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2020 DIGILAW 956 (KAR)

Harisha @ Daderi v. State

2020-06-03

ASHOK S.KINAGI

body2020
JUDGMENT 1. The learned High Court Government Pleader is directed to accept notice for respondent. 2. The petitioners being aggrieved by the order dated 12.12.2019 passed in S.C.No.1540/2019 by the XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, has filed this criminal petition. 3. The brief facts of the case are that one Mr. Velu Santhosh has lodged a complaint against petitioners and others before Halasur Police Station. The case has been registered in Crime No.172/2019 for the offence punishable under Section 302, 120(b), 34 of IPC. 4. As per the averments made in the complaint that, on the night between 8/9th March 2013, deceased had committed murder of Accused No.1s nephew by name Chandrashekar @ Chandru. Out of the said animosity on 03.06.2019 Accused No.1 along with Accused Nos. 2 to 8 conspired to murder the deceased Prakash @ Kashi and at about 7.50 PM when the deceased came on two wheeler motor cycle with his friend CW.2 and was riding on pillion, CW.1 was waiting near traffic signal at Murphy Town Tamare Kannan Road, Old Madras Road to meet the deceased. Near the traffic, the motor cycle was stopped. There, Accused Nos. 1 to 4 assaulted the deceased with chopper and long on his head and neck and also Accused No.4 stabbed the deceased with a knife on his abdomen. Due to which the deceased succumbed at the spot and died. Petitioners-accused Nos.6 and 7 were standing and guarding at the spot by holding knife in their hands to take care that if anyone comes from deceased side, to attack the said persons and participated in the murder. A friend of the deceased Santhosh, has lodged a complaint before Halasur Police Station. The police after receiving the complaint, have registered a case in Crime No.172/2019 on 03.06.2019 against accused 1 to 4 for the offence punishable under Sections 302, 120B and 34 of IPC. 5. The petitioners filed an application under Section 439 of Cr.P.C., before the trial Court. The trial Court by its order dated 12.12.2019 rejected the application. Hence, this petition. 6. Heard the learned counsel for the petitioners and also learned High Court Government Pleader. 7. The learned counsel for the petitioners submits that names of the petitioners were not shown in the complaint or in the FIR. Subsequently, the charge sheet was filed arraigning the accused-petitioners as accused Nos.6 and 7. Hence, this petition. 6. Heard the learned counsel for the petitioners and also learned High Court Government Pleader. 7. The learned counsel for the petitioners submits that names of the petitioners were not shown in the complaint or in the FIR. Subsequently, the charge sheet was filed arraigning the accused-petitioners as accused Nos.6 and 7. He further submitted that the petitioners were falsely involved in the criminal case and further no overt act is attributed against the petitioners and he further submits that accused No.8 was granted bail in S.C.No.1540/2019 vide order dated 12.12.2019. The present petitioners also stand on the same footing and allegations. He further submits that petitioners are ready to abide by any conditions to be imposed by this Court and hence prays to allow the petition. 8. Per contra, the learned High Court Government Pleader opposes orally and submited that at the time of incident, the petitioners were standing by holding knife in their hands to take care that if anyone from deceased side attack the accused persons and hence participated in the murder. One Bajaj Pulsar motor bike was recovered at the instance of accused No.6. Hence, on this ground he prays to reject the petition. 9. Perused the records. It is seen that at the initial stage when the complaint was lodged against accused Nos. 1 to 4, there was no mention about the action of the petitioners-accused Nos. 6 and 7, their involvement in the said incident and that the Investigating Officer recorded the statement of CWs 1 and 2, who are the eye witnesses, have stated the names of the petitioners-accused Nos.6 and 7 and their involvement in committing the offence. The recorded statement of the witnesses of CWs 1 and 2 have stated that petitioners were holding knife and guarding at the spot. But, this said action of accused Nos. 6 and 7 has not been stated in the complaint and further the names of accused Nos.6 and 7 were not arraigned in the FIR. Only in the subsequent filing of the charge sheet, accused Nos.6 and 7 have been arraigned as accused and that the role of the accused Nos.6 and 7 is only to the extent that they were standing and guarding at the spot by holding knife in their hands to take care that if anyone from deceased side attack the deceased persons. Except this allegation, there was no other allegation as against accused Nos.6 and 7. Investigation has already been completed and charge sheet has been filed. Petitioners are in judicial custody since from 14.06.2019. No purpose would be served if the petitioners are kept in the judicial custody. By imposing stringent conditions, the petitioners are entitled for bail. Accused No.8 was granted bail in S.C.No.1540/2019 vide order dated 12.12.2019. The present petitioners are also standing on the same footage of the allegations as against accused No.8. The petitioners are also entitled for bail on parity. 10. Keeping in view the nature of the offences, the statement on record regarding the complicity of the petitioners, larger mandate of Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the court is of the view that the petitioners have made out a case for bail. 11. Accordingly, this petition is allowed. The petitioners are enlarged on bail in connection with Crime No.172/2019 (S.C.No.1540/2019) pertaining to Halasur police station for the offences punishable under Section 302, 120(b) read with Section 34 of I.P.C and under Section 25(1)(B) (b) of Arms Act 1959 on the following conditions: a) Petitioners/accused Nos.6 and 7 are ordered to be enlarged on bail on furnishing a bond in a sum of Rs.2,00,000/- (Rupees Two Lakh only) each, with two sureties each for the likesum to the satisfaction of the trial court. b) Petitioners shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses during the trial. c) Petitioners shall cooperate in the trial sincerely without seeking any adjournment. d) Petitioners shall not indulge in any criminal activities or commission of any crime after being released on bail. e) Petitioners shall not leave the jurisdiction of the court without prior permission.