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2022 DIGILAW 1141 (KAR)

Dnyaneshwar v. State of Karnataka

2022-09-02

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT 1. This appeal has been filed by accused Nos.1 and 2 challenging the order dtd. 20/4/2022 passed in Spl.C . No.24/2022 by the II Additional District and Sessions Judge, Bagalkot, whereunder the bail application of the appellants/accused Nos.1 and 2 sought in Crime No.6/2022 of Lokapur Police Station registered for the offences punishable under Sec. 302 read with 34 of the Indian Penal Code (hereinafter referred to as 'IPC', for brevity) and Sec. 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention o f Atrocities) Act, 1989 (hereinafter referred to as 'SC & ST (POA) Act' , for brevity), came to be rejected. 2. *** 3. Heard learned counsel for the appellants, learned High Court Government Pleader for respondent No.1/State . Inspite of service of notice , respondent No .2 has not appeared either in person or through counsel. 4. The case of the prosecution is that, one Subhash has lodged the complaint on 12 .01.2022 at 14.30 hours stating that accused No .1 is a sugarcane cutting gangman, accused No.2 is the brother and accused No.3 is his nephew. About two years back, deceased had taken advance of Rs.1 ,60,000.00 from accused No .1 stating that he will engage himself in his sugarcane cutting gang, but he did not attended the work nor repaid the advance amount. Thereafter, in the year 2021-22 the complainant, his wife and the deceased along with CW-10 and 11 were working in the sugarcane cutting gang of accused No.1 by putting a shed in the land bearing R.S. No .20 belonging to CW-15 . During this period, accused No .1 demanded the deceased to repay the advance amount but the deceased went on postponing the same stating that he will refund by working in his gang. During this period, accused No .1 demanded the deceased to repay the advance amount but the deceased went on postponing the same stating that he will refund by working in his gang. That on 11.01 .2022 at about 11.00 p.m., in the land bearing survey No .17 belonging to CW-15 situated at Laxanatti village within the jurisdiction of Lokapur Police Station, all the accused and deceased were talking each other , at that time , accused No.1 demanded the deceased to repay the advance amount, for which, the deceased stated that he will not repay the amount, getting enraged by the same , accused No.1 assaulted the deceased with a stick lying over there , accused No .2 assaulted with the sugarcane and accused No.3 assaulted with hands and thereafter, they took the in jured in a tractor and laid him near his shed and on the same day he died at about 1.05 a.m. The father of the deceased who heard noise of his son near the shed, he along with his wife went outside and found his son lying with in juries. The father o f the deceased saw accused No.1 nearby and asked accused No.1 , but he ran away stating that he did not assault. The inured was not in a position to talk, he asked for water , with difficulty he in formed that the accused have assaulted him as he did not returned the money and a fter sometime he died. The Investigating O f ficer a fter completing investigation has filed the charge sheet against accused Nos.1 to 3 for the offences punishable under Ss. 302 read with 34 of IPC and Sec. 3(2)(va) of SC and ST(POA) Act. Accused Nos.1 and 2 have filed bail application in Spl.C .No .24/2022 and the same came to be re jected by the impugned order dated 20 .04.2022. The appellants have challenged the said order in the instant appeal. 5. Learned counsel for the appellants/accused Nos.1 and 2 would contend that the alleged incident has occurred on 11/1/2022 at about 11.00 p.m and the complaint came to be filed in next day at 2.30 p.m. and there is a delay in filing the complaint. Accused No.3 who is similarly placed to that o f appellants, has been granted bail by the Trial Court. Accused No.3 who is similarly placed to that o f appellants, has been granted bail by the Trial Court. There are no eyewitnesses to the alleged incident and case of the prosecution is based on circumstantial evidence . The case of t he prosecution is based on dying declaration, made by the deceased before his father, mother, CWs-10 and 12. The in juries noted by the doctor are all contusion injuries as per the case of the prosecution itself there is no preparation, it is under grave and sudden provocation and attracts the offence punishable under Sec. 304-II of IPC . The appellants tried to save the in jured by shifting him in tractor . There was no any quarrel prior to the incident and deceased was working under accused No.1 . As the charge sheet is filed, the appellants are not required for any custodial interrogation. Without considering all these aspects, the learned Sessions/Special Judge has passed the impugned order which requires interference by this Court. With this, he prayed to allow the appeal. 6. Per contra, learned High Court Government Pleader would contend that there is a dying declaration made by the deceased be fore his father, mother , CWs-10 and 12. It is his further submission that the stick and sugarcane piece have been recovered from the instance o f accused Nos.1 and 2 . There is a statement of CW-10 recorded under Sec. 164 of Cr.P.C ., which discloses dying declaration made by the deceased be fore him. The doctor who conducted post mortem examination over the dead body of the deceased has noted that the in juries are caused by application o f blunt force and the opinion regarding cause of death is kept pending. The appellants are the residents of Maharashtra and if they are granted bail, they may abscond and not available for trial. Considering all these aspects, the learned Sessions/Special Judge has re jected the bail application of these appellants, which does not call for any interference by this Court. With this, he prayed to dismiss the appeal. 7. Having regard to the arguments advanced by learned counsel for the appellants and learned High Court Government Pleader for respondent No .1-State , this Court has gone through the charge sheet records and the impugned order. 8. With this, he prayed to dismiss the appeal. 7. Having regard to the arguments advanced by learned counsel for the appellants and learned High Court Government Pleader for respondent No .1-State , this Court has gone through the charge sheet records and the impugned order. 8. The accusation against appellants/accused Nos.1 and 2 is that they demanded repayment of advanced money from the deceased and he did not repay and therefore accused No .1 assaulted with club lying there , accused No.2 assaulted with sugarcane piece lying there and accused No.3 assaulted with hands and caused in juries and they took the in jured to his shed in tractor of CW-12 , where he succumbed to the injuries. There are no eyewitnesses to the incident and case of the prosecution is based on circumstantial evidence . There is dying declaration said to be made by the deceased be fore his father(complainant), mother(CW-8), the driver of tractor(CW-12) and neighbour (CW-10). Apart from that, there is a recovery of one stick at the instance of accused No.1 and one piece of sugarcane at the instance of accused No .2 . The doctor has noted that all the injuries are contusion and caused by application of blunt force . The case of the prosecution is based on circumstantial evidence. The prosecution has to establish each o f the circumstances at the trial. Merely because appellants are the residents o f Maharashtra is not a ground to reject their bail application. As the charge sheet is filed, appellants are not required for any custodial interrogation. Without, considering all these aspects learned Sessions/Special Court has passed the impugned order which requires interference by this Court. The apprehension of the prosecution is that if appellants/accused Nos.1 and 2 are granted bail, they may abscond and not available for trial and threaten the prosecution witnesses, can be met with by imposing stringent conditions. 9. Therefore in the facts and circumstances of the case , this Court is of the view that there are valid grounds for setting aside the impugned order and granting bail to the appellants/accused Nos.1 and 2, sub ject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The appeal is allowed. The impugned order dtd. 20/4/2022 passed in Spl.C . No.24/2022 by the II Additional District and Sessions Judge , Bagalkot, is set aside . Hence, I proceed to pass the following: ORDER The appeal is allowed. The impugned order dtd. 20/4/2022 passed in Spl.C . No.24/2022 by the II Additional District and Sessions Judge , Bagalkot, is set aside . Consequently, appellants/accused Nos.1 and 2 are ordered to be released on bail in Crime No.6/2022 of Lokapur Police Station (pending in Spl.C .No .24/2022), subject to the following conditions: i. The appellants shall execute a personal bond for a sum of Rs.1,00,000.00 (Rupees One Lakh Only) each with one surety for the likesum to the satisfaction o f jurisdictional Court. ii . The appellants shall not indulge in tampering the prosecution witnesses. iii . The appellants shall attend the Court on all the dates of hearing, unless exempted, and co-operate in speedy disposal o f the case . iv. The appellants shall mark their presence before the jurisdictional Police on every first Sunday of every month between 10:00 a.m. to 06:00 p.m., till disposal of the case registered against them.