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2020 DIGILAW 1975 (KAR)

Umesh Nagappa Urf Sangappa v. State Of Karnataka

2020-10-01

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by accused No.4 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.157/2019 of Dharwad Rural Police Station, registered for the offence punishable under Sections 120B, 302 and 201 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 27(3) of Arms Act, 1959. 2. It is the case of the prosecution that one Joseph Johnson, s/o Narasimhalu Maithkuri has filed a complaint and he is the brother of the deceased- Shamsundar Devaraj. It is alleged in the complaint that the Shamsundar was working as Accounts Head in Panasonic Company in Bengaluru and he was residing with his wife and children at Bengaluru and he was transferred to Delhi and he went to Delhi. Shamsundar used to visit Dandeli often. On 21.09.2019, Shamsundar came to Dandeli on leave and spent some time with his family members. On 25.09.2019, he was going to Delhi by plane from Hubballi and accordingly, he was proceeding in his car bearing No.KA.01/ML- 6706 and the same was driven by the driver namely Abdul Mutalib Shaikh. At around 09.33 am, the driver of the car telephoned the complainant and informed that when they were proceeding towards Hubballi, 3 persons came on motorcycle by following the car and stopped their car at Salakinakoppa village near Dharwad at an isolated place and the last pillion rider of the motorcycle came near the car along with pistol and fired a bullet on the deceased on the left shoulder of Shamsundar and he sustained grievous injuries and became unconscious and the persons who came on motorcycle went away from the spot on the motorcycle. Thereafter, the complainant told the driver to take Shamsundar to the District Hospital, Dharwad. The driver took Shamsundar to the Hospital for treatment and when they reached the District Hospital, they came to know that Shamsundar was no more and he died on the way to hospital. The complainant filed a complaint against unknown persons and the said complaint came to be registered in Crime No.157/2019 for an offence punishable under Section 302 read with Section 34 of IPC and Section 27(3) of Arms Act. The Investigating officer arrested the accused persons. The petitioner/accused No.4 filed bail application in Crl.Misc. The complainant filed a complaint against unknown persons and the said complaint came to be registered in Crime No.157/2019 for an offence punishable under Section 302 read with Section 34 of IPC and Section 27(3) of Arms Act. The Investigating officer arrested the accused persons. The petitioner/accused No.4 filed bail application in Crl.Misc. No.466/2020 before the learned IV Additional District and Sessions Judge, Dharwad, and the same came to be rejected by order dated 09.09.2020. Therefore, the petitioner is before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioner/accused No.4 and the learned High Court Government Pleader for the respondent-State. 4. It is the contention of the learned counsel for the petitioner that the driver of the car, who saw the 3 persons, who came on motorcycle, has not stated regarding their identity such, fatness, fairness, their height etc. It is his further submission that CW-19 is an alleged eyewitnesses who is running a tea shop near the place of incident and he has identified the said 3 persons in Test Identification Parade held on 31.10.2019 but before the said date, the accused persons were shown to him on 29.09.2019 in police station. Therefore, Test Identification Parade is a farce. It is his further submission that accused Nos.1 to 4 have been taken by the police for investigation to different places on 29.09.2019 and their photographs were taken at the time of preparing panchanama and the said accused were taken to Dandeli, Haliyal and Dharwad. Therefore, the Test Identification Parade held on 31.10.2019 is a farce and the same cannot be taken into consideration. It is his further submission that the overt act of shooting Shamsundar-deceased with pistol is against accused No.1 and there are no overt act alleged against the present petitioner, who is the first pillion rider, who sat between accused Nos.2 and 1 on the motorcycle. It is his further submission that as per the allegation of the prosecution, accused No.2 was riding the bike and accused No.4 was sitting as the first pillion rider and accused No.1 was sitting as the second pillion rider and accused No.1 went near the car and fired with the pistol at Shamsundar and thereafter all the 3 went away on bike. Therefore, there is no specific overt act alleged against the petitioner/accused No.4. Therefore, there is no specific overt act alleged against the petitioner/accused No.4. It is his further submission that charge-sheet has been filed and the petitioner is not required for custodial interrogation. With this, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader contended that there is political rivalry between accused No.3 and the deceased with regard to the election. Shamsundar got ticket to his brother's wife in Municipality election and won the election. Accused No.3 tried to get the ticket for his wife for the same ward, but he did not get the ticket due to the deceased. Therefore, accused No.3 was angry with Shamsundar. It is her further submission that accused No.3 has purchased a country revolver from CW-32's father and trained accused Nos.1, 2 and 4 to fire from the said pistol. It is her further submission that accused No.3 has promised to pay Rs.5,00,000/- to accused Nos.1, 2 and 4. It is her further submission that accused No.3 kept track on the movement of the deceased and intimated the same to accused Nos.1, 2 and 4. It is her further submission that CW-18 is the driver of the car in which the deceased was traveling and he has seen the incident and he identified accused Nos.1, 2 and 4 in Test Identification Parade held on 31.10.2019. It is her further submission that as per the direction of accused No.3, CW-29 gave Rs.10,000/- to accused Nos.1, 2 and 4 after the incident and accused No.3 has returned the money to CW-29 through bank account. It is her further submission that CWs.21, 22 and 24 have spoken regarding animosity. CWs.18 and 19, who are eyewitnesses to the incident, have identified the accused. It is her further submission that the petitioner and accused Nos.1 and 2 are supari killers and if the petitioner is released on bail, he will threaten the complainant and other prosecution witnesses. With this, she 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. 7. As per the charge-sheet, CWs.18 and 19 are eyewitnesses to the incident. CW-19 who is running tea shop near the spot has identified accused Nos.1, 2 and 4 in Test Identification parade held on 31.10.2019. 7. As per the charge-sheet, CWs.18 and 19 are eyewitnesses to the incident. CW-19 who is running tea shop near the spot has identified accused Nos.1, 2 and 4 in Test Identification parade held on 31.10.2019. The police took accused Nos.1, 2 and 4 on 29.09.2019 to different places like Dandeli, Haliyal and Dharwad and taken their photographs. Therefore, the photographs of accused Nos.1, 2 and 4 were available with the police and there are every chances of the police showing them to the witnesses namely CW-19. CW-18 is another eyewitness, who is the driver of the vehicle of the deceased, who has also identified accused Nos.1, 2 and 4 in the Test Identification parade and there are also chances of the police showing the photographs of the accused to CW-18 prior to Test Identification Parade. Even if the presence of the petitioner/accused No.5 is taken into consideration, there is no overt act alleged against him. He was sitting on bike and the overt act alleged is against accused No.1, who fired from the pistol to the deceased and went away on the motorcycle along with accused Nos.2 and 4. Therefore, there is no specific overt act alleged against the petitioner/accused No.4. 8. 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." 9. 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. 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." 10. In the present case, investigation is completed 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. 11. 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 Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.4 shall be released on bail in Crime No.157/2019 of Dharwad Rural Police Station subject to the following conditions: i) The petitioner/accused No.4 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.4 shall not indulge in tampering the prosecution witnesses. iii) The petitioner/accused No.4 shall mark his attendance on every Sunday between 10.00 am and 6.00 pm till the disposal of the case registered against him.