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2020 DIGILAW 1642 (KAR)

Udappa v. The State Of Karnataka

2020-09-02

SHIVASHANKAR AMARANNAVAR

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JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by accused No.2 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.60/2020 of Murgod Police Station for the offences punishable under Sections 302, 341 and 450 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity). 2. The case of the prosecution that one Mayappa Bheemarayappa Chunchunnura has lodged a complaint with regard to murder of his son Siddappa and a case is registered in Crime No.60/2020 of Murgod Police Station for the offences punishable under Sections 302, 341 and 450 read with Section 34 of IPC and the said case is registered against accused No.1- Kousalya and two unknown persons. The Investigating Officer has filed charge sheet. The accusation in the charge sheet is that accused No.1-Kousalya had an illicit relationship with accused No.2, who is the petitioner herein, since 5-6 years and therefore she was visiting her parents place and for that the deceased Siddappa-husband of accused No.1, had objected and therefore, accused No.1 was angry with her husband- Siddappa and with an intention to kill him, on 02.03.2020, when the complainant was not in the house, at that time, she made a phone call to accused No.2-the petitioner and secured accused Nos.2 and 3 from Yeragatti and they entered the house on 03.03.2020 and at about 00.30 hours when Siddappa was sleeping on the cot, they, with the rope given by accused No.1, have put around the neck of Siddappa and at that time accused No.1 was holding his hands and they committed the murder of Siddappa. Charge sheet has been filed for the offences punishable under Sections 302, 341 and 450 read with Section 34 of IPC against accused Nos.1 to 3. The present petitioner who is arrested on 04.03.2020 has filed bail application in Crl.Misc.No.810/2020 and the same came to be rejected on 09.07.2020. Therefore, the petitioner is before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioner/accused No.2 and the learned High Court Government Pleader for the respondent-State. 4. Learned counsel for the petitioner has submitted that the case of the prosecution is based on circumstantial evidence and there are no eyewitnesses to the incident. Therefore, the petitioner is before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioner/accused No.2 and the learned High Court Government Pleader for the respondent-State. 4. Learned counsel for the petitioner has submitted that the case of the prosecution is based on circumstantial evidence and there are no eyewitnesses to the incident. It is his further submission that CW-8- Sannamayappa Bhimappa Chunchanura and CW-9- Mudakappa are the two witnesses who are alleged to have seen accused 2 and 3 entering the house of the deceased on the date of the incident. It is his further submission that accused No.1-Kousalya is alleged to have made extra judicial confession before CW-10- Padeppa Ramappa Adakalagundi. It is his further submission that the last seen together and the extra-judicial confession requires corroboration. In support of his contention, he places reliance on the decision of this Court in the case of Siddappa Doddasadeppa Gundyagol v. Sate of Karnataka, (2009) 6 KarLJ 95 . It is his further submission that investigation is over and the presence of the petitioner is not necessary for custodial interrogation. With these, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader submitted that CWs.8 and 9 have seen accused Nos.2 and 3 entering the house of the deceased on the date of the incident. It is his further submission that accused No.1 has made extra-judicial confession before CW-10 stating that she along with accused Nos.2 and 3 have committed the murder of her husband-Siddappa. It is his further submission that if the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, he prayed to dismiss the petition. 6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. There are no eyewitnesses to the incident and the case of the prosecution is based on circumstantial evidence. CW-8- Sannamayappa Bhimappa Chunchanura and CW-9- Mudakappa are alleged to have last seen accused Nos.2 and 3 entering the house of the deceased. Accused No.1 has made extra-judicial confession before CW-10 stating that she along with accused Nos.2 and 3 have committed the murder of her husband-Siddappa. CW-8- Sannamayappa Bhimappa Chunchanura and CW-9- Mudakappa are alleged to have last seen accused Nos.2 and 3 entering the house of the deceased. Accused No.1 has made extra-judicial confession before CW-10 stating that she along with accused Nos.2 and 3 have committed the murder of her husband-Siddappa. In Siddappa Doddasadeppa Gundyagol (supra) relied on by the counsel for the petitioner, this Court at paragraphs 6 and 7 has held as under: " 6. It is not in dispute that the case is based only on circumstantial evidence and the circumstances like last seen together and making of extra-judicial confession may be of importance. But such material should be of convincing nature to conclude that it is enough to hold that the accused may have committed the crime in question. The prosecution has had the opportunity of interrogating petitioners after their arrest and nothing has been recovered at their instance which may fortify the allegations against them of their involvement in the homicidal death. 7. Be that as it may, the investigation is not yet complete and it is in the process. The material referred to above, in my opinion, raises a suspicion against the petitioners. But as it is not direct material indicting them for serious charge of offence under Section 302 of the IPC and since they are not required for further investigation, they could be admitted to bail." 7. 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, behaviour, 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." 8. In a decision reported in 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 criminal law 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 bail is 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. In the present case, investigation is complete and charge sheet has been filed. No grounds have been made out by the prosecution to show that the custodial interrogation of the petitioner is necessary. There are no criminal antecedents of the petitioner. The petitioner is the resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions. 10. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The petition filed under tion 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.2 shall be released on bail in Crime No.60/2020 of Murgod Police Station subject to the following conditions: i) The petitioner/accused No.2 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to furnish surety within two months. Due to COVID-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety. ii) The petitioner/accused No.2 shall not indulge in tampering the prosecution witnesses. iii) The petitioner/accused No.2 shall mark his attendance in the jurisdictional police station on first Sunday of every month between 10.00 am and 6.00 pm till disposal of the case. iv) The petitioner/accused No.2 shall appear before the Court regularly and co-operate in speedy disposal of the case.