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Karnataka High Court · body

2019 DIGILAW 31 (KAR)

Navalappa v. State Of Karnataka

2019-01-03

H.P.SANDESH

body2019
JUDGMENT : 1. Heard the learned counsel for the petitioner and also the learned HCGP for the respondent-State. 2. The factual aspects of the case are that the petitioner/accused No.2 along with accused Nos.1 and 3 have committed the murder of the deceased. Since accused Nos.1 and 3 fell in love and the deceased opposed the love affairs between accused Nos.1 and 3, all the accused persons hatched a plan to eliminate the deceased and they had succeeded in committing the murder of the deceased and hence the petitioner and other two accused persons were indicted for the offences punishable under Section 302 read with Section 34 of IPC. 3. The contention of the petitioner is that, only the names of accused Nos.1 and 3 were found at the first instance while registering the case and the name of the petitioner herein has been indicted based on the statement of the co-accused that too particularly based on the statement of CW.8 and there was a delay of 10 days in filing the complaint. The alleged incident was taken place on 01.11.2017 and the complaint was registered on 10.11.2017 and the petitioner was arrested on 14.11.2017 and the charge sheet has already been filed and there is no need to keep the petitioner in custody. The entire case of the prosecution is based on the circumstantial evidence created to suit the theory of prosecution and the prosecution case is purely rested on alleged confession of the accused in police custody which is hit by Sections 25 and 27 of the Indian Evidence Act which is inadmissible. 4. The counsel appearing for the petitioner in his argument vehemently contends that only on the basis of the statement of the co-accused, the petitioner has been implicated and except the statement of CW.8 no other material is available and stringent conditions may be imposed and the petitioner may be enlarged on bail since he is in custody from 14.11.2017. 5. Per contra, the learned HCGP appearing for the respondent-State in his argument contends that after filing of the charge sheet, call records are collected and the prosecution intends to file additional charge sheet based on the material collected after filing of the charge sheet. 5. Per contra, the learned HCGP appearing for the respondent-State in his argument contends that after filing of the charge sheet, call records are collected and the prosecution intends to file additional charge sheet based on the material collected after filing of the charge sheet. There are substantial material and call record details disclose that all the accused Nos.1 to 3 have conversated and made preplan to eliminate the deceased and there are substantial piece of evidence to show that the petitioner has also involved in committing the murder of the deceased and hence the petitioner is not entitled for bail. 6. After having heard the arguments of the learned counsel for the petitioner and the learned HCGP, this Court has to examine whether this Court can exercise powers under Section 439 of Cr.P.C.? 7. The main case of the prosecution is that the petitioner along with accused Nos.1 and 3 have made a plan to eliminate the deceased who was coming in the way of love affairs between accused Nos.1 and 3 and hatched up a plan. The P.M. report which is produced along with the petition discloses the cause of death as on account of cardio respiratory arrest secondary to mechanical asphyxia. 8. The main contention of the learned counsel for the petitioner is that this petitioner is implicated based on the statement of the co-accused and also the statement of CW.8 and the injuries which are mentioned are external injuries. The injury on the neck discloses that it appears to be throttling and cut section of neck ecchymosis present under the layers of skin and the very case of the prosecution is doubtful and stringent conditions may be imposed and the petitioner may be granted bail since the investigation has been completed. 9. The learned HCGP in his argument contends that subsequent to filing of the charge sheet, the I.O. has collected the call records which establish that all the accused persons conversated over the phone and hatched up a plan to eliminate the deceased and hence there is sufficient material to believe the case of the prosecution and the I.O. intends to place the additional material collected after the investigation. Now it is the contention of the prosecution that they have not yet placed the material before the concerned Court and the collected call record details and the same is also not available on record as of now. Under Section 173(8) of Cr.P.C. the prosecution can file additional charge sheet if any material is collected subsequent to filing of the charge sheet. 10. Having taken note of the call record details collected by the prosecution and whether the accused/petitioner is involved in the crime also has to be looked into and unless the additional material is placed before the Court, I am of the opinion that at this stage the bail petition that too having considered the nature of allegation and gravity of the offences, it is not a fit case to exercise powers under Section 439 of Cr.P.C. Therefore, I do not find any reasons to enlarge the petitioner on bail at this stage. 11. Hence, I proceed to pass the following: ORDER The petition is dismissed. The learned Sessions Judge is directed to dispose of the matter as soon as possible. The petitioner is also at liberty to approach the concerned Court after filing of additional charge sheet.