief of bail is a discretionary power and the Court has to take
note of the material on record. It is important to note that
P.W.1 to P.W.4 have supported the case of the prosecution and
in an ingenious method, the learned counsel for the petitioner
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has not placed the deposition of P.W.1 to P.W.4 before the Court
and only produced the deposition of P.W.5 and P.W.6. Even on
verification of evidence of P.W.5 and P.W.6, though they turned
hostile in chief examination, they were cross-examined by the
learned Public Prosecutor and with regard to overt-act of each of
the accused persons were spoken by the hostile witnesses and
the said fact is not brought to the Court notice while granting
relief in Crl.P.No.12832/2023 in respect of other accused. The
material is clear that this petitioner inflicted injury to the victim
with knife. The knife and blood stained clothes were also
seized. Apart from that, the vehicle was also seized at the
instance of this petitioner. When the eye-witnesses P.W.1 to
P.W.4 have supported the case of the petitioner and even if two
witnesses have turned hostile in chief-examination and in the
cross-examination they have supported the case of the
prosecution, the same has to be appreciated by the Trial Court
and not this Court by sitting under Section 439 of Cr.P.C. and
this Court cannot usurp the jurisdiction of the Trial Court for
appreciation of the evidence.
8. Having considered the material available on record,
the learned counsel Sri Tejas, who assisted the prosecution
brought to the notice of this Court that he had produced the
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deposition of P.W.1 to P.W.4 and the same discloses that they
have supported the case of the prosecution. When such
material is available before the Court, the petitioner is in
custody for more than 4-5 years, cannot be a ground to enlarge
the petitioner on bail in an heinous crime of murder. Similar
ground was urged before the Apex Court and the Apex Court
taken note of the said fact into consideration, particularly the
nature of injuries on the body of the deceased and the role
assigned to the petitioner and other material on record and
hence, I do not find any changed circumstances to exercise the
discretion in favour of the petitioner and the petitioner has not
made out any ground to enlarge him on bail.
9. In view of the discussions made above, I pass the
following:
ORDER
The petition is rejected. The Trial Court is directed to
dispose of the matter expeditiously.
Sd/-
JUDGE
MD
