Karnataka High Court
A V Sharath Kumar vs State By Karnataka on 12 January, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1998 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1998 OF 2023
BETWEEN:
A V SHARATH KUMAR
S/O VENKATACHALAPATHY
AGED ABOUT 28 YEARS
R/AT NO. 02, ANAKANUR VILLAGE
NEAR CHIKKABALLAPURA PRISON
CHIKKABALLAPURA TALUK AND DISTRICT
...APPELLANT
(BY SRI K.N.PHANINDRA, SENIOR COUNSEL FOR
SRI DHARSHAVARDHAN.B.G, ADVOCATE)
AND:
1. STATE BY KARNATAKA
BY POLICE INSPECTOR,
BANASHANKARI P S
BENGALURU CITY-560 050.
Digitally signed by
LAKSHMINARAYANA REPRESENTED BY STATE PUBLIC PROSECUTOR
MURTHY RAJASHRI
Location: HIGH HIGH COURT BUILDING
COURT OF
KARNATAKA BENGALURU - 560 001
2. MR BHEEMASEN GHATAGI
POLICE SUB INSPECTOR
CUBBON PARK P S
BENGALURU - 560 001 .
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU -560 001
3. HANUMANTHARAJU S
S/O SIDDALINGAPPA
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CRL.A No. 1998 of 2023
AGED ABOUT 57 YEARS
R/AT NO 462, 4TH CROSS
8TH MAIN, NEAR MARAMMA TEMPLE
HARINAGAR, KOTHANOOR MAIN ROAD
ANJANAPURA BENGALURU.
...RESPONDENTS
(BY SRI M.DIVAKAR MADDUR, HCGP FOR R1 AND R2;
SRI ROSHAN.M.C, ADVOCATE FOR R3)
THIS CRL.A. IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT,
2015 PRAYING TO SET ASIDE THE ORDER DATED 14.09.2023
PASSED IN CRL.MISC.No.8454/2023, ON THE FILE OF THE
LEARNED LXX ADDITIOINAL CITY CIVIL AND SESSIONS JUDGE,
SPECIAL JUDGE, BENGALURU (CCH-71), PENDING IN
SPL.C.NO.547/2023 ARISING OUT OF CR.NO.51/2023
REGISTERED BY THE BANASHANKARI POLICE STATION,
BENGALURU FOR OFFENCE P/U/S 302, 201, 343, 364, 307, 504,
506 R/W 149 OF IPC AND SE.3(2)(V), 3(1)(e) OF THE SC/ST
(POA) ACT AND TO PASS AN ORDER TO ENLARGE THE
APPELLANT ON BAIL THEREIN ON SUCH CONDITIONS THAT MAY
BE IMPOSED BY THIS HON'BLE COURT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the appellant - accused No.1
praying to set-aside the order dated 14.09.2023 passed in
Crl.Misc.No.8454/2023 by the LXX Additional City Civil and
Sessions Judge and Special Judge, Bengaluru,
whereunder, the bail petition sought by this appellant -
accused No.1 in respect of Crime No.51/2023 of
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Banashankari Police Station registered for the offences
under Sections 302, 201, 364, 343, 307, 504, 506 r/w
Section 149 of the Indian Penal Code, 1860 (for short
hereinafter referred to as 'IPC') and Sections 3(2)(v) and
3(1)e) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short hereinafter
referred to as "the SC/ST Act"), came to be rejected.
2. Heard learned senior counsel for the appellant-
accused No.1 and learned High Court Government Pleader
for respondent No.1 - State.
3. Gist of the prosecution case is that; on 22.12.2022,
the A.C.P of Cubbon Park Sub-Division received anonymous
complaint with pen-drive which was registered under
application No.Q1PS/PET/GNL-249/2002, who inturn
forwarded the said complaint to P.S.I. of Cubbon Park Police
Station to ascertain the truth of the complaint. Accordingly,
the P.S.I of Cubbon Park Police Station collected the
information and lodged a complaint stating that the
deceased Sri.H.Sharath Kumar was a resident of
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Konanakunte village and had borrowed loan from various
persons and did not repay the same. Accordingly, the
persons who had given the loan to the deceased
Sri.H.Sharath Kumar entrusted the work of recovery of loan
to accused No.3, who in turn entrusted the recovery of loan
to accused Nos.1, 2, 5 and 8. Accused Nos.1, 2, 5 and 8
kidnapped the deceased Sri.H.Sharath Kumar in the car
belonging to accused No.10 with the assistance of accused
Nos.4 and 6 and he was wrongfully confined in the farm
house belonging to accused No.8, for 6 to 7 days and
during the said period, he was brutally assaulted and
caused to death. Thereafter, the accused persons shifted
the dead body of the deceased in the car belonging to
accused No.9 with the help of accused Nos. 4 and 7 and
threw the same in Charmadi Ghat with an intention to cause
disappearance of the evidence.
4. Charge sheet came to be filed against 12 accused
persons for the offences under Sections 302, 201, 343, 364,
307, 504 and 506 r/w Section 149 of IPC and Sections
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3(2)(v) and 3(1)(e) of the SC/ST Act. The appellant
accused No.1 came to be arrested on 26.12.2022 and he is
in judicial custody. The appellant-accused No.1 filed
Criminal Misc.No.8454/2023 seeking bail and the same
came to be rejected by the impugned order. The said order
has been challenged in this appeal.
5. Learned senior counsel for the appellant - accused
No.1 would contend that the body of the deceased is not
recovered and only a plastic cover has been recovered
which does not contain any residue of the dead body like
bones, clothes or any other materials to show that the dead
body was decomposed. He further submits that the accused
Nos.2, 3, 8 and 12 have been granted bail and therefore,
the appellant - accused No.1 is entitled for bail on the
ground of parity. The deceased Sri.H.Sharath Kumar found
missing and inspite of that the parents have not chosen to
file any missing complaint. There are 78 witnesses cited in
the charge sheet. Among them CWs.22 and 23 are cited as
the eye witnesses. Even those witnesses have not stated
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regarding the death of the deceased, but they have only
stated the assault made by the accused persons. Learned
senior counsel submits that there are no criminal
antecedents against this appellant - accused No.1. The
case of the prosecution is based on the circumstantial
evidence. He further submits that in the absence of
recovery of the dead body, the allegation of the offence
under Section 302 of IPC would not be established. Without
considering all these aspects, the learned Sessions / Special
Judge has passed the impugned order which requires
interference by this Court.
6. Per contra, learned High Court Government Pleader for
the respondent No.1- State would contend that this
appellant-accused No.1 abducted the deceased and
assaulted him and the deceased escaped from the hands of
the appellant-accused No.1. Thereafter, once again, the
appellant-accused No.1 abducted the deceased, tied his
hands and legs and assaulted the deceased and committed
murder of the deceased. The accused persons disposed of
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the dead body by throwing into the valley. He further
submits that CWs.22 and 23 are the eye witnesses to the
assault made by the accused persons and their statement
was also recorded under Section 164 of Cr.P.C. There is
recovery of the vehicle and the other articles used for
commission of the offences. The charge sheet material
would establish prima facie case against the appellant -
accused No.1 for the offences alleged against him. With
this, he prayed for dismissal of the appeal.
7. Having heard learned counsel for the parties, this
Court has perused the records.
8. Father of the deceased Sri.H.Sharath Kumar has not
filed any missing complaint even though the deceased was
found missing during the last week of March, 2022. The
F.I.R came to be registered on an anonymous letter
received by the Cubbon Park Police for the offence under
Section 302 of IPC, as there is no confirmation about the
death of Sri.H.Sharath Kumar. Subsequently, the case has
been transferred to Banashankari Police Station. There is
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no recovery of the dead body of the deceased. Though the
police were able to recover the plastic cover, but it does not
contain any residue of the dead body like bones, clothes or
any other material to show that the dead body was
decomposed. The said plastic cover was recovered which is
said to be used for bundling the dead body. The police
opined that the dead body of the deceased might have been
decomposed and destroyed due to natural calamities. On
the other hand, the appellant - accused No.1 said to have
informed the father of the deceased that the deceased was
escaped from them. CWs.22 and 23 have only stated
regarding the assault made by the accused persons on the
deceased. What is the cause of death of the deceased is
not available in the prosecution report as the dead body is
not covered. The entire case of the prosecution is based on
the circumstantial evidence and the last seen theory.
9. The accusation against this appellant - accused No.1
is that he has assaulted the deceased and committed his
murder. In the absence of tracing of the dead body, the
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said allegation is to be established based on the
circumstantial evidence at the trial. As the charge sheet is
filed, the appellant - accused No.1 is not required for the
custodial interrogation. Without considering all these
aspects, the learned Sessions / Special Judge has passed
the impugned order, which requires interference by this
Court. The appellant - accused No.1 has made out
grounds for setting-aside the impugned order and grant of
bail. In the result, the following;
ORDER
The appeal is allowed. The impugned order dated
14.09.2023 passed in Crl.Misc.No.8454/2023 by the LXX
Additional City Civil and Sessions Judge and Special Judge,
Bengaluru is set-aside. The appellant - accused No.1 is
granted bail in Crime No.51/2023 (Special
C.C.No.547/2023), of Banashankari Police Station, subject
to the following conditions;
(i) The appellant-accused No.1 shall execute a
personal bond for a sum of Rs.1,00,000/-
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(Rupees One Lakh only) with one surety for the
likesum to the satisfaction of the Trial Court.
(ii) The appellant-accused No.1 shall not tamper
the prosecution witnesses.
(iii) The appellant-accused No.1 shall attend the
Court on all the dates of hearing unless
exempted and co-operate for the speedy trial
of the case.
(iv) The appellant-accused No.1 shall not involve in
commission of any similar offences during the
pendency of the case registered against him.
Sd/-
JUDGE
GH
