Karnataka High Court

Stephen Timothy vs State By Dj Halli Police Station on 6 August, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                              NC: 2024:KHC:31316
                                                           CRL.A No. 787 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 6TH DAY OF AUGUST, 2024

                                             BEFORE

                          THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ

                               CRIMINAL APPEAL NO. 787 OF 2024

                   BETWEEN:

                   1.    STEPHEN TIMOTHY
                         SON OF ANTHONI DAS
                         AGED ABOUT 21 YEARS,
                         RESIDING AT NO.M2, 8TH B CROSS,
                         GANDHINAGAR, K.G.HALLI,
                         BANGALORE - 560045.
                                                                     ...APPELLANT

                                (BY SRI NAGARAJA K.R., ADVOCATE)
                   AND:

                   1.    STATE BY
                         D.J. HALLI POLICE STATION
Digitally signed         REPRESENTED BY SPP
by DEVIKA M              HIGH COURT BUILDING
Location: HIGH           BANGALORE - 560001.
COURT OF
KARNATAKA
                   2.    SHIVAKUMAR
                         SON OF JAYARAM
                         AGED ABOUT 27 YEARS
                         R/AN O 106, 6TH CROSS,
                         SAMADANAGARA K.G.HALLI,
                         BANGALORE - 560044.
                                                                 ...RESPONDENTS

                                (BY SRI K. RAHUL RAI, HCGP FOR R1;
                                           R2 IS SERVED)
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                                              NC: 2024:KHC:31316
                                         CRL.A No. 787 of 2024




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A)(2) OF SC/ST (POA) ACT, PRAYING TO SET ASIDE THE
ORDER DATED 25.03.2024 IN SPL.C.NO.1697/2021 ON THE
FILE OF THE HONBLE LXX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE AT BENGALURU (CCH-
71). AND TO ENLARGE HIM ON BAIL IN SPL.C.NO.1697/2021
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 307, 302,
109, 120-B, 201 R/W SECTION 149 OF IPC AND SECTION
25(1B)(b) OF ARMS ACT AND SECTION 3(2)(v)(va) OF SC/ST
(POA) ACT UNDER CR.NO.177/2021 OF DEVARAJEEVANAHALLI
POLICE STATION, ON THE FILE OF THE HON'BLE LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE AT BENGALURU (CCH-71).


    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:      HON'BLE MR JUSTICE MOHAMMAD NAWAZ



                      ORAL JUDGMENT

This appeal is preferred by accused No.8 in

Spl.C.No.1697/2021 on the file of the Court of LXX

Additional City Civil and Sessions Judge and Special Judge,

at Bengaluru.

2. The learned Sessions Judge vide order dated

25.03.2024 has rejected the bail petition filed by accused

Nos.7 and 8 under Section 439 of Cr.P.C. The

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appellant/accused No.8 is praying to set-aside the said

order and to enlarge him on bail.

3. Heard the learned counsel for the appellant and

learned High Court Government Pleader for respondent-

State and perused the material on record.

4. The respondent No.2/defacto complainant has

been served but unrepresented.

5. It is the case of the prosecution that the

deceased Krishna Murthy @ Kutty and his 2nd wife that is

accused No.2 were having some dispute. Therefore, she

was residing in her parental home. When the deceased

was in parappana agrahara jail in connection with some

other case, he got acquainted with accused No.1 who was

also lodged in the said jail. Some dispute arose between

accused No.1 and the deceased. Coming to know about

the same, accused No.2 started contacting accused No.1

and she informed about the un-cordial relationship

between herself and the deceased. She conspired with the

accused No.1 to commit the murder of her husband and in

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furtherance of the conspiracy hatched between accused

Nos.1 to 3 and accused Nos.4 to 8, on 02.07.2021 at

about 9.30-10.30 p.m., all the accused formed an unlawful

assembly armed with deadly weapons like chopper and

dagger and assaulted the deceased with the said weapons,

infront of Dr.B.R.Ambedkar hospital, Shampur Main Road

and committed his murder.

6. The present appellant along with accused No.7

had preferred Crl.A.No.1893/2022 earlier, against the

order passed by the Trial Court rejecting their bail petition.

The said appeal came to be dismissed vide order dated

14.03.2023.

7. This Court while dismissing the above appeal,

observed that CW2 and CW5 being the material witnesses,

the appellants threatening or influencing them in the event

of their release cannot be ruled out.

8. The learned counsel for the appellant would

contend that before the Trial Court, all the material

witnesses including the eye witness CW2 as well as the

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complainant i.e., brother of the deceased have been

examined and none of them have supported the case of

prosecution. He contended that CW5 as well as accused

No.1 are no more. The appellant is languishing in judicial

custody since 07.07.2021, for more than three years and

submits that further detention of the appellant is not

required as the material witnesses are already examined

and none of them have supported the case of prosecution.

Therefore, sought to allow the appeal and enlarge the

appellant on bail.

9. The learned HCGP on the other hand opposed

the prayer made by the appellant's counsel contending

that there are 51 witnesses cited in the charge sheet and

the learned Sessions Judge has observed while rejecting

the bail petition that CW7 to CW27, other material and

independent witnesses are yet to be examined. He

contended that the allegations are very serious in nature

and therefore, the appellant is not entitled for the relief he

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has sought in the appeal. Accordingly, he has sought to

dismiss the appeal.

10. The learned counsel for the appellant has made

available the copies of the depositions of PW1 to PW12.

PW1 is the complainant/respondent No.2. He is the

brother of the deceased. He has turned hostile and not

supported the case of prosecution. Similarly, PW2 to PW12

have also turned hostile and not supported the case of

prosecution. According to prosecution, CW2 and CW5 are

the eye witnesses. CW2 has been already examined as

PW2 and CW5 is said to be no more. Other witnesses are

said to be panch witnesses and official witnesses.

11. It is submitted that, in this case accused No.1 is

no more. Accused Nos.2 and 3 are on bail. Learned

Sessions Judge taking consideration the submission made

by the learned S.P.P that the prosecution witnesses have

been won over and accused No.2 was enlarged on bail

since she was having minor children, has rejected the

petition. Admittedly, the appellant is in judicial custody,

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therefore it cannot be said that the witnesses examined

before the Court were won over by him.

12. The appellant is in custody from 07.07.2021

which is more than 3 years . He has undertaken to furnish

sufficient surety to ensure his regular presence before the

Trial Court. Since the complainant and eye witnesses are

already examined, question of tampering the said

witnesses does not arise. Hence, by imposing stringent

conditions, the relief sought by the appellant can be

granted. Accordingly, the following:

ORDER

1. The appeal is allowed.

2. The order dated 25.03.2024 passed by the LXX Additional City Civil and Sessions Judge and Special Judge, at Bengaluru in Spl.C.No.1697/2021 is hereby set aside.

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3. The appellant/accused Nos.8 in this case is ordered to be released subject to following conditions: