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2020 DIGILAW 691 (KAR)

Veeresh Dhanaju Nayak v. State Of Karnataka

2020-03-10

K.SOMASHEKAR

body2020
JUDGMENT K. Somashekar, J. - This is a successive bail petition filed by the petitioner - accused No. 1 under Section 439 of Cr.P.C. in Crime No. 81/2018 of Jalanagar Police Station, Vijayapura District for alleged offences punishable under Sections 323, 498-A, 302 read with Section 34 IPC. The petitioner is said to be in judicial custody since the date of his arrest. In view of further developments, the petitioner/Accused No. 1 has filed this petition seeking to be released on regular bail. 2. Heard the learned Senior counsel Shri Hashmath Pasha appearing for the petitioner - Accused No. 1 and the learned HCGP for the State. Perused the records. 3. The brief facts of the prosecution case is as under: The petitioner is the husband of the deceased Shobha. Their marriage was performed on 22.01.2016. However, after marriage, it is stated that the accused persons were ill-treating and harassing the deceased Shobha for not begetting children. On the date of the incident, i.e., on 14.07.2018, it is alleged that all the accused persons had kicked and stamped on the abdomen of the deceased, leading to her death. Hence, the said Shobha died in her matrimonial home as on 16.07.2018. Thereafter, the matter was reported to the police and initially the case was registered under Sections 498(A) and Section 306 IPC. However, on securing the opinion as regards the cause of death, charge under Section 302 IPC was incorporated and charge-sheet has been laid against accused nos. 1 to 3. Accused Nos. 2 and 3 who are the parents of accused no. 1, however have been released on bail by the Sessions Judge. Subsequent to registration of the crime against the accused, the Investigating Officer proceeded with the investigation of the case and during the course of investigation, he had recorded the statement of witnesses and also conducted mahazar in the presence of panch witnesses and laid charge-sheet against the accused before the committal court in C.C. No. 103/2018. On earlier occasions, the petitioner had filed petitions seeking to be released on bail before this court. Crl. P. No. 201238/2018 came to be dismissed on 22.11.2018 while Crl. P. No. 200423/2019 came to be dismissed by order dated 8.4.2019. On earlier occasions, the petitioner had filed petitions seeking to be released on bail before this court. Crl. P. No. 201238/2018 came to be dismissed on 22.11.2018 while Crl. P. No. 200423/2019 came to be dismissed by order dated 8.4.2019. Hence, the petitioner has come up before this court by way of the present petition seeking grant of regular bail in view of the fact that trial has not yet commenced in the case. 4. The learned Senior Counsel for the petitioner contends that the present petition has been filed due to changed circumstances and fresh grounds. He contends that the entire case is based on circumstantial evidence and there are many missing links which are visible ex-facie and go to the root of the matter and shake the very substratum of the case of the prosecution. In that, he contends that the cause of death given in the Post-mortem report is not clear. Initially though the case was registered for offence under Section 306 IPC, only based on the opinion given in the P.M. report, the offence has been shifted to that of Section 302 IPC. He contends that the medical opinion being faulty and not clear, the Investigating Officer had himself sought for a medical opinion again regarding the cause of death. Questions as regards how the injury was caused and why and how actually the said Shobha died were all queries which were again asked to the Doctor as the first P.M. report was not clear. He contends that the said fact itself goes to show that the medical opinion given in the P.M. report was not clear, which casts a serious doubt on the medical opinion itself. Further, the very complaint which was filed reveals that the deceased was not keeping well very often and two days prior to her death as well, she was not keeping well. There was also no injury found in the inquest report, which further adds to the existing doubt about the manner and the cause of death. The allegations as regards cruelty also do not appear to be grave in nature. There was also no injury found in the inquest report, which further adds to the existing doubt about the manner and the cause of death. The allegations as regards cruelty also do not appear to be grave in nature. He contends that the first petitioner and the deceased led a happy marital life and the medical report dated 14.07.2018 revealed that the deceased was pregnant and there was no reason for the accused to ill-treat her on the ground that she could not give birth to children and hence the death of the deceased is unfortunate and has come as a shock to the petitioner and his parents. Further, though investigation is complete and charge-sheet is filed, the trial of the case has not yet commenced in this case. The case though is committed, it is not even numbered as a Sessions Case and the case is presently in the Committal Court itself. Hence, there is no hope that the trial would commence in the case. Hence, the learned counsel submits that the petitioner is languishing in jail without trial. Further, the learned counsel contends that when the co-accused, namely Accused Nos. 2 and 3 who have equally participated in the alleged crime, have been extended the benefit of bail on the ground that the veracity of the allegation against them requires to be tested during trial, the present petitioner also be extended the benefit of bail. Hence, the learned counsel for the petitioner prays that the petitioner also be released on bail in view of the changed circumstances and on the ground of parity. Further it is contended that the petitioner hails from a respectable family and a law abiding citizen and that he is ready to abide by any terms and conditions imposed by this Court. On these grounds, the learned counsel prays for grant of bail to the petitioner. 5. Per contra, learned HCGP for the State by reiterating complaint averments, contends that the opinion as to the cause of death reveals that the death was due to haemorrhage and shock secondary to blunt injury to vital organs (kidney). Thus, it reveals that this injury to kidneys must have been caused due to kicking or stamping the abdomen of deceased forcefully. Hence, he contends that the allegation being serious in nature, petitioner/accused does not deserve grant of bail. Thus, it reveals that this injury to kidneys must have been caused due to kicking or stamping the abdomen of deceased forcefully. Hence, he contends that the allegation being serious in nature, petitioner/accused does not deserve grant of bail. Therefore he seeks for dismissal of this successive bail petition. 6. Keeping in view the contentions of the learned counsel for the petitioner as well as the learned HCGP, it is relevant to state that charge-sheet has been laid against the accused and the accused is required to face trial. The accused is in judicial custody since the date of his arrest. Further, it is specifically stated that the Investigating Officer has already laid the charge-sheet against the accused for the aforesaid offences. The said charge-sheet consists of the statement of the witnesses and so also the mahazar said to be conducted in the presence of panch witnesses. However, the case is still with the Committal Court and it has not been assigned a number in the Sessions Court for commencement of trial and there is no hope that the trial would be conducted in the near future. Therefore, the material collected by the Investigating Officer is enough material to lay the charge-sheet against the accused. But the material collected by the Investigating Officer cannot be said to be enough material to decline the relief of bail as sought for by the accused due to developmental circumstances. Though the petitioner was rejected bail on earlier occasions, now, in view of the fact that the veracity of the allegations against the accused requires to be tested during trial, and also due to the fact that accused nos. 2 and 3 have been enlarged on bail, I find it appropriate to enlarge the present petitioner as well on bail. The Honble Apex Court in the case of Babu Singh and Ors. v. State of Uttar Pradesh ( AIR 1978 SC 527 ) , has held thus: 'Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this, Court on September 7, 1977. Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this, Court on September 7, 1977. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further, developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are, barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over turning an earlier negation. In this view, we entertain the application and evaluate the merits pro and con.' In view of the above decision of the Apex Court as well, I am of the opinion that the petitioner ought to be extended the benefit of bail in view of the fact that realism is a component of humanism which is the heart of the legal system. Whereas, the learned HCGP submits that if the accused is supposed to be released on bail, certainly he would come in the way of prosecution case and destroy the evidence. This apprehension expressed by the learned HCGP could be curtailed by imposing suitable conditions to safeguard the interest of the prosecution. 7. Therefore, for the aforesaid reasons and as well as the facts and circumstances of the case, I am of the considered opinion that the petitioner deserves to be granted bail. Accordingly, I proceed to pass the following: ORDER The petition filed by the petitioner - Accused No. 1 under Section 439 of Cr.P.C. is hereby allowed subject to the following conditions: i) Petitioner - Accused shall execute a self-bond in a sum of Rs. 2,00,000/- with a likesum surety to the satisfaction of the Trial Court in C.C. No. 103/2018 (arising out of Cr. No. 81/2018 of Jalanagar PS); ii) Petitioner/accused shall appear before the court of law on all dates of hearing without fail; iii) Petitioner/accused shall not indulge in any criminal activities henceforth; iv) Petitioner - accused shall not leave the jurisdiction of the Vijayapura District without prior permission from the competent court of law; v) Petitioner - accused shall not tamper or hamper with the case of the prosecution witnesses; If the petitioner violates any of the conditions, the bail order shall automatically stand ceased.