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2022 DIGILAW 1356 (KAR)

Bhimappa v. State of Karnataka

2022-10-13

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT Shivashankar Amarannavar, J. - This appeal is filed by accused No. 1 challenging the order dated 15.3.2022 passed by the learned III Additional District and Sessions Judge, Belagavi, in Criminal Miscellaneous No. 144/2022 filed under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in respect of Raibag Police Station Crime No. 296/2021 registered for the offences punishable under Sections 143, 144, 147, 148, 120B, 302, 341, 363 and 201 read with Section 149 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 3(2)(V) & (Va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC & ST Act', for brevity). 2. Heard the learned counsel for the appellant/accused No. 1 and the learned High Court Government Pleader for respondent No. 1/State. Respondent No. 2/complainant in spite of service of notice has remained absent and unrepresented. 3. The case of the prosecution is that, one Smt. Savita W/o. Arjun Megade has filed complaint against four unknown persons stating that accused No. 1/Bhimappa is a resident of Gosabal Village of Gokak Taluk, he is a mason by occupation, he has two wives namely Laxmi and Bharati. The first wife has two children and second wife has a son. Accused No. 1 along with two wives and children was staying separately in a rented house in Bendawad Village at about four years ago. At that time the deceased Arjun Maruti Megade of same Bendawad Village has developed an illicit relationship with Bharati the second wife of accused No. 1. Accused No. 1 returned home so early from work whereby he saw the deceased Arjun and his wife together in the house. He tried to catch the deceased but he fled away from the spot. When the villagers of Bendawad became aware of such illicit relationship, accused No. 1 has left the said Village and began to stay with his family in Gosabal Village. But, the deceased Arjun began stalking accused No. 1's wife (Bharati) in Gosabal Village also. As a result, accused No. 1 became enraged and he made a criminal conspiracy with accused Nos. 2 to 6 to eliminate the said Arjun. But, the deceased Arjun began stalking accused No. 1's wife (Bharati) in Gosabal Village also. As a result, accused No. 1 became enraged and he made a criminal conspiracy with accused Nos. 2 to 6 to eliminate the said Arjun. That on 03.12.2021 at about 11:00 a.m. when the said deceased Arjun who was a milk vendor was proceeding on a two wheeler bearing Registration No. KA-23/EM-4791 from Katakabhavi to Mantur. The accused Nos. 1, 2, 4 and 5 have intercepted him near the land of Govindrao Appasaheb Desai on Mantur-Katakabhavi tar road within the limits of Mantur Village and amongst them, the accused No. 1 heavily assaulted on the head of the said Arjun with iron rod and when the said Arjun lost his consciousness and collapsed, the said accused carried him in a TATA Indigo car bearing Reg. No. KA-48/M-1286. It is on the way the said Arjun succumbed to the injuries in the car itself. The said accused Nos. 1, 2, 4, 5 and 6 threw his body in a big water canal near Mahanteshwar Math in Mannikeri Village. As per the plan hatched by them, the accused No. 3 who is relative of accused No. 1 and resident of Bendawad Village was giving information about the movements and location of the deceased Arjun and accused No. 6 was standing near the big canal in Mannikeri watching the public to ensure that nobody should be there at the time of throwing the dead body in the said canal. The deceased Arjun belongs to Hindu Madar caste and accused Nos. 1, 5 and 6 belong to Hindu Lingayat, accused No. 2 belongs to Hindu Kshatriya and accused No. 4 is Hindu Waddar by caste. It is alleged that accused Nos. 1 to 6 have committed the murder of Arjun Megade as he developed illicit relationship with the second wife of accused No. 1. The said case came to be registered in Crime No. 296/2021 of Raibag Police Station for the offences punishable under Sections 323, 341, 363 read with Section 34 of IPC against the unknown persons. During the course of investigation, Police arrested accused Nos. 1, 4 and 6 on 04.12.2021 and recorded their voluntary statements. Thereafter, based on the said voluntary statements, accused Nos. 2 and 5 were arrested on 28.12.2021. The Investigating Officer after completing the investigation filed the charge sheet against accused Nos. During the course of investigation, Police arrested accused Nos. 1, 4 and 6 on 04.12.2021 and recorded their voluntary statements. Thereafter, based on the said voluntary statements, accused Nos. 2 and 5 were arrested on 28.12.2021. The Investigating Officer after completing the investigation filed the charge sheet against accused Nos. 1 to 6 for the offences punishable under Sections 143, 144, 147, 148, 120(B), 302, 341, 363, and 201 read with Section 149 of IPC and under Sections 3(2)(v) and (va) of SC & ST Act. The appellant/accused No. 1 filed Criminal Miscellaneous No. 144/2022 and the same came to be rejected by order dated 15.03.2022 by the learned III Additional District and Sessions Judge, Belagavi. The said order is challenged in the instant appeal. 4. Learned counsel for the appellant would contend that, the complaint has been filed by the wife of the deceased and it is against unknown persons. The entire case depends upon the statement of CW-4. CW-4, in his statement recorded by the Police and also recorded under Section 164 of Cr.P.C. has not stated the names of the persons who assaulted and took the deceased in the car. Even though the appellant/accused No. 1 is arrested on 04.12.2021, Test Identification parade has been conducted on 20.01.2022 and in the meantime there are chances of this CW-4 seeing the accused persons who were brought to the Court and for the investigation. It is his further submission that the appellant is in judicial custody since ten months and as charge sheet is filed, the appellant is not required for custodial interrogation. Without considering all these aspects, the learned Sessions Judge has passed the impugned order which requires interference by this Court. With this, he prayed to allow the appeal. 5. Per contra, learned High Court Government Pleader would contend that this appellant along with other accused conspired to kill the deceased as he had illicit relation with the second wife of this appellant/accused No. 1. The offences alleged against the appellant/accused No. 1 are heinous offences punishable with death or imprisonment for life. There is recovery of car, iron rod and clothes under mahazar at the instance of this appellant/accused No. 1. CW-4 in his statement recorded under Sections 161 and 164 of Cr.P.C. has stated presence of 4 persons assaulting and taking a person in a car. There is recovery of car, iron rod and clothes under mahazar at the instance of this appellant/accused No. 1. CW-4 in his statement recorded under Sections 161 and 164 of Cr.P.C. has stated presence of 4 persons assaulting and taking a person in a car. The said CW-4 has identified this appellant/accused No. 1 at the time of Test Identification parade. Charge sheet material show prima facie case against the appellant/accused No. 1 for the offences alleged against him. If the appellant is granted bail, there are chances of, he, threatening the complainant and other prosecution witnesses. Considering all these aspects, the learned Sessions Judge has rightly rejected the bail petition of the appellant/accused No. 1 which does not call for interference by this Court. With this, he prayed to dismiss the appeal. 6. Having regard to the submission made by the learned counsel for the appellant and the learned High Court Government Pleader, this Court has perused the impugned order and the charge sheet papers. 7. The accusation against this appellant/accused No. 1 in the charge sheet is that, he and accused Nos. 2 and 4 to 6 conspired to kill the deceased and in furtherance of the said conspiracy, they stopped the motorcycle of the complainant and this appellant/accused No. 1 assaulted him with iron rod on his head and accused Nos. 1 to 4 took the injured in the car and on the way, the complainant died and they threw the dead body in a canal as shown by accused No. 6 who was also present at canal keeping watch. CW-4 has stated that, all of the 4 persons assaulted the deceased but as per the prosecution case, this appellant/accused No. 1 has assaulted the deceased with iron rod. Test Identification parade has been conducted after one month 15 days of the arrest of this appellant/accused No. 1. In the meantime, from the date of arrest and prior to Test Identification Parade, this appellant/accused No. 1 might have been taken by the Investigating Officer for the purpose of investigation and might have also been produced to the Court. Without considering all these aspects, the learned Sessions Judge, has passed the impugned order which requires interference by this Court. 8. Without considering all these aspects, the learned Sessions Judge, has passed the impugned order which requires interference by this Court. 8. The main apprehension of the prosecution is that, if, the appellant is granted bail, he will threaten the complainant and other prosecution witnesses can be met with by imposing stringent conditions. 9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for setting aside the impugned order and to grant bail to the appellant/accused No. 1 subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The criminal appeal is allowed. The order dated 15.03.2022 passed in Crl.Misc. No. 144/2022 by the learned III Additional District and Sessions Judge, Belagavi, is set aside. Consequently, the petition filed by the appellant under Section 439 of Cr.P.C. stands allowed and the appellant/accused No. 1 shall be released on bail in Crime No. 296/2021 of Raibag Police Station subject to the following conditions: i) The appellant/accused No. 1 shall execute a personal bond for a sum of Rs. 1,00,000/-(Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court. ii) The appellant/accused No. 1 shall not indulge in tampering the prosecution witnesses. iii) The appellant/accused No. 1 shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.