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2020 DIGILAW 1695 (KAR)

Fakkirappa @ Prahalad v. State Of Karnataka

2020-09-03

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by accused Nos.3 to 6 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.112/2019 of Kalaghatagi Police Station for the offences punishable under Sections 143, 147, 148, 448, 504, 506, 341, 307, 302, 324, 326, 120B, 201 read with 149 of The Indian Penal Code (hereinafter referred to as the IPC , for brevity) and under Section 27 of The Arms Act, 1959. 2. The case of the prosecution is that the complainant is the brother of deceased Veerabhadrappa Basavanneppa Sattur. The said Veerabhadrappa was a member of Gram Panchayat for last 15 years and President of PLD Bank, Dhummawada Society. It is alleged that during the Gram Panchayat election, because of political rivalry, petitioner Nos.1 to 3 had grouse against Veerabhadrappa and that cases were filed against each other in the police station. The family of Pujar also had differences with his brother Veerabhadrappa in respect of performing pooja in Basavanna temple. On 09.09.2019, at about 7.00 pm, the complainant was proceeding towards his house along with the cattle and when he passed on the road near the house of accused No.1-Basavaraj Shivappa Akki, accused No.2-Basavaraj Sangappa Akki, they took objection for using the pathway and picked up a quarrel and the complainant went to his house saying that he would not use the pathway henceforth. It is further alleged that accused Nos.1 and 2 came to his house along with others, gained entry into the house and pulled him out of the house. The accused persons who were holding weapons in their hands started assaulting the complainant and dragged him to the land belonging to accused No.1-Basavaraj Shivappa Akki. Accused No.1 with talwar (chopper) assaulted on the right hand, accused No.13-Irayya Basaiah Pujar with iron rod assaulted on the person of the complainant. The wife of the complainant telephonically informed Veerabhadrappa-deceasead and Nagappa and both of them came to the spot along with their children Ravikumar, Basavaraj and Eranna. The accused abused them. Accused No.3-Fakkirapa Prahald Chulaki and accused No.4-Krishna Chulaki with a talwar assaulted on the head of Veerabhadrappa and he fell down and at that time accused No.5-Mallappa Chulaki and accused No.6-Channiah Pujar threw stones on the head of Veerabhadrappa and he died on the spot. The accused abused them. Accused No.3-Fakkirapa Prahald Chulaki and accused No.4-Krishna Chulaki with a talwar assaulted on the head of Veerabhadrappa and he fell down and at that time accused No.5-Mallappa Chulaki and accused No.6-Channiah Pujar threw stones on the head of Veerabhadrappa and he died on the spot. It is further alleged that accused No.2-Basavaraj Sangappa Akki and accused No.9-Sangappa Basappa Yemmetti caught hold of Ravikumar-deceased, accused No.7- Praveen Kallappa Karadi with talawar assaulted on his head and accused No.8-Siddaram Halappa Akki with iron rod assaulted on the head and caused injuries. It is further alleged that accused No.12-Maruthi Halappa Akki caught hold of Nagappa and accused No.10- Kallappa Basappa Karadi with talwar assaulted on the hand and that his fingers were cut off. Accused No.11- Mahesh Fakkirappa Karadi assaulted with club on his person. It is further alleged that accused No.14-Basiah Fakkiruiah Pujar with club and accused No.15-Yallappa Basappa Yemmetti with iron pipe assaulted on the head and other parts of body of Basavaraj Nagappa Sattur. It is further alleged that accused No.16-Shekappa Hanamanthappa Jodalli with club, accused No.17- Shankriah Malliah Yadawad with a chopper assaulted on the left shoulder and other parts of the body of Iranna Kallappa Sattur and caused injuries. One Kasturi, Smt. Sarjavva Davalsab, Hussainsab, Fakkirappa, Basalingappa and others on coming to know of the incident, came there and pacified the quarrel. The incident is said to have taken place on 09.09.2019 at 8.00 pm and the injured were removed to the hospital for treatment. The said injured Ravikumar died during treatment on 10.09.2019. The respondentpolice, after completion of the investigation, have submitted charge sheet. The petitioners/accused Nos.3 to 6 have filed bail application in Crl.Misc.No.62/2020 and the same came to be rejected by the learned Sessions Judge, Dharwad. Therefore, the petitioners/accused Nos.3 to 6 are before this Court seeking bail. 3. Heard the arguments of Sri. Ravi B. Naik, Senior Counsel for the petitioners and the learned High Court Government Pleader for the respondent-State. 4. It is the submission of the learned senior counsel for the petitioners that the incident took place in the darkness and street light was at a distance and it was not sufficient and possible to see individual overt acts of each of the accused. 4. It is the submission of the learned senior counsel for the petitioners that the incident took place in the darkness and street light was at a distance and it was not sufficient and possible to see individual overt acts of each of the accused. It is his further submission that the accused were 17 in number and the complainant and others were 14 in number and it was a free fight in the land of accused No.1. There was no motive for the accused to cause the death of Veerabhadrappa and Ravikumar. It is alleged that accused Nos.5 and 6 threw stones on the head of deceased Veerabhadrappa but there are no crush injuries over the head of the deceased Veerabhadrappa as the stone causes crush injuries. It is his further submission that accused No.5 is aged 68 years and he is not able to lift a sized stone. It is his further submission that there are no injuries over the head of the deceased Veerabhadrappa corresponding to the overt act alleged against accused Nos.5 and 6. It is his further submission that investigation is over and charge sheet has been filed and the petitioners are no more required for any custodial interrogation. With these, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader contended that there are several criminal cases pending between the accused family, complainant s family and Pujar family. It is his further submission that there was a motive for the petitioners to commit the murder of Veerabhadrappa and Ravikumar. It is his further submission that there are injured eyewitnesses to the incident and the case involves double murder. It is his further submission that the petitioners have assaulted Veerabhadrappa and caused his death and that there are injured eyewitnesses and eyewitnesses to the incident. It is his further submission that due to the assault made by the petitioners, Veerabhadrappa died on the spot. It is his further submission that the wife of the deceased has filed an application before CPI seeking protection as there is threat to her life by the accused persons and in that regard, proceedings under Section 107 of Cr.P.C. has been initiated against the petitioners. It is his further submission that if the petitioners are granted bail, they will commit similar offences and there is threat to the complainant and his family members. It is his further submission that if the petitioners are granted bail, they will commit similar offences and there is threat to the complainant and his family members. With this, he prayed to dismiss the petition. 6. Having regard to the submission made by the learned senior counsel for the petitioners and the learned High Court Government Pleader, this Court has gone through the charge sheet records. 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 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. 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. The complainant, other eyewitnesses and the accused persons are from the same village and they know each other and therefore even if there is poor visibility of street light, they can identify each other. The Doctor, who conducted the postmortem examination over the dead body of Veerabhadrappa, has opined that the death is due to cerebra vascular hemorrhage due to head injury . Out of 8 external injures over the dead body of deceased Veerabhadrappa noted in the postmortem report, two injuries are on the head which are as under: i) Avulsed wound present in the occipital region measuring 24x12cm. ii) cut lacerated wound present in the occipital temporal region. The said injuries corresponds to the overt act alleged against accused Nos.3 and 4 i.e. assault with talwar on the head of Veerabhadrappa. The said overt act has also been stated by the complainant and other eyewitnesses including the injured eyewitnesses. Therefore, there is prima facie case against accused Nos.3 and 4, who are petitioner Nos.1 and 2 herein, with respect to causing murder of Veerabhadrappa by assaulting with talwar on his head. Hence, they are not entitled for grant of bail. 10. The overt act alleged against accused Nos.5 and 6 is that they threw stones on the head of Veerabhadrappa. Stone causes crush injury. The above noted injuries on the head of the deceased Veerabhadrappa are not crush injures. Therefore, the overt act alleged against accused No.5 and 6 does not correspond to the injuries sustained by the deceased Veerabhadrappa. Apart from the said overt act by accused Nos.5 and 6, no other overt act has been alleged against them. Therefore, accused Nos.5 and 6 are entitled for grant of bail subject to certain terms and conditions. 11. Therefore, the overt act alleged against accused No.5 and 6 does not correspond to the injuries sustained by the deceased Veerabhadrappa. Apart from the said overt act by accused Nos.5 and 6, no other overt act has been alleged against them. Therefore, accused Nos.5 and 6 are entitled for grant of bail subject to certain terms and conditions. 11. Learned High Court Government Pleader has contended that there are criminal cases pending against the petitioners and therefore they are not entitled for grant of bail. 12. The learned counsel for the petitioners contended that even though criminal cases are pending against the accused, the said factor cannot be a basis for refusal of prayer for bail. On that point, he places reliance on a decision in the case of Prabhakar Tewari v. State of U.P,2020 AIAR(CRIMINAL) 370 . The main objection of the prosecution is that in the event of granting bail, the petitioners are likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions. 13. 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 to petitioner Nos.3 and 4/accused Nos.5 and 6 subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The petition filed under section 439 of Cr.P.C. is allowed in part. Petition so far as petitioner Nos.1 and 2/acused Nos.3 and 4 is dismissed. Petition so far as petitioner Nos.3 and 4/accused Nos.5 and 6 is allowed. Consequently, petitioner Nos.3 and 4/accused Nos.5 and 6 shall be released on bail in Crime No.112/2019 of Kalghatagi Police Station subject to the following conditions: i) Petitioner Nos.3 and 4/accused Nos.5 and 6 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with two sureties for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, petitioner Nos.3 and 4 are permitted to furnish sureties within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing sureties. ii ) Petitioner Nos.3 and 4/accused Nos.5 and 6 shall not indulge in tampering the prosecution witnesses. Due to COVID-19, petitioner Nos.3 and 4 are permitted to furnish sureties within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing sureties. ii ) Petitioner Nos.3 and 4/accused Nos.5 and 6 shall not indulge in tampering the prosecution witnesses. iii) Petitioner Nos.3 and 4/accused Nos.5 and 6 shall not give any threat to the complainant and prosecution witnesses iv) Petitioner Nos.3 and 4/accused Nos.5 and 6 shall mark their attendance in the jurisdictional Police Station on every Monday between 10.00 am and 6.00 pm till disposal of the case.