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2020 DIGILAW 1281 (KAR)

Avvaneppa v. State Of Karnataka

2020-06-30

ASHOK G.NIJAGANNAVAR

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JUDGMENT Ashok G Nijagannavar, J. - This petition is filed by the accused under Section 439 Cr.P.C. seeking bail in S.C.No.19/2020 (Crime No.0116/2019 of Bilagi Police Station C.C.No.33/2019) pending before the learned District and Sessions Judge, Bagalkot for the offence punishable under Section 302 I.P.C. 2. The prosecution case is that on the complaint filed by the younger brother of the victim deceased, the polce have registered the case. The allegations are that his elder sister- Manjula had completed her college education and her engagement ceremony was performed with their relative by name Umesh Rathod about two years back, but the marriage was not performed. Meanwhile his elder sister had developed friendship/intimacy with the petitioner-accused by name Avvaneppa for the past 2 to 3 years. Despite the advice by the elders, they had not stopped their friendship. Her sister had informed that she would not be allowed to live if she does not marry him. But the family members had kept quite in order to preserve the family prestige. On 30.08.2019 night at about 8.00 p.m. her sister was talking to someone over the mobile phone and all the family members watching TV at home. She did not return home till 11.00 p.m. When they searched at nearby places, her dead body was found in the toilet situated at the backside of Harishchandra Lamani. The complainant suspects that the accused-Avvaneppa has committed the murder of his sister as she had refused to marry him. 3. On registering the case, the police have conducted the investigation and submitted the charge sheet for the offence punishable under Section 302 I.P.C. The accused was arrested on 01.09.2019 and he is in custody since from the date of arrest. The bail petition filed by the petitioner before the Sessions Court is rejected. 4. Heard the learned counsel for the petitioner-accused and the learned HCGP for respondent-State. Perused the records. 5. The complaint averments disclose that the accused had friendship with victim girl, who is the complainant's elder sister for the past 2 to 3 years and the said girl was engaged to another person, but no marriage has taken place. The main contention of the learned counsel for the petitioner is that there are no eyewitnesses or direct evidence, the entire case of the prosecution is based on circumstantial evidence. The main contention of the learned counsel for the petitioner is that there are no eyewitnesses or direct evidence, the entire case of the prosecution is based on circumstantial evidence. Thus, there is no prima facie case to prove the involvement of the accused in commission of the offence. Even though the engagement was performed two years back, the marriage of the victim had not taken place. Mere friendship between accused and the victim cannot be the ground to suspect the involvement of the accused. The accused is in judicial custody since from the date of his arrest. The investigation is completed. Hence, the presence is not required for custodialinterrogation. Due to the detention, the petitioner-accused has been put to great hardship. 6. Per contra, the learned HCGP submitted that CWs.7 to 9 have stated that prior to the death of the victim girl, the accused was sitting with her. There is a prima facie case to show that the accused has throttled the neck of the victim girl in the event of granting bail, the accused is likely to cause threat to the family members of the victim and other prosecution witnesses. 7. Having regard to the submission made by the learned counsel for the petitioner and the learned HCGP, this Court has gone through the charge sheet records. According to some of the witnesses-CWs.7 to 9 indicate the last seen theory, but this alone cannot indicate the prima facie case. At this stage, it is needless to make elaborate discussion or to give any specific findings as the same is not permissible while considering the bail application. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause threat to the family members of the victim and other prosecution witnesses. The said objection can be set right by imposing stringent conditions. 8. In a decision the case of Dataram Singh v. State of Uttara Pradesh and Another, (2018) 3 SCC 22 , the Hon'ble Apex Court held as under : "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. 8. In a decision the case of Dataram Singh v. State of Uttara Pradesh and Another, (2018) 3 SCC 22 , the Hon'ble Apex Court held as under : "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminallaw where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bailis the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society." 9. It is well settled that matters to be considered in an application for bail are : "( i ) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; ( iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi ) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with ; and (viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused." 10. It is well settled principle that the gravity of the offences alleged alone cannot be a ground to reject the bail. It is well settled principle that the gravity of the offences alleged alone cannot be a ground to reject the bail. In a decision in the case of Jayendra Saraswathi Swamigal V/s State of Tamil Nadu, (2005) CriLJ 883 , the Hon'ble Apex Court has observed as under: "The considerations which normally weigh with the Court in granting bailin non-bailable of fences are the nature and seriousness of offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case." 11. In the facts and circumstances of the case, this Court is of the view that there are valid grounds for granting bail to the accusedpetitioner, subject to certain terms and conditions. Accordingly, I proceed to pass the following: ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner shall be released on bailin S.C.No.19/2020 (Crime No.0116/2019 of Bilagi Police Station C.C.No.33/2019), pending on the file of District and Sessions Judge, Bagalkot subject to following conditions. i . The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) with two sureties for the like sum to the satisfaction of the trial Court. ii . The petitioner shall not indulge in tampering the prosecution witnesses. iii . The petitioner shall appear before the trial Court/Sessions Court on all the future hearing dates unless prevented by any genuine cause. iv. The petitioner shall not leave the jurisdiction of the trial Court/Sessions Court without prior permission, till the disposal of the case. If the accused/petitioner violates any of the conditions, the bail order shall stand vacated automatically.