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2020 DIGILAW 2303 (KAR)

Kirankumar v. State of Karnataka

2020-11-25

B.A.PATIL

body2020
ORDER : B.A. Patil, J. 1. The present petition has been filed by the petitioner-accused 1 under Section 439 of Criminal Procedure Code, 1973 to enlarge the petitioner on bail in Crime No. 124/2020 of Doddapete Police Station (in S.C. No. 87/2020 on the file of III Additional Sessions Judge, Shivamogga), for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860. 2. I have heard the learned Counsel Sri P.P. Hegde, for petitioner-accused 1 and learned High Court Government Pleader Sri R.D. Renukaradhya, for respondent-State. 3. The gist of the case of the prosecution in brief is that accused 1 and 2 along with deceased Manohar Shetty participated in Shivamogga Mahanagara Palike. Deceased Manohar Shetty canvassed in favour of congress party. Accused 1 to 4 made a propaganda in favour of BJP party and the BJP candidate was elected, subsequently the deceased after consuming alcohol used to scold accused 1 and 2. About two months prior to the alleged incident under the smart city plan, some stones were laid to the culverts, accused 1 and 2 and their friends have taken out the said slab stones meant for culverts and temple and used them for their houses instead of using it for the temple. The deceased obstructed the same by telling that they have to be used for the temple and in that light of animosity between accused 1 and 2 and the deceased, they conspired with accused 3 and 4 to be done away with the life of the deceased. In that light, accused 2 prepared and purchased two longs and kept them in his house. When lock down was cleared on 4-5-2020, the wine stores were opened and the deceased was indulging in consuming alcohol, observing the same on 5-5-2020 accused 1 and 2 called accused 3 and 4 in the evening and were observing the movement of the deceased. At about 8.00 p.m., when the deceased was proceeding in Bharathi Colony, 2nd Cross, accused 2 went to the house and brought the iron longs and accused 1 and 3 went on Bajaj Pulsar bike a vehicle bearing Registration No. KA.14 EE 9881 and accused 2 and 4 went on Hero Honda Splendor Bike bearing Registration No. KA.14 X-338. At about 8.00 p.m., when the deceased was proceeding in Bharathi Colony, 2nd Cross, accused 2 went to the house and brought the iron longs and accused 1 and 3 went on Bajaj Pulsar bike a vehicle bearing Registration No. KA.14 EE 9881 and accused 2 and 4 went on Hero Honda Splendor Bike bearing Registration No. KA.14 X-338. At about 8.45 p.m. on seeing the deceased sitting on the cutta of Veerabhadreshwara Stores, accused 1 and 2 scolded him by saying that only because of his intervention they have been troubled and if he dies, they won't be having any further troubles. In that light they assaulted him with the long on his face, neck and other parts of the body and after seeing people coming, they fled away from that place on their vehicles. Subsequently, the deceased was taken to KMC hospital and there they advised that he is not likely to survive and subsequently he was shifted to Mo. Gann Hospital and on 24-5-2020 he died. Thereafter, an investigation was conducted and a charge-sheet has been filed. 4. It is the submission of the learned Counsel for the petitioner-accused that the alleged incident has taken place on 5-5-2020 and the deceased died on 24-5-2020. He died after 20 days. It is his further submission that the prosecution's material demonstrates that there is an inconsistency in the case of the prosecution. In the first instance a case has been registered under Section 307 of IPC and at that time only accused 1 and 2 have been shown and subsequently when the charge-sheet has been filed it indicates four accused are involved in the said crime. It is his further submission that the medical records which have been produced by Kasturba Hospital, Manipal, indicate that the deceased was discharged against the medical advice given to him. If he had been given a proper treatment, then under such circumstances he could not have died due to the injures. It is his further submission that he has been got discharged from the hospital against the medical records. The postmortem report does not contain any opinion on the cause of death. It is his further submission that the death has taken place after 20 days after the incident and the deceased has also got discharged against the medical advice. It is his further submission that he has been got discharged from the hospital against the medical records. The postmortem report does not contain any opinion on the cause of death. It is his further submission that the death has taken place after 20 days after the incident and the deceased has also got discharged against the medical advice. All these material demonstrates that the petitioner-accused had no intention to cause the death. In that light, at the most the said offence may fall within the category of Section 304, Part I or Part II of IPC. In this behalf he relied upon the decision of Division Bench of this Court in the case of Riaz-Ul-Huck v. State of Karnataka, Azad Nagar. Police Station, Davanagere, in Criminal Appeal No. 593/2011, dated 18-2-2014. It is his further submission that he is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties as well. On these grounds he prayed to allow the petition and release the petitioner-accused on bail, 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the material placed on record clearly goes to show that there was animosity between the deceased and all the accused. Accused 1 and 2 had made a propaganda in respect of BJP party and the deceased in favour of congress party. The deceased used to abuse, in that light the accused persons were intending to be done away with his life. Accused 2 then prepared and bought two longs and kept the same in his house and on the alleged date of incident they observed the movement of the deceased and at about 8.45 p.m. along with accused 3 and 4, they went to the place where the deceased was sitting and have assaulted him with lethal weapons and caused him injuries. C.Ws. 2 and 6 are the eye-witnesses to the alleged incident and even the weapons used. Two vehicles which were used for the purpose of committing the offence and also the bloodstained clothes of the deceased have been recovered at the instance of the accused. It is his further submission that there is ample material against the petitioner-accused for having involvement in the said crime. On these grounds he prayed to dismiss the petition. 6. Two vehicles which were used for the purpose of committing the offence and also the bloodstained clothes of the deceased have been recovered at the instance of the accused. It is his further submission that there is ample material against the petitioner-accused for having involvement in the said crime. 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 not disputed that the deceased has been assaulted on 5-5-2020 and subsequently he died on 24-5-2020. As per the charge-sheet C.Ws. 2 and 6 are the eye-witnesses and the charge-sheet material also goes to show that there was a strong motive for the alleged crime. Since the elections, the parties used to quarrel with each other and subsequently when the slab stones were taken by the accused person, there was a galata between the deceased and accused. Accused 2 then prepared to be done away with the life of the deceased, purchased two longs and kept it in his house. Subsequently, accused 1 and 2 have assaulted the deceased with long when he was sitting on the cutta of Veerabhadreshwara stores. 8. It is the specific contention of the learned Counsel for the petitioner-accused 1 that the alleged incident has taken place on 5-5-2020 and the deceased died on 24-5-2020. The records indicate that the deceased has been discharged from the hospital against the medical advice and the cause of death is not due to the assault, but because of the medical negligence as against the medical advice and in that light it is his specific contention that the provisions of Section 304, Part I or Part II of IPC is attracted. 9. No doubt a Division Bench of this Court has taken a view that in the said case the provisions of Section 304, Part II of IPC is applicable, but that is the matter which has to be considered and appreciated during the course of trial. 9. No doubt a Division Bench of this Court has taken a view that in the said case the provisions of Section 304, Part II of IPC is applicable, but that is the matter which has to be considered and appreciated during the course of trial. At this prematured stage this Court cannot hold a mini trial while discussing about the grant of bail and come to any conclusion, that too when there is strong material produced before the Court to show that there was a strong motive for the alleged incident along with evidence of preparation for commission of the offence and two eye-witnesses who have spoken with regard to the overt acts of each of the accused persons. Court cannot go to ascertain whether the assault is first for the cause of death or subsequent intervening cause. Under such circumstances, I am of the considered opinion that it is not a case to release the petitioner-accused on bail at this juncture and the petitioner-accused has not made out any good grounds to release him on bail. The petition is liable to be dismissed and accordingly it is dismissed.