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2020 DIGILAW 2211 (KAR)

Kariya @ Tejas v. State

2020-11-06

B.A.PATIL

body2020
JUDGMENT B.A.Patil, J. - The present petition has been filed by the petitioneraccused No.1 under Section 439 of Cr.P.C. to release him on bail in Crime No.240/2019 of Hosakote Police Station for the offences punishable under Sections 302 and 201 r/w 34 of Indian Penal Code. 2. I have heard the learned counsel Sri.Sivamanithan S. for the petitioner-accused virtually and the learned High Court Government Pleader Sri.R.D.Renukaradhya for the respondent-State. 3. The gist of the case of prosecution is that on 6.7.2019 the deceased Pawan Kumar, his relative one Sri.Yogesh were together in the place of resident and at about 8.00 p.m. some body called the deceased and deceased said that accused No.1 is calling him and asking him to come near the petrol bunk. At about 9.45 p.m. deceased went on a bike, on the same day late night he called the deceased Pawan Kumar, but he has not replied. On 7.7.2019 the deceased was not found in the said house and after repeatedly trying to reach him to his phone, it was switched off. On 8.7.2019 the complainant along with one Manjunath went near the Gangamma temple at Hosakotedoddmanni Tank Bund at about 10.15 p.m. and there they saw the bike used by the deceased which was parked there and also found the dead body of the deceased Pawan Kumar with grievous injuries on his face and other parts of the body. They found clothes and slipper of the deceased. On the basis of the complaint a case has been registered. 4. It is the submission of the learned counsel for the petitioner that since 1 years the petitioner-accused No.1 is in custody and he is less than 20 years of age. If he has been left in the jail, his career is going to be affected. It is his further submission that there are no eyewitnesses to the alleged incident and the entire case rests on circumstantial evidence. It is his further submission that the case of the prosecution rests on motive, last seen theory and recovery. Insofar as the motive is concerned, it is alleged that the petitioner-accused also used to love CW6. CW6 was not liking the petitioner-accused and in that light, the accused has also given the threat. It is his further submission that the case of the prosecution rests on motive, last seen theory and recovery. Insofar as the motive is concerned, it is alleged that the petitioner-accused also used to love CW6. CW6 was not liking the petitioner-accused and in that light, the accused has also given the threat. But if really a threat has been given to the deceased by accused No.1, then under such circumstances on the call of accused No.1 the deceased going is a suspicious circumstances. It is his further submission that when there is a life threat to the deceased, going there along with accused No.1 itself is contradictory to each other. It is his further submission that the second circumstances on which the prosecution is relying upon is that of last seen theory and in this behalf CW5 has been examined before the Court under Section 164 of Cr.P.C. and the Test Identification Parade has not been conducted, but he has been called to the police station and there he has identified the accused persons for having seen lastly along with the deceased. It is his further submission that no report has been collected during the course of investigation to connect the call details of the petitioneraccused to deceased. It is his further submission that already accused No.2 has been released on bail. On the ground of parity, the petitioner-accused No.1 is also entitled to be released on bail. It is his further submission that the petitioner-accused 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 petitioner-accused No.1 on bail. 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the entire case rests on circumstantial evidence and there are strong circumstances to indicate that the petitioner-accused has been involved in a serious offence which is punishable with death or imprisonment for life. The petitioner-accused No.1 used to love CW6 and she has clearly stated that she was not liking him and even the deceased has also informed CW6 about the threat given to him by accused No.1. The petitioner-accused No.1 used to love CW6 and she has clearly stated that she was not liking him and even the deceased has also informed CW6 about the threat given to him by accused No.1. It is his further submission that CW5 in his statement has clearly stated that he has seen the deceased along with accused Nos.1 and 2 and subsequently he has been found dead and no explanation has been given by the petitioneraccused when they have departed with company of the deceased. In Section 164 of Cr.P.C. statement he has clearly stated about the said fact. It is his further submission that recovery of the knife at the instance of the accused has also been done and CW18 has clearly stated that the knife which has been used has been purchased from his shop. It is his further submission that the pulsar bike which has been taken by the deceased has been identified by CW12 and the said bike has been taken by the deceased. It is his further submission that the post mortem report also clearly indicates that the death is due to shock and hemorrhage as a result of cut throat injury sustained by the deceased. All these circumstances clearly points out to the guilt of the accused. 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 charge sheet material. 7. It is not in dispute that the entire case rests on circumstantial evidence. The first circumstance on which the prosecution is intending to rely upon is that of motive and as could be seen from the statement of CW6 with whom the accused was also intending to love her and deceased was also loving and even the deceased has also informed about the threat given by the accused No.1 in respect of the love affair. That is the matter which has to be considered and appreciated during the course of trial. 8. Even there is strong evidence of last seen theory. CW5 has been examined under Section 164 of Cr.P.C. before the learned Magistrate and in his evidence he has clearly stated that when he was proceeding near the temple, he has seen the deceased, accused Nos.1 and 2 at that particular place and subsequently the deceased has died. 8. Even there is strong evidence of last seen theory. CW5 has been examined under Section 164 of Cr.P.C. before the learned Magistrate and in his evidence he has clearly stated that when he was proceeding near the temple, he has seen the deceased, accused Nos.1 and 2 at that particular place and subsequently the deceased has died. Another circumstances which clearly goes to show that the knife which has been used for the purpose of commission of the offence has been purchased by accused No.1 from CW18 and the same has also been recovered at the instance of petitioner-accused and even the post mortem report clearly goes to show that, death is due to shock and hemorrhage as a result of cut throat injury. Taking into consideration all the circumstances, it clearly points out to the guilt of the accused and accused alone. 9. Though it is contended by the learned counsel for the petitioner-accused that falsely petitioner-accused has been implicated in this case, but no grounds have been made out for what reason he has been falsely implicated in this case. Though it is contended by the learned counsel that when there was a threat to the life of the deceased and on the call of the accused how that he has gone there, that is the matter which has to be considered and appreciated during the course of trial, not at this pre-matured stage. This Court cannot hold a mini trial. There strong circumstances to show the involvement of petitioneraccused in the crime, when prosecution makes out a prima facie case as against the petitioner-accused for having involved in the said crime. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the petitioner-accused has not made out any good grounds so as to release him on bail. Petition is liable to be dismissed and accordingly it is dismissed.