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2020 DIGILAW 2147 (KAR)

Abhishek @ Bhanuprakash v. State Of Karnataka

2020-11-02

B.A.PATIL

body2020
JUDGMENT B.A.Patil, J. - The present petition has been filed by the petitioneraccused No.2 under Section 439 of Cr.P.C. to release him on bail in Crime No.31/2018 of Electronic City Police Station for the offences punishable under Sections 302, 120B R/w Section 34 of Indian Penal Code (pending on the file of Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru). 2. I have heard the learned Senior Counsel Sri.Hashmath Pasha for Nasir Ali for the petitioner-accused and the learned High Court Government Pleader Sri.R.D.Renukaradhya for the respondent-State. 3. The gist of the complaint is that on 21.2.2018 at about 9.20 a.m. when the deceased Suresh along with his brother Sai Kumar and nephew Shivaji were watching to catch a bus in Electronic City area, the accused persons who were traveling in a bus saw them and immediately alighted from the bus with an intention to commit the murder of the deceased. It is alleged that there were several cases registered as against each other and they have fallen out while splitting the effects of committing dacoity and also on account of suspicion that each provided information to police about the other on account of which they were arrested on several occasions. It is further alleged that on 21.2.2018 the accused persons chased the deceased and his two companions. Due to fear, the deceased entered into a BMTC bus. The accused persons went inside the bus and they have assaulted the deceased with a small long and knives, because of the stab injuries, the deceased succumbed to the injuries. On the basis of the complaint a case has been registered. 4. It is the submission of the learned Senior Counsel for the petitioner that though the alleged incident has been informed to the police on 21.2.2018 at about 9.20 a.m. and has visited the spot, he has not got registered the FIR. He visited the place and thereafter he shifted the body to St. Johns hospital and at that time also he has not conducted the inquest mahazar. It is his further submission that PW15 the driver of BMTC bus and CW.16 the conductor of the bus went and informed about the said incident to the police and at that time also no case has been registered. Johns hospital and at that time also he has not conducted the inquest mahazar. It is his further submission that PW15 the driver of BMTC bus and CW.16 the conductor of the bus went and informed about the said incident to the police and at that time also no case has been registered. It is his further submission that CW2 went and informed the police, but that information has also not been treated as a complaint, only when the son of the deceased visited the police station, at that time, on suspicion a case has been registered as against six persons. It is his further submission that not registering the case and subsequently after investigation of some part, registering the case itself creates a doubt in the case of the prosecution and the first information report itself is a questionable one. It is his further submission that when the inquest mahazar has been drawn and the post mortem has been conducted, at that time also the statement of the witnesses has not been recorded. It is his further submission that even in the case diaries recorded by the Investigating Officer on 5.6.2018, there is no reference of recording of the statement of the eyewitnesses Cws.2, 15 and 16. It is his further submission that CW.2 Muni Raju has not mentioned identity of the persons who entered into the bus and assaulted the deceased. It is his further submission that no suo-motu complaint has been registered by the Investigating Officer when he came to know that a cognizable offence has been taken place. It is his further submission that earlier CWs.2, 15 and 16 were considered as an eyewitness, only after sometime CWs.12 and 17 the co-brothers have been included as an eyewitness to the alleged incident. It is his further submission that the statement of the witnesses have been modulated in accordance with convenience to facilitate the case of the prosecution. It is his further submission that the requisition has been given for the purpose of identification of the accused on 14.6.2018, but as per the statements of the eyewitnesses they have identified the accused on 10.6.2018 itself and their further statement has been recorded stating the same. It is his further submission that bona-fide of the investigation has also challenged in this behalf. It is his further submission that bona-fide of the investigation has also challenged in this behalf. It is his further submission that when the remand application filed before the Court, nothing was revealed regarding recording of the statement of the eyewitnesses and subsequently the police have came up with a statement of the eyewitnesses said to have been recorded by the Investigating Officer. When there is no reference made in the remand application regarding the statement of the eyewitnesses and eyewitnesses recorded in this behalf, then under such circumstances, modulating and recording to be made out by the police cannot be ruled out. It is his further submission that under the similar facts and circumstances, the Co-ordinate Bench by upholding the said law has released the accused on bail. The petitioneraccused is an innocent person and the police have falsely implicated him in this case. It is his further submission that in four more cases he has been falsely implicated and in all those cases he has been enlarged on bail. He is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioneraccused No.2 on bail. 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the petitioner-accused No.2 is a habitual offender and as many as four cases have been registered. It is his further submission that the complaint has been got registered immediately when the son of the complainant came and informed and at that time also CW2 was present in the police station and immediately thereafter the statement of the eyewitnesses has been recorded. It is his further submission that the alleged incident has taken place in BMTC bus and CWs.12, 15, 16 and 17 are the eyewitnesses who have seen the accused persons brutally committed the alleged offences. The charge sheet has been already filed and all the materials indicate that the petitioner-accused has been involved in the heinous offence which is punishable with death or imprisonment for life. It is his further submission that during the course of investigation CCTV footage has also been taken and it indicates that the movements of the accused has been recorded in the CCTV footage. It is his further submission that during the course of investigation CCTV footage has also been taken and it indicates that the movements of the accused has been recorded in the CCTV footage. If the petitioner-accused is released on bail, being a habitual offender, again he may indulged in similar type of criminal activities. On these grounds he prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 7. It is the case of the prosecution that with earlier animosity the accused persons by seeing the deceased jumped out of the bus and chased and when the deceased entered into the bus they also entered and committed the murder. On perusal of the records it clearly indicates that the Investigating Officer has visited the place of incident at about 9.20 a.m. on 21.2.2018. The records also indicate that CW.15 and CW.16, the driver and the conductor of the bus respectively along with CW.2 have visited the Police Station and the case has been registered. Though it is contended by the learned HCGP that the statement of the witnesses have been recorded by the Investigating Officer, on perusal of the statements, nowhere it indicates that the report has been submitted to the court while submitting the case diary for having recorded the statements of the eye witnesses and with regard to conducting of Test Identification parade. Even as could be seen from the records, the request was made for conducting the Test Identification parade on 14.6.2018 and the learned Magistrate has sanctioned the same on 15.6.2018. But the statements of the witnesses go to show that it has been conducted on 10.6.2018 itself and in that light, there is some doubt with regard to conducting of Test Identification during investigation and the details of the statement of the eye witnesses for having seen the alleged incident. When the entire material creates some doubt in the case of the prosecution, then under such circumstances, I am of the considered opinion that by imposing some stringent conditions, if the petitioner-accused No.2 is ordered to be released on bail, it would meet the ends of justice. 8. When the entire material creates some doubt in the case of the prosecution, then under such circumstances, I am of the considered opinion that by imposing some stringent conditions, if the petitioner-accused No.2 is ordered to be released on bail, it would meet the ends of justice. 8. Though it is contended by the learned HCGP that accused No.2 is a habitual offender and he has been indulged in four cases, it is the submission of the learned Senior Counsel that the petitioner-accused No.2 has already been enlarged on bail in respect of those cases. Even in so far as CCTV footages and other material are concerned, which have to be proved in accordance with law during the course of trial. Under the aforesaid facts and circumstances of the case, the petition is allowed and accused No.2-petitioner herein is enlarged on bail in Crime No.31/2018 of Electronic City Police Station for the offences punishable under Sections 302, 120B R/w Section 34 of Indian Penal Code (pending on the file of Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, subject to the following conditions:- i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court. ii) He shall be regular in appearing before the trial Court till the trial is completed. iii) He shall not tamper with the prosecution evidence in any manner. iv) He shall mark his attendance before the jurisdictional police once in fifteen days between 10.00 a.m. and 5.00 p.m. till the trial is concluded. v) He shall not leave the jurisdiction of the trial Court without prior permission. vi) If he violates any one of the conditions imposed by this Court, the bail is liable to be cancelled.