Karnataka High Court

Sri. Nagarajappa @ Nagaraju vs State Of Karnataka on 12 November, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                              NC: 2024:KHC:45642
                                                           CRL.A No. 948 of 2024




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 12TH DAY OF NOVEMBER, 2024

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL No. 948 OF 2024
                      BETWEEN:

                            SRI NAGARAJAPPA @ NAGARAJU
                            S/O KRISHNAPPA
                            AGED ABOUT 53 YEARS
                            R/A GUDUPALLI VILLAGE & POST
                            KUPPAM TALUK
                            CHITTOOR DISTRICT
                            ANDHRA PRADESH - 517 425.
                                                                   ...APPELLANT

                      (BY SRI NANJUNDA GOWDA M R, ADVOCATE)

                      AND:

                      1.    STATE OF KARNATAKA
                            BY KAMASAMUDRAM POLICE
                            KOLAR DISTRICT
                            REPRESENTED BY
Digitally signed by
                            STATE PUBLIC PROSECUTOR
LAKSHMINARAYANA
MURTHY RAJASHRI
                            HIGH COURT BUILDINGS
Location: HIGH              BENGALURU - 560 001.
COURT OF
KARNATAKA
                      2.    SRI MALLESH
                            S/O VENKATESHAPPA
                            AGED ABOUT 34 YEARS
                            R/AT THANIMADUGU VILLAGE
                            DONIMADUGU POST
                            BANGARPET TALUK
                            K G F, KOLAR - 563 114.
                                                                ...RESPONDENTS
                      (BY SRI K NAGESHWARAPPA, HCGP FOR R1
                       R2 IS SERVED BUT UNREPRESENTED)
                             -2-
                                        NC: 2024:KHC:45642
                                     CRL.A No. 948 of 2024




     THIS CRL.A. IS FILED UNDER SECTION 14(A)(2) OF
SC/ST (POA) ACT, 2015 PRAYING TO SET ASIDE THE ORDER
DATED 10.07.2023 PASSED IN SPL. S.C. IPC AND S.C AND S.T.
No.7/2023 ON THE FILE OF THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT KOLAR FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 201, 302 R/W 34 OF IPC AND
SECTION 3(2)(v) OF SC/ST (POA) ACT, 1989, REGISTERED BY
KAMASAMDRAM POLICE STATION AND ETC.

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

CORAM:    HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR



                   ORAL JUDGMENT

1. This appeal is filed by appellant - accused No. 2

praying to set aside the order dated 10.07.2023 passed in

Spl.S.C. IPC and SC and ST 7/2023 by the II Additional

District and Sessions Judge, Kolar, whereunder the bail

application of appellant - accused No. 2 sought in respect

of crime No. 11/2023 of Kamasamudram Police Station

registered for offence punishable under Section 120-B,

302, 201 read with Section 34 of IPC and Section 3(2)(v)

of Scheduled Castes Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter for the sake of brevity

referred to as the SC ST (POA) Act') came to be rejected.

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2. Heard learned counsel for appellant - accused

No. 2 and learned HCGP for respondent No. 1 - State.

Inspite of service of notice, respondent No.2 remained

absent and unrepresented.

3. Case of the prosecution as per column No. 17 of

the charge sheet is that accused No.1 is the wife of the

deceased Thimmappa and she had illicit relationship with

accused No.2 and in that regard the deceased had advised

his wife - accused No. 1 to stop the said illicit relationship.

Enraged by the same, on 11.02.2023 accused Nos.1 and 2

conspired to kill the deceased when they were returning

from coolie work in train. On 11.02.2023 at about 08.00

pm accused No. 1 returned to her house and accused No.

2 returned to his house. Accused No.1 gave Rs.100/- to

her husband - deceased for consuming alcohol and

thereafter she made a phone call from her mobile to the

mobile of accused No.2 and asked him to come to her

house. Accused No. 2 came to her house. When the

deceased was sleeping in the house, accused No.1 put a

size stone on his head and chin and he sustained serious

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injuries and died on the sport. Thereafter, accused Nos.1

and 2 took the body and threw it in the land of one

Narayanappa and accused No.1 had cleaned the blood

stains in her house. Charge sheet has been laid against

accused No.1 for offence under Sections 120-B, 302, 201

read with Section 34 of IPC and charge sheet has been laid

against accused No.2 for offence under Sections 120-B,

302, 201 read with Section 34 and Section 3(2)(v) of SC

ST Act. Appellant - accused No.2 came to be arrested on

12.02.2023 and he is in judicial custody. Appellant -

accused No. 2 filed bail application along with accused No.

1 and bail application of appellant - accused No.2 came to

be rejected by order dated 10.07.2023 and accused No. 1

has been granted bail by the very same order. The

appellant - accused No.2 being aggrieved by the said order

has filed this appeal.

4. Learned counsel for appellant - accused No.2

would contend that C.W.2 and C.W.3 are the two children

of the deceased who are cited as eye witnesses in the

charge sheet and their statements are recorded after 16

NC: 2024:KHC:45642

days of the incident and it creates a doubt regarding they

being the eye witnesses to the incident. The appellant -

accused No.2 is in judicial custody since more than 1-½

years and as charge sheet is filed, he is not required for

custodial interrogation. Complaint has been filed by the

brother of the deceased on 12.02.2023 and no overt act is

alleged against appellant - accused No.2 except the illicit

relationship between him and accused No.1. Said

complaint has been filed only on suspicion as appellant -

accused No. 2 had illicit relationship with accused No.1

who is the wife of the deceased. On these grounds he

prayed for allowing the appeal and grant of bail to

appellant - accused No. 2.

5. Per contra, learned HCGP would contend that

C.W.2 and C.W.3 are the two children of the deceased who

have seen the appellant - accused No.2 putting the stone

on the head and chin of the deceased and causing severe

injuries and death. Said stone has been recovered from

the spot and it is sent for FSL for examination and report

is awaited. The appellant - accused No.2 is a resident of

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Andhra Pradesh and if he is granted bail, he will not be

available for trial and there is threat to the prosecution

witnesses including the two children of the deceased. On

these grounds he prayed for dismissal of the appeal.

6. Having heard the learned counsel for the parties

this Court has perused the impugned order and charge

sheet material.

7. The alleged incident has taken place on

12.02.2023 during night hours in the house of accused No.

1 and the deceased. C.W.2 and C.W.3 who are the

children of the deceased and accused No. 1 are cited as

eye witnesses in the charge sheet. Statements of C.W.2

and C.W.3 have been recorded on 28.02.2023 even

though the incident has taken place on 12.02.2023. In the

statements both C.W.2 and C.W.3 have stated that this

appellant - accused No.2 put stone on the head and chest

of their father and they saw it. The delay in recording the

statement of C.W.2 and C.W.3 creates a suspicion

regarding they witnessing the incident. The statements of

C.W.2 and C.W.3 are also recorded under Section 164 of

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Cr.P.C. C.W.2 in her statement recorded under Section

164 of Cr.P.C. has stated that when she and her younger

brother were sleeping, they heard a sound, woke up and

saw appellant - accused No. 2 putting a stone on the head

and face of their father. C.W.3 has stated in his statement

recorded under Section 164 of Cr.P.C. that on hearing a

sound he got up and at that time there was bleeding injury

on the head and face of his father and at that time his

elder sister told him that as appellant - accused No. 2 had

put stone on their father, there was bleeding.

8. On perusal of column No. 17 of the charge

sheet overt act is alleged only against accused No. 1 of

putting stone on the face and head of the deceased -

Thimmappa. There is no overt act against appellant -

accused No. 2 in column No. 17 of the charge sheet except

mentioning his presence in the house of the deceased. As

charge sheet is filed, appellant - accused No.2 is not

required for custodial interrogation. Considering all these

aspects the appellant - accused No.2 has made out

grounds for setting aside the impugned order and grant of

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bail. Merely because appellant - accused No.2 is a resident

of Andhra Pradesh he cannot be denied bail and his

presence can be secured for trial by imposing conditions.

9. In the result the following;

ORDER

The appeal is allowed. The impugned order dated

10.07.2023 passed in Spl.S.C. IPC and SC and ST

No.7/2023 by the II Additional District and Sessions

Judge, Kolar is set aside insofar as appellant - accused

No.2 is concerned. The appellant - accused No. 2 is

granted bail in crime No. 11/2023 of Kamasamudram

Police Station pending in Spl.S.C. IPC and SC and ST

No.7/2023 subject to the following conditions:

i. The appellant - accused No.2 shall execute a

personal bond for a sum of Rs.1,00,000/- with one

surety for the like sum to the satisfaction of the trial

Court.

ii. The appellant - accused No.2 shall not threaten the

complainant and other prosecution witnesses.

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iii. The appellant - accused No. 2 shall appear on all

dates of hearing before the trial Court unless

exempted and cooperate in speedy disposal of the

case.