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2015 DIGILAW 1207 (KAR)

Mallesh v. State of Karnataka

2015-10-29

R.B.BUDIHAL

body2015
ORDER : Budihal R.B., J. 1. This is the petition filed by the petitioner/accused No. 4 under Section 439 of Cr.P.C. seeking his release on bail, of the alleged offences punishable under Sections 364, 302, 341 read with 34 of IPC and Section 3(2)(V) of the SC/ST Prevention of Atrocities Act, registered in respondent-police station Crime No. 181/2015 and now pending in Sessions Case No. 203/2015 before the III Addl. District & Sessions Judge, Belagavi. 2. The brief facts of the prosecution case as per the complaint averments are that, Smt. Kashawwa w/o. Shekar Ghasti alleged that complainant's husband was working at Hukkeri and on 25.05.2015 at 8.30 AM he left the house to do work. On the same day at 6.30 PM the brother of the deceased by name Basavaraj came and enquired the complainant regarding the whereabouts of his brother. Complainant informed that on morning he left to attend the work. Then the Basavaraj stated that one of his friends informed that today morning at 10.30 AM accused Nos. 1 and 2 kidnapped her husband in the Indica Car and they went towards Hukkeri. Later came to know that said persons assaulted him and got admitted in the KHI Hospital at Ghataprabha. It is also alleged in the complaint that after hearing the said news complainant along with some other relatives went to KHI hospital. The Doctor informed that three unknown persons came around 12 noon and got admitted husband of the complainant. Thereafter he was found dead at about 12.35 pm. They went and saw dead body and observed that there are some scratch marks on the neck and chest portion. On the basis of the said complaint firstly case was registered against accused Nos. 1 and 2 with two unknown persons. 3. Heard arguments of the learned counsel for the petitioner-accused No. 4 and also learned Govt. Pleader for the respondent-State. 4. Counsel for the petitioner-accused No. 4 submitted that, prosecution materials clearly go to show that there is no prima facie case as against the present petitioner. Even if the allegations are taken to be true and read as it is, the overt act attributed against the present petitioner is not of any kind of assault on the deceased but only he caught hold the deceased. Even if the allegations are taken to be true and read as it is, the overt act attributed against the present petitioner is not of any kind of assault on the deceased but only he caught hold the deceased. Hence, he made submission that now the investigation of the case is completed and charge sheet is filed, by imposing reasonable conditions he can be considered for bail. 5. Per contra learned Govt. Pleader made submission that materials and the statement of the eyewitnesses go to show that the present petition was also accompanied with accused Nos. 1 and 2 and the deceased in the car and they all assaulted the deceased and thereby caused his death. She submitted that the offence alleged u/S 302 of IPC is a serious offence. If the petitioner is released on bail there is every likelihood that he may tamper the prosecution witnesses and he may abscond. Hence, submitted to reject the petition. 6. Perused the averments made in the bail petition, FIR, Complaint and all other charge sheet material produced by the learned Govt. Pleader. I have also perused the order passed by the learned Sessions Judge, Belagavi, rejecting the bail application. 7. Looking to the materials placed on record, they go to show that firstly the FIR was registered against accused Nos. 1 and 2 with two unknown persons. But the name of the present petitioner was ascertained and arrayed during the course of investigation by the I.O. I have also perused the statement of the eyewitnesses said to have been recorded by the I.O. during the investigation. They are, one Jabbar Imam Mulla statement recorded on 26.05.2015 and another witness one Niyaz Jamaluddin statement recorded on 26.05.2015. It is no doubt true looking to the statement of these two eyewitnesses go to show that the present petitioner also accompanied accused Nos. 1 and 2 and the deceased in a car. Their statement also go to show that the present petitioner caught hold the deceased whereas the accused Nos. 1 and 2 assaulted with hands and with sticks on the neck portion and chest portion. Perusing the averments made in the complaint they go to show that it is accused Nos. 1 and 2 who came to the house and took the deceased in a car. So, at that moment also there is no allegation so far as the present petitioner is concerned. Perusing the averments made in the complaint they go to show that it is accused Nos. 1 and 2 who came to the house and took the deceased in a car. So, at that moment also there is no allegation so far as the present petitioner is concerned. So, the overt act alleged against the present petitioner is only caught holding the deceased and no allegation with regard to the assault made in between and caused any injuries. 8. I have also perused the Postmortem report and opinion of the Doctor regarding cause of death of the deceased wherein it is mentioned that death was due to asphyxia and due to broken thyroid due to hard and blunt object. Death since 10-12 hours. Even this opinion of the Doctor regarding the cause of death goes to show that there was assault on the thyroid which was broken because of the hard and blunt object used and so perusing the prosecution materials, it was the allegation as against the present petitioner that he assaulted the deceased with any hard and blunt object on the neck or chest portion. Now the investigation of the case is completed and charge sheet is already filed. So far as the apprehension of the prosecution for the present petitioner absconding or he may tamper the prosecution witness, reasonable conditions can be imposed. Hence, petition is allowed, petitioner-accused No. 4 is ordered to be released on bail of the alleged offences subject to the following conditions. "1) He shall execute a personal bond fur a sum of Rs. 1,00,000/- with one surety for the likesum to the satisfaction of the trial Court. 2) He shall not tamper with any prosecution witnesses directly or indirectly. 3) He has to appear before the concerned Court regularly."