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2020 DIGILAW 1498 (KAR)

Ambresh v. State Of Karnataka R/by Addl Spp

2020-07-24

P.N.DESAI

body2020
JUDGMENT P.N.Desai, J. - The petitioners have filed this petition under Section 439 of Code of Criminal Procedure seeking grant of bail in C.C.NO.06/2020 (Santhapur Police Station Crime No.94/2019) for the offences punishable under Sections 364, 302 and 201 read with Section 149 of Indian Penal Code pending on the file of Additional Civil Judge (JR. DN) and JMFC Court, Aurad Dist: Bidar 2. The brief contention of the petitioners is that complaint was lodged by one Pandharinath, Head Constable, Santhapur Police Station, alleging that he came to know from one infomant that in the forest area located by the side of Wadegaon - Koutha-B road, some miscreants after committing the murder of a male person have set fire with intention to cause loss of evidence and foul smell is emerging from that area. Then immediately, he went to the spot, he found bones and burnt cloths. He suspected that the body of a male person was burnt in that spot about 8-9 days back with intention to cause disappearance of evidence. So, the FIR came to be registered in Crime No.94/2019 against unknown persons for the offences punishable under Sections 364, 302 and 201 of Indian Penal Code. It is further alleged that during the investigation the Investigating Officer came to know that on 21.09.2019 during night hours the deceased-Kallappa had been to the house of Dashrath and misbehaved with the women members of that family. Out of that grievance, these petitioners have caught Kallappa, tied his hands and legs and by assuring the public that, they would take him to police station, took him in a Tractor, done him to death and with intention to cause disappearance of evidence, set it fire. Thereafter, accused have given confession statement stating that the deceased went to the hotel of one Sharanappa and also Dhulappa kirani shop and harassed them. Then he also went to the house of one Dasarath Yaranale with a knife, chilly powder and rod and assaulted his children. On 21.09.2019 early morning Dasarath informed this to the petitioners that the said Kallappa assaulted the ladies of his house who were sleeping. All the petitioners went there and they found that Kallappa was tied in the house of Dasarath with a rope. Then they enquired the deceased, he started abusing the persons gathered there and also abused the petitioner. On 21.09.2019 early morning Dasarath informed this to the petitioners that the said Kallappa assaulted the ladies of his house who were sleeping. All the petitioners went there and they found that Kallappa was tied in the house of Dasarath with a rope. Then they enquired the deceased, he started abusing the persons gathered there and also abused the petitioner. So the petitioner No.1 and his brother all of them took the Kallappa in their Tractor bearing No.KA-38-T-3755, Trolley NO.KA-38-T- 3754 and they intended to take him to Santhapur Police Station and hand over him. 3. It is further the case of the prosecution that this accused in their further voluntary statement stated that near Forest at Allur-B Shivara, they got down Kallappa from the Tractor and made him to lay into the ground and they drove the Tractor tyre on him, then he was hanged then returned to their house. Then on the same day night and all the petitioners purchased the petrol and brought down the body of the deceased and poured petrol on it and set fire. So based on this, the charge sheet came to be filed against the accused. The petitioners have contended that they are innocent. The alleged kidnap has taken place on 21.09.2019 and the missing complaint was lodged on 03.10.2019, bones and clothes of the deceased were found on 09.10.2019. These petitioners were deliberately and with malafide intention involved in this crime without any material. 4. It is further contended that the mother of the deceased one Sulochana after the death of her husband remarried and got a second son out of the second marriage with one Shivaji of Waghdari. The wife of the deceased also deserted him because of some misunderstanding and she is residing at her parents house. So the possibility of grabbing the property by mother or the wife by murder of the deceased cannot be ruled out. Since the Sulochana had left the deceased when she was aged five years, the identification of bones and clothes by her itself is doubtful. The entire allegation on the petitioner is unnatural and unbelievable. There is no FSL report to show that bones and clothes belongs to deceased Kallappa. The petitioner Nos.1, 2 , 4 and 5 were arrested on 11.10.2019. They are respectable person having movable and immovable property and they are ready to abide by the conditions. The entire allegation on the petitioner is unnatural and unbelievable. There is no FSL report to show that bones and clothes belongs to deceased Kallappa. The petitioner Nos.1, 2 , 4 and 5 were arrested on 11.10.2019. They are respectable person having movable and immovable property and they are ready to abide by the conditions. With these contentions, they have prayed to enlarge them on bail. 5. The learned High Court Government Pleader has filed objection contending that the offence is heinous in nature. The forest area located by the side of Wadegaon-Koutha-B who is accused-petitioners have set fire to the body of the deceased and they have murdered him. It is this petitioner who have taken this deceased from the house of Dasarath stating that they will hand over him to police, but they have done into death and with intention to cause disappearance of the evidence, they have set fire to his body. The prosecution has contended that accused have confessed about committing the crime. The said offence is punishable with death or imprisonment for life. The I.O. has collected all the evidence against the petitioners. If they are granted bail, there are chances of giving threat to witnesses, destroying the evidence collected. It is further contended that it is this petitioner who have taken the deceased on 21.09.2019, thereafter his body was not traced only bones are traced. CW17 mother of the deceased and CW.18 to CW.32 stated that these accused petitioners who have taken the deceased with them in a Tractor on the pretext of producing him before the police. So it is for the accused petitioner to explain whereabouts of the deceased. So if the accused are released there is likely hood of absconding and fleeing away from taking the trial. With these contentions he prayed to reject the bail petition. 6. Perused the material, it is evident that the FIR came to be registered against unknown person and also regarding the death of unknown person. In Crime No.94/2019 on 09.10.2019 based on the report given by the one Mr. Pandharinath, Head Constable-714 of Santhapur Police Station. That he came to know through some informer that there was marks of some burnt body and bones and a smell is coming. So he went there and found the body was burnt may be around 8 to 9 days back. So the complaint came to be lodged. Pandharinath, Head Constable-714 of Santhapur Police Station. That he came to know through some informer that there was marks of some burnt body and bones and a smell is coming. So he went there and found the body was burnt may be around 8 to 9 days back. So the complaint came to be lodged. It is evident from the statement of witnesses i.e. Sulochana the mother of the deceased which is recorded on 10.10.2019 that her son Kallappa when aged about five years she married another person and Kallappa was residing with his grand parents then he was married with one Ambika and even his wife has left him about two months prior to this incident. It is also in her statement that the deceased Kallappa was always quarreling with public and behaving indecently. Even her sister husband was also informed on 29.09.2019 by Shivaraj that this deceased Kallappa quarreled with Dasarath and his family person. So the children of Shivaraj have taken this deceased in a Tractor to hand over him to Police Station. At that time, stating that he has to attend the natural call the said Kallappa ran away. So this was informed to the Sulochana on 21.09.2019 itself. Then she enquired about her son for 8 to 9 days as they could not see anything they lodged missing complaint on 03.10.2019. Similarly the statement of wife of the deceased that she was informed by Shivaraj on 21.09.2019 about this and she had a lodged the missing complaint at Police Station and it was registered in Santhapur Police Station. 7. So it is evident that this deceased Kallappa was not residing with his mother for long year. He separated herself when he was five years old. Even it is alleged that he was suspecting the chastity of his wife and was harassing his wife. So she has left her husband and residing separately prior to 2 or 3 months of this incident. It is also evident that he use to quarrel with so many person, assault them and even he has assaulted the family members of Dasarath. So the family members of the Dasarath have tied him in their house and these petitioners came there for taking him to the police station. It is also evident that he use to quarrel with so many person, assault them and even he has assaulted the family members of Dasarath. So the family members of the Dasarath have tied him in their house and these petitioners came there for taking him to the police station. According to the petitioners, the deceased stating that he has to attend the natural call got down from the Tractor and thereafter he ran away. So this they informed to the mother and wife of the deceased. It is evident from the statement of the witnesses. So the very conducted of the accused informing the deceased mother and wife about this deceased running away from the Tractor indicates at this stage that if at all the petitioners themselves were involved in the said offence, they would not have informed the deceased mother and wife about they taking this deceased in a Tractor to a police station. Thereafter in fact the missing complaint came to be lodged after a long time that too on 03.12.2019. Now it is the allegation of the prosecution that this accused who themselves stated in a confession statement that they themselves killed the deceased and burnt dead body. So the entire case is based on circumstantial evidence and last seen theory. So this can be thrashed out at the time of trial. Looking into the prima-facie material placed before the Court, at this stage there are no eye witnesses to the incident. The accused themselves has informed the mother and wife of the deceased about they taking the deceased in a Tractor and deceased running away from the Tractor. 8. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consideration: (1) The nature and gravity of the offence, (2) Circumstances under which it is committed (3) Its impact on the society, (4) Possibility of accused fleeing from the justice or availability of the accused. (5) The background of the accused (6) Previous history of any criminal records and such other things. 9. Keeping in mind, these principles if the present case is considered it is evident that the entire case of the prosecution rest on the circumstantial evidence that to the voluntary or confession statement stated to have been given by the petitioners. (5) The background of the accused (6) Previous history of any criminal records and such other things. 9. Keeping in mind, these principles if the present case is considered it is evident that the entire case of the prosecution rest on the circumstantial evidence that to the voluntary or confession statement stated to have been given by the petitioners. Now they denied it. The matter has to be thrashed out at the time of trial. The apprehension of the prosecution that the accused may tamper the prosecution witnesses or they may escape may not appear for trial can be meted out by imposing reasonable conditions. 10. In the result, I pass the following.. ORDER Criminal Petition filed under Section 439 of Cr.P.C. by the petitioners is hereby allowed. Petitioner No.1 by name Ambresh S/o Shivaraj Rajolle, petitioner No.2-Ankush S/o Shivraj Rajolle, petitioner No.3-Jigonda @ Jeetgonda S/o Dashrath Yernalle, petitioner No.4-Nagesh S/o Ashok Koli and petitioner No.5-Sangmesh @ Sangappa S/o Sidram Halle are ordered to be enlarged on bail in Crime No.94/2019 of Santhapur Police Station, District Bidar, for the offences punishable under sections 364, 302 & 201 R/w 149 of Indian Penal code, pending on the file of Addl. Civil Judge (Jr.Dn.) & JMFC Court Aurad, District Bidar, on the following conditions: 1. Petitioners shall execute personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) each and furnish two sureties in the likesum to the satisfaction of the trial Court. 2. Petitioners shall not try to tamper the prosecutions witnesses directly or indirectly in any manner. 3. Petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him / her from disclosing such facts to the Court or to any police officer or tamper with the evidence. 4. Petitioners shall not leave the jurisdiction Court/ committal Court without prior permission of the trial Court. 5. Petitioners shall give their attendance before the Station House Officer of Santhapur Police Station, District Bidar on every Sunday between 10.00 a.m. and 03.00 p.m. for a period of two months or till final report is filed, whichever is earlier. 6. Petitioners shall be regular in attending the Court proceedings. If any of the conditions are violated, the prosecution is at liberty to move for cancellation on bail.