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2022 DIGILAW 236 (KAR)

Satish v. State of Karnataka

2022-02-17

MOHAMMAD NAWAZ

body2022
JUDGMENT Mohammad Nawaz, J. - This appeal is preferred by accused No. 9 in Spl.S.C. No. 12/2018 pending on the file of II Addl. District and Sessions and Special Judge at Dharwad, arising out of Cr. No. 7/2018 of Keshawapur police station, Hubballi. 2. The appellant has sought to set aside the order dated 08.12.2021 passed by the learned Sessions Judge rejecting his bail petition filed under Section 439 of Cr.P.C. and consequently, to enlarge him on bail. 3. Charge-sheet has been filed against accused Nos. 1 to 11 for offences punishable under Sections 143, 147, 148, 120-B, 109, 302, 201 read with Section 149 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 25(1)(a) of the Arms Act. 4. Heard Shri Ravi B. Naik, the learned Senior Counsel appearing for appellant and the learned High Court Government Pleader for respondent/State and perused the material on record. 5. Respondent No. 2/first informant has been served, but there is no representation. 6. It is the case of the prosecution that accused Nos. 8 and 9 conspired with other accused to commit the murder of one Kumareshwar Pille by giving Supari of Rs. 30,00,000/- and in furtherance of the conspiracy entered between the accused persons, on 25.01.2018 at about 8.30 p.m., when the deceased was proceeding on his two wheeler bearing registration No. KA-25/ES-3035, accused persons namely accused Nos. 1 to 3 and 5 to 7 came in a car bearing registration No. KA-18/E-9313, driven by accused No. 1 and hit the motorcycle ridden by the deceased from its back and made the deceased to fall and then assaulted him with lethal weapons all over his body and committed his murder. Thereafter, they threw the weapons in the Tungabhadra river and Navalgund Bennihalla water and concealed 3 country made pistols and 8 live bullets as well as the car and the two wheeler of the deceased. 7. Motive for the commission of the murder is that, on 06.04.2016, son of the deceased by name Vinayaka Pille was murdered and in that connection, a case was registered against 8 persons including the appellant herein who was arraigned as accused No. 2. The deceased in the present case was opposing the bail. 7. Motive for the commission of the murder is that, on 06.04.2016, son of the deceased by name Vinayaka Pille was murdered and in that connection, a case was registered against 8 persons including the appellant herein who was arraigned as accused No. 2. The deceased in the present case was opposing the bail. Hence, it is alleged that the appellant as well as accused No. 8 who were in judicial custody in the said case were nurturing ill-will against the deceased as they were unable to get the bail and therefore, by giving Supari, they conspired with other accused persons to commit the murder of Kumareshwar Pille. 8. The learned Senior Counsel appearing for the appellant has contended that there is absolutely no material against the appellant to connect him with the alleged crime, as admittedly, he was in the prison at the time of commission of offence. He contends that even though it is alleged that a sum of Rs. 30,00,000/- was given as Supari, no amount has been recovered. He contends that in Special Case No. 25/2016 in respect of the murder of Vinayaka Pille, the trial Court has acquitted all the accused persons vide judgment dated 28.10.2021. He contends that even in the instant case, the witnesses who are examined including the complainant, i.e., the son of deceased, has turned hostile. He submits that the appellant is in judicial custody from 10.04.2016 and in the present case, he was taken into custody on body warrant on 19.03.2018. He submits that the appellant is ready to abide by any reasonable condition and he will regularly appear before the trial Court without fail and cooperate for the early disposal of the case. 9. The learned High Court Government Pleader has contended that CWs-19 to 22 are the eyewitnesses to the incident and their evidence is yet to be recorded and therefore, contends that in the event of grant of bail to the appellant, there are chances of tampering the witnesses and hampering the case of prosecution. He contends that the appellant along with accused No. 8 conspired with the other accused persons and gave Supari to them to commit the murder of Kumareshwar Pille. He submits that appellant is the prime accused and therefore, he is not entitled for the relief sought in this appeal. Accordingly, seeks to reject the appeal. 10. He contends that the appellant along with accused No. 8 conspired with the other accused persons and gave Supari to them to commit the murder of Kumareshwar Pille. He submits that appellant is the prime accused and therefore, he is not entitled for the relief sought in this appeal. Accordingly, seeks to reject the appeal. 10. The incident has taken place on 25.01.2018 at about 8.30 p.m. It is not in dispute that on the date of incident, appellant/accused No. 9 was in judicial custody in connection with Special Case No. 25/2016. In the said case, he was arrested on 10.04.2016 and in the present case, he was secured under body warrant on 19.03.2018. According to prosecution, appellant/accused No. 9 and accused No. 8, who were lodged in prison in connection with Spl.S.C. No. 25/2016, conspired from the prison with other accused persons to commit the murder, as the deceased Kumareshwar Pille was coming in their way from getting bail. A mobile phone is said to have been recovered from the house of accused No. 8. However, there is no recovery of any incriminating material at the instance of accused/appellant. Except the motive attributed against the appellant, there is no sufficient material against him. 9 witnesses are examined and the said witnesses including the first informant have turned hostile. According to prosecution, CWs-19 to 22 are the eyewitnesses to the incident in question. However, the overt acts of assaulting the deceased with lethal weapons is attributed against accused Nos. 1 to 3 and 5 to 7. The said accused are in judicial custody. It is not the case of prosecution that the appellant was present at the scene of occurrence or he assaulted the deceased with a lethal weapon. So far as Special SC No. 25/2016 is concerned, where appellant is arraigned as accused No. 2, said case has ended in acquittal. The appellant has been taken under body warrant in the present case on 19.03.2018. He is in judicial custody for nearly 4 years. He has undertaken to abide by conditions and to furnish sufficient surety for his appearance before the trial Court regularly. 11. The learned Sessions Judge while rejecting the prayer for bail has observed that the charge-sheet materials, statements of witnesses including voluntary statements of accused clearly reveal that accused Nos. 8 and 9 have made conspiracy and held meeting with accused Nos. 11. The learned Sessions Judge while rejecting the prayer for bail has observed that the charge-sheet materials, statements of witnesses including voluntary statements of accused clearly reveal that accused Nos. 8 and 9 have made conspiracy and held meeting with accused Nos. 1 and 4 to commit murder by giving Rs. 30,00,000/- as Supari to the said accused. It is further observed that as per the letter of Jail Authority, there may be chances of meeting of these accused persons between lunch or dinner time. However, it is seen that for paying a sum of Rs. 30,00,000/-, no material is collected. Further, the learned Sessions Judge was not proper in placing reliance on the voluntary statements of accused to come to a conclusion that the appellant conspired and held meeting with accused Nos. 1 and 4 to commit murder, as the said voluntary statement is not admissible in evidence. The apprehension of the prosecution that the appellant is likely to threaten the prosecution witnesses and he may flee from justice, can be safeguarded by imposing suitable conditions. 12. Hence, the following: ORDER i) Appeal is allowed, ii) The impugned order dated 08.12.2021 passed in Spl. SC. No. 12/2018 by the II Addl. District and Sessions and Special Judge at Dharwad, is set aside, iii) Consequently, the application filed by the appellant/accused No. 9 before the trial Court under Section 439 of Cr.P.C. is hereby allowed, iv) The appellant/accused No. 9 shall be enlarged on bail subject to following conditions; a. Appellant shall execute a personal bond in a sum of Rs. 2,00,000/- (Rupees two lakhs only) with two sureties for likesum to the satisfaction of the learned Sessions Judge, b. He shall furnish proof of his residential address and also his contact number and shall inform the Court if there is any change in the address/contact number, c. He shall not leave the jurisdiction of the trial Court without prior permission of the learned Sessions Judge. d. He shall not tamper with the prosecution witnesses either directly or indirectly, e. He shall mark his attendance at the jurisdictional Police Station once in two weeks preferably on 2nd and 4th Sunday between 10:00 am and 5:00 pm till conclusion of trial, f. He shall appear before the trial Court on all dates of hearing without fail, g. He shall not indulge in any criminal activities, In the event of violation of any of the above conditions, the prosecution is at liberty to seek cancellation of the bail.