Karnataka High Court

Shri Shailesh S/O. Sambhaji Bodale vs The State Of Karnataka on 3 April, 2024

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                                                      NC: 2024:KHC-D:6106
                                                      CRL.A No. 100138 of 2024




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 3RD DAY OF APRIL, 2024

                                             BEFORE

                              THE HON'BLE MR JUSTICE ANIL B KATTI

                    CRIMINAL APPEAL NO. 100138 OF 2024 (U/S 14 A(2) of SC

                                           and ST ACT)

                   BETWEEN:
                   SHRI SHAILESH S/O SAMBHAJI BODALE,
                   AGE: 24 YEARS, OCC. AGENT OF SELLING OF OLD VEHICLE,
                   R/O. H. NO.225, SHINTRE COLONY, NIPPANI,
                   TQ: NIPPANI, DIST: BELAGAVI - 591237.
                                                                    ...APPELLANT
                   (BY SRI SHARAD V. MAGADUM & A.M.GUNDAWADE, ADVOCATES)
                   AND:

                   1.   THE STATE OF KARNATAKA
                        BY STATE PUBLIC PROSECUTOR
                        HIGH COURT OF KARNATAKA,
                        DHARWAD BENCH, AT DHARWAD,
                        THROUGH NIPPON TOWN POLICE STATION.

Digitally signed   2.   SMT. RENUKA W/O. RAHUL SUBHANGOL,
by SAROJA               AGE: 24 YEARS, OCC: HOUSEWIFE,
HANGARAKI               R/O. HITANI VILLAGE, TQ: HUKKERI,
Location: HIGH          DIST: BELAGAVI,
COURT OF
KARNATAKA               PRESENT ADDRESS
DHARWAD                 C/O. RAUT HOUSABAI COLONY NIPPANI,
BENCH                   TQ: NIPPANI, DIST: BELAGAVI-591237.
DHARWAD
                                                                ...RESPONDENTS
                   (BY SRI PRAVEENA Y. DEVAREDDIYAVAR, HCGP FOR R1;
                   SRI. S.P.KANDAGAL, ADVOCATE FOR R2)

                         THIS CRIMINAL APPEAL IS FILED U/S 14A(2) OF SC/ST (POA)
                   ACT 1989., SEEKING TO ENLARGE THE APPELLANT/ACCUSED NO.1
                   REGULAR ON BAIL IN SPECIAL CASE NO. 670/023 ARISING OUT OF
                   NIPANI TOWN PS CRIME NO.128/2023, ON THE FILE OF III ADDL.
                   DISTRICT AND SESSIONS JUDGE BELAGAVI, FOR THE ALLEGED
                   OFFENCES U/S 120B, 364, 302, 201 R/W 34 OF IPC AND SEC. 3(2)
                   (V) OF SC/ST P.A ACT 1989.
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                                     NC: 2024:KHC-D:6106
                                     CRL.A No. 100138 of 2024




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

                           JUDGMENT

Appellant/accused No.1 feeling aggrieved by the

order of Trial Court on the file of III Additional District and

Sessions Judge, Belagavi (Special Court to try the offences

under SC/ST (POA) Act) in Crl.Misc.No.1387/2023 dated

19.01.2024 in rejecting the bail application filed under

Section 439 of Cr.P.C. preferred this appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing the arguments of both sides and

on perusal of charge sheet materials, the following points

arise for consideration:

(i) Whether the impugned order of Trial Court under appeal in rejecting the bail application of accused No.1 filed under

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Section 439 of Cr.P.C. is perverse, capricious and legally not sustainable?

(ii) Whether interference of this Court is required?

5. On the strength of missing complaint filed by

Smt.Renuka Rahul Subhanagol, criminal law was set into

motion by registering the case in Nippani Town P.S. Crime

No.128/2023 for the offence under Section 363 of IPC. The

complaint allegations are to the effect that complainant

about 6 years back was in love with Rahul and married

him. Out of the wedlock they have got daughter by name

Rahi and started residing at Hitani village in Hukkeri taluk.

One Shailesh Sambhaji Bhodale used to come to the house

of complainant. When complainant questioned her

husband about visit of Shailesh Sambhaji Bhodale to the

house, she was told that due to his intervention Amar has

advanced loan of Rs.2,00,000/- to Shailesh Sambhaji

Bhodale and now Amar is demanding his money back and

in connection with the said transaction Shailesh Sambhaji

Bhodale is visiting to the house of complainant.

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5(a). On 02.01.2023 while complainant was in the

house at 12.00 noon, Shailesh Sambhaji Bhodale came to

the house on his Activa Honda Motorcycle and questioned

about the husband of complainant and she told that he has

gone out of the house. The said Shailesh Sambhaji

Bhodale again came back to the house of complainant at

5.00 p.m. and at that time also the husband of

complainant had not returned to the house. However,

Shailesh Sambhaji Bhodale was waiting for the husband of

complainant in front of the house of complainant. After 10-

15 minutes the husband of complainant came to the house

and after having lunch he went along with Shailesh

Sambhaji Bhodale on his assurance that he will pay money

to the husband of complainant. However, the husband of

complainant did not return to the home. At about 7.30

p.m., complainant went to the house of Uttam Kamate

friend of husband of complainant and enquired about her

husband. He told that the husband of complainant had

gone to Kolhapur, since Shailesh Sambhaji Bhodale has

taken him stating that he is going to give money, further

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he has received live location from WhatsApp which showed

that they were proceeded towards Gargooti and he did not

know what happened thereafter. It is on the next day at

7.00 a.m complainant filed the complaint. On these

allegations made in the complaint, the Investigating

Officer having completed investigation, filed the charge

sheet.

6. Learned High Court Government Pleader has

filed objections opposing the bail application contending

that the case of prosecution rests on circumstantial

evidence and there are sufficient material evidence against

the accused to connect with the charges levelled against

him. Accused No.1 and 2 have voluntarily surrendered

before the police and there is recovery of incriminating

materials at the instance of accused. If the accused is

released on bail, he may abscond from the process of law

and tamper with prosecution witnesses. Therefore, prayed

for dismissal of the appeal.

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7. Respondent No.2 though has appeared through

counsel, has not filed any separate objections, but made

oral submissions.

8. On perusal of charge sheet materials, it would

go to show that the entire case of prosecution rests on

circumstantial evidence. The incident of missing of

husband of complainant took place on 02.10.2023 at

about 5.00 p.m. Complainant filed missing complaint of

her husband on 03.10.2023 at 7.00 a.m. and accordingly

case was registered for the offence under Section 363 of

IPC. On the very same day at 11.30 complainant gave her

first further statement and second further statement is

also recorded on the same date and the third further

statement of complainant came to be recorded on

11.10.2023. Looking to the complaint allegations and the

charge sheet materials, it would go to show that the loan

transaction was between Amar of Vengurla and accused

No.1 Shailesh Sambhaji Bhodale. The husband of

complainant was alleged to be the middle person for

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Shailesh getting loan from Amar and the said Amar was

demanding back his money of Rs.2,00,000/- given as loan

to Shailesh Sambhaji Bhodale. The said material witness

Amar of Vengurla is not cited as charge sheet witness. The

complaint allegations would go to show that complainant

approached Uttam Kamate friend of her husband to

enquire as to where her husband has gone, since he did

not return to the home even after 7.30 p.m. and he is

cited as CW.16 in the charge sheet and his statement

came to be recorded on 18.10.2023. On perusal of the

statement of this material witness of prosecution CW.16, it

would go to show that himself and his brother Vijay

Kamate, Jayasingh Tikale and Ashraf Mulla on the basis of

live location received by him went in search of Rahul in

Gargooti and then Budargad fort where they found to have

seen blood stains on the road, since it was isolated place

they came back to Nippani. On the next day morning they

went to the said place and found the blood stains,

chappals, further they found the dead body of Rahul

having injuries and dead body was taken for postmortem

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examination by Budargad police. If this statement of

CW.16 Uttam Kamate is perused in view of the fact that

accused No.1 and 2 have surrendered before Avinash

Kavatel, Inspector on 03.10.2023 at 21.33 hours and they

have been arrested by Laxmipuri Police Station,

Maharashtra on 03.10.2023 itself, then it is evident that

whatever he has stated in his statement is based on the

information given by the police which they have received

after the arrest of accused. The statement of family

members and other witnesses would speak about they

having come to know about the death of husband of

complainant Rahul. Another material witness of

prosecution is CW.22-Nagesh Shamrao Patil. On perusal of

his statement, it would go to show that both the accused

were there at poultry of Arjun Nagar and on enquiry both

of them made extra judicial confession before him that

they have committed the murder of Rahul, since he was

repeatedly asking the money and to repay the loan availed

from Amar. This statement of CW.22- Nagesh Shamrao

Patil came to be recorded on 14.11.2023 after more than

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a month. The statement of CW.16-Uttam Vishnu Kamate,

CW.17-Vijay Vishnu Kamate, CW.18-Ashraf Dastagir Mulla

and CW.19-Jayasingh Shankar Tikale would go to show

that they went in search of Rahul on the basis of live

location, whereas the complaint allegations itself would go

to show that the live location was stopped on the night of

02.10.2023 itself. Therefore, they having found the dead

body and the articles as stated in their statement based on

live location is very much doubtful.

9. Accused No.1 and 2 having shown the spot and

preparation of panchanama is alleged to be based on the

voluntary statement said to be given by accused No.1 and

2 before the Investigating Officer on 04.10.2023. The

Investigating Officer filed requisitions dated 06.11.2023

for giving accused No.1 and 2 to police custody. The Trial

Court has granted the police custody of accused No.1 and

2 and they have showed the places of incident and

accordingly panchanama was prepared. Learned counsel

for accused No.1 in support of his contention that after

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expiry of first 15 days from the date of arrest of accused

further police remand cannot be obtained, relied on the

judgment of Hon'ble Apex Court in Budh Singh vs. State

of Punjab reported in 2000 (9) SCC 266 wherein it has

been observed and held that the order of police remand

for further period of 7 days after the expiry of first 15 days

period is invalid. On the same point, another latest

judgment of Hon'ble Apex Court is relied in Central

Bureau of Investigation vs. Vikas Mishra Alias

Vikash Mishra reported in (2023) 6 SCC 49, wherein

also it has been held that remand to police custody after

elapse of first 15 days from the date of arrest is not

permissible under law.

10. In the present case, admittedly the case of

prosecution rests on circumstantial evidence based on last

seen theory, extra judicial confession said to have been

made before CW.22- Nagesh Shamrao Patil and lastly

showing of very same places by accused No.1 and 2

pursuant to their voluntary statement. Whether the said

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circumstances relied by the prosecution would be sufficient

to prove the guilt against the accused or not is a matter of

trial. Accused No.1 is in judicial custody since from the

date of his arrest on 03.10.2023. It is not in dispute that

accused No.1 is the permanent resident of the address

given in the cause title. The investigation in this case has

already been completed and charge sheet has been filed.

The presence of accused No.1 before the Court can be

secured through the process of law. Therefore, under

these circumstances, accused No.1 is entitled for bail.

Consequently, proceed to pass the following:

ORDER

The criminal appeal filed by appellant/accused No.1 is

hereby allowed.

Accused No.1 is ordered to be released on bail on his

executing personal bond and surety bond for a sum of

Rs.1,00,000/- with one surety for the likesum amount to

the satisfaction of the Trial Court, subject to following

conditions:

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(i) Accused No.1 shall produce address proof

document of himself and that of his surety subject

to police verification.

(ii) Accused No.1 shall keep informing the Trial Court

regarding change of address, if any, so as to

secure his presence before the Court during trial.