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2022 DIGILAW 300 (KAR)

Dinesh M. v. State of Karnataka

2022-03-04

S.SUNIL DUTT YADAV

body2022
JUDGMENT Siddappa Sunil Dutt Yadav. - Criminal Petition No. 9742/2021 has been filed by the petitioner-Accused No. 8 seeking to be enlarged on bail in connection with his detention relating to the proceedings in Spl.C.C. No. 565/2021 in R.C. No. 17(S)/2019 (arising out of Crime No. 135/2016 of Sub-Urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120-B, 201, 302 r/w Section 149 of IPC and under Section 25 read with Section 3, 5, 8 and 29 of Arms Act. 2. Criminal Petition No. 649/2022 has been filed by the petitioners-Accused Nos. 10 and 13 seeking to be enlarged on bail in connection with their detention relating to the proceedings in Spl.C.C. No. 565/2021 in R.C. No. 17(S)/2019 (arising out of Crime No. 135/2016 of Sub-Urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120-B, 201, 302 r/w Section 149 of IPC and under Section 25 read with Section 3, 5, 8 and 29 of Arms Act. 3. Both the petitioners in Crl.P Nos. 9742/2021 and 649/2022 had earlier approached the Court of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) seeking to be enlarged on bail and their applications came to be dismissed by order dated 13.08.2021 and have approached this Court by way of present petitions and have sought to be enlarged on bail. 4. In light of identical factual matrix regarding which the petitioners had been arrested and are in custody and also noticing that the bail applications of the petitioners in both the petitions having been rejected by the trial Court by a common order dated 13.08.2021, it would be appropriate to dispose off these petitions by this common order. 5. The narration of facts as made out in Crl.P. No. 6906/2021 ought to be adopted in the present case also. 5. The narration of facts as made out in Crl.P. No. 6906/2021 ought to be adopted in the present case also. The complaint was lodged by one Smt. Mallawwa wife of deceased Yogeshgoudar on 15.06.2016 to the Dharwad Sub-Urban Police and pursuant to the same, a case in Crime No. 135/2016 was registered for an offence punishable under Section 302 of IPC against unknown accused persons and the matter was taken up for investigation. 6. It is stated that the complainant was a resident of Govanakoppa Village and her husband was the President of Taluk Panchayat, Dharwad. Later, he was elected as Member of Zilla Panchayat. It is further submitted that the deceased husband of the complainant was running a 'Gym' at Sapthapur, Dharwad in the name of "Udaya Gym" and he used to go to 'Gym' everyday at 7.30 a.m., and return home at 9.30 a.m. It is further submitted that the deceased had received an anonymous letter few days earlier to the incident that he would be killed in the manner in which Udayagowda was killed. 7. It is stated that on 15.06.2016, the deceased left the house at 7.20 a.m., stating that he would go to 'Gym.' At about 8.30 a.m., when the family members were watching Suvarna News, they noticed a news item stating that complainant's husband was murdered in Dharwad and immediately they proceeded to the place of incident. The complainant is stated to have noticed the dead body of her husband with several injuries on the head, neck and chest and lying in a pool of blood. The police were requested to take necessary action. 8. It is further submitted that investigation was commenced by Dharwad Police and that the statements of eyewitnesses were recorded and Accused Nos. 1 to 6 have been arrested. There was recovery of weapons used for commission of offence. After completion of investigation, the charge sheet was filed. 9. After committal proceedings, case was registered as S.C. No. 50/2017 on the file of IV Addl. District & Sessions Judge, Dharwad. The trial was commenced, the witnesses were examined and 313 statements of the accused were also recorded. It is submitted that when the matter was listed for final arguments, a request was made for entrusting the investigation to the Central Bureau of Investigation ("CBI" for short). 10. District & Sessions Judge, Dharwad. The trial was commenced, the witnesses were examined and 313 statements of the accused were also recorded. It is submitted that when the matter was listed for final arguments, a request was made for entrusting the investigation to the Central Bureau of Investigation ("CBI" for short). 10. The observations made by this Court in the order dated 11.01.2022 passed in Crl.P. No. 6906/2021 while adverting to the statement of objections filed in the said case are also to be taken note of for a complete enumeration of relevant facts. The observations made at para-7 of the order dated 11.01.2022 passed in Crl.P. No. 6906/2021, while referring to the statement of objections filed, records that Smt. Thungamma (mother of the deceased) and Sri Gurunatha Goudar (brother of the deceased) had approached this Court seeking to hand over the investigation to CBI in W.P. Nos. 58183-184/2017. It is submitted that the said Writ Petitions came to be rejected and liberty was reserved to move an application under Section 319 of Cr.P.C. 11. It is however made out that fresh effort was made for entrustment of investigation to the CBI as Sri Gurunathgoudar had asserted that State Police had not investigated the case properly, as vital evidence was not considered. It was specifically asserted that there was one more car that was involved in the incident and about 60 CC T.V. footages around the place of incident had not been collected. 12. It is further made out that the said Sri Gurunathgoudar had specifically asserted that the Police Officers of the rank of Dy. S.P. and a senior politician were involved in the said case and the said Gurunathgoudar had submitted a request with the State Government to transfer the case to CBI categorically mentioning the involvement of Police Officers in the said case. 13. On the basis of the said request, the Government of Karnataka accorded consent under Section 6 of the Delhi Special Police Establishment Act on 06.09.2019 and accordingly, the CBI was permitted to conduct further investigation in Crime No. 135/2016 registered by the Dharwad Sub-urban Police Station. On receipt of order of sanction, the respondent-CBI filed a memo before the learned Principal Civil Judge (Jr.Dn.) & JMFC, Dharwad under Section 173 (8) of Cr.P.C., intimating about the respondent-CBI undertaking further investigation in the said case. On receipt of order of sanction, the respondent-CBI filed a memo before the learned Principal Civil Judge (Jr.Dn.) & JMFC, Dharwad under Section 173 (8) of Cr.P.C., intimating about the respondent-CBI undertaking further investigation in the said case. It is made out that contemporaneously in accordance with the provisions of the CBI Manual, the respondent for administrative and statistical purposes had re-registered FIR No. 135/2016 dated 15.06.2016 of Dharwad Sub-urban Police Station as RC 17(S)/2019 dated 24.09.2019. On registration, further investigation came to be commenced by the respondent and it is stated that the respondent has completed the investigation and has filed three supplementary charge sheets. 14. As the applications filed under Section 439 of Cr.P.C. by the petitioners in both the petitions came to be dismissed by a common order dated 13.08.2021 by the Court of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82), the present petitions have been filed. 15. The contention of learned counsel appearing for the petitioners in both the petitions is that the allegation as made out against the present petitioners are contained in the charge sheet filed by CBI, a copy of which is produced as Annexure-(I) to Annexure-A to Crl.P. No. 9742/2021 and in specific, at para-19 the observations have been made, which is extracted hereinbelow:- "19. The further investigation revealed that Shri. Yogesh Goudar arrived near the Gym spot on 15.06.2016 in a silver coloured innova by 07.36 A.M. The further investigation revealed that in furtherance of the conspiracy when Shri. Yogesh Goudar was about to enter the Uday Gym, A-7 who was waiting on the stairs sprinkled chilli powder in the eyes of Sh. Yogesh Goudar from a packet carried by him and stabbed him on his neck with a dagger and unsettled Shri. Yogesh goudar while A-9 who was holding a newspaper attacked him on his head with "long mattchu' (machete) and when Shri. Yogesh Goudar fell down, A-8, A-10, A-11, A-12, A-13 and A-14 rushed to the Gym and dragged him to the Gym and attacked him on his head and other parts of the body with longs and other weapons carried in the bag by A-8 and A-11 Dr. Dattatraya, Shri Mohan Yerchappa and Shri Vinayak Binjinavar, Shri. Anand who were inside the gym doing exercises at that time ran out of the place seeing the incident. 16. Dattatraya, Shri Mohan Yerchappa and Shri Vinayak Binjinavar, Shri. Anand who were inside the gym doing exercises at that time ran out of the place seeing the incident. 16. It is submitted that Accused No. 9 has been enlarged on bail as per the order passed in Crl.P. No. 6906/2021 and the nature of imputation as made out against the present petitioners are substantially identical and in light of similarity in the nature of allegation made against the petitioners, vis-a-vis, the imputation made against Accused No. 9, and Accused No. 9 having been enlarged on bail, the present petitioners are also entitled to be enlarged on bail on the principle of parity on similar conditions. 17. Learned counsel appearing for the respondent-CBI would contend that there is no identical imputations made out as against Accused No. 9 on one hand, and the Accused Nos. 8, 10 and 13 who have sought to be enlarged on bail in the present petitions. 18. It is contended that the imputation against Accused No. 9 as found in para-19 of the charge sheet, a portion of which has been extracted hereinabove would show that Accused No. 9 had attacked the deceased with "long mattchu (machete)". On the other hand, it is pointed out that as regards Accused No. 8, 10 and 13, after the deceased was attacked by Accused No. 9 and fell down, the other accused including Accused No. 8, 10 and 13 rushed to the Gym, dragged him and attacked him on his head and other portions of the body with longs and other weapons which were carried by Accused Nos. 8 and 11. Accordingly, it is submitted that the principle of parity cannot be invoked, as the imputations made are not identical in its entirety. 19. Heard both sides. 20. A close perusal of para-19 of the final report filed by the respondent-CBI would encapsulate the nature of allegations made against Accused No. 9, who has been enlarged on bail in Crl.P. No. 6906/2021. The imputations made against Accused Nos. 8, 10 and 13 are also in substance substantially similar to the imputations made against Accused No. 9. 20. A close perusal of para-19 of the final report filed by the respondent-CBI would encapsulate the nature of allegations made against Accused No. 9, who has been enlarged on bail in Crl.P. No. 6906/2021. The imputations made against Accused Nos. 8, 10 and 13 are also in substance substantially similar to the imputations made against Accused No. 9. In fact, the imputations made against Accused No. 9 in the charge sheet was that he was the first person to have attacked the deceased on his head with 'long mattchhu' and after deceased Yogesh Goudar fell down, the other accused, including Accused No. 8, 10 and 13 had dragged him and attacked the deceased on his head and other parts of the body with longs and other weapons. 21. Learned counsel for the petitioners would submit that the material relied upon in the charge sheet as regards Accused No. 9 is the same material that is relied upon by the CBI as regards the present petitioners. Learned counsel for the CBI is unable to controvert such assertion. 22. This Court while passing the order dated 11.01.2022 in Crl.P No. 6906/2021 has considered all the aspects in detail. At the outset, it must be noticed that Dharwad Sub Urban Police have registered a case in Crime No. 135/2016 for the offence punishable under Section 302 of IPC against unknown accused persons and had taken up investigation. It is also borne out from the records that Dharwad Sub Urban Police had completed the investigation and filed a final report after recording the statement of witnesses whereby the imputation was made as against accused nos. 1 to 6 and there was also recovery of weapons stated to have been used in the commission of offence. 23. No doubt, the Court had noticed in the earlier order dated 11.01.2022 passed in Crl.P. No. 6906/2021 that the challenge to the order passed in W.P. No. 51012/2019 was still pending consideration before the Apex Court. However, it is submitted that the Apex Court has confirmed the order passed in W.P. No. 51012/2019. 24. Nevertheless, what would remain is the material on record which is required to be tested during trial, which material consists of statement of witnesses, charge sheets and other materials made out by Dharwad Sub-Urban Police at the first instance, all of which admittedly point out to the involvement of Accused Nos. 24. Nevertheless, what would remain is the material on record which is required to be tested during trial, which material consists of statement of witnesses, charge sheets and other materials made out by Dharwad Sub-Urban Police at the first instance, all of which admittedly point out to the involvement of Accused Nos. 1 to 6. 25. Even if additional evidence is gathered and any further investigation by CBI is taken note of, clearly, the evidence collected at the first instance including the statement of witnesses and charge sheet filed and deposition before the Court, all of which constitute part of Court proceedings and may have to be re-appreciated in light of the inconsistent stand taken by the same witnesses at a subsequent point of time. 26. It must be noted that CBI has relied on different versions of the same witnesses which the Investigating Agency would explain and assert that there are reasons found in the said subsequent statements of the same witnesses made before the CBI justifying their stand on different versions. However, as noticed by the earlier order dated 11.01.2022 passed in Crl.P. No. 66906/2021, the appreciation of such material is a matter best left for trial. 27. This Court has in detail discussed the contradictory material available before the Court at para-50 of the order dated 11.01.2022 passed in Crl.P. No. 6906/2021, which is extracted hereinbelow:- "50. The very same witnesses who in 2016 had made statements regarding the imputation of commission of crime as regards accused no. 6 have turned around in 2019. As to whether the evidence let in at the first instance before the Court was under undue influence resulting in tampering of evidence, is a matter to be demonstrated in trial." The Court has also considered the threat perception and involvement of Accused No. 9. 28. In the present case, petitioners-Accused Nos. 10 and 13 have been in custody since 03.03.2020, while Accused No. 8 has been in custody since 02.03.2020. The investigation is complete and three charge sheets have been filed by CBI. 29. 28. In the present case, petitioners-Accused Nos. 10 and 13 have been in custody since 03.03.2020, while Accused No. 8 has been in custody since 02.03.2020. The investigation is complete and three charge sheets have been filed by CBI. 29. As observed in para-53 of the order dated 11.01.2022 passed in Crl.P. No. 6906/2021, though there have been allegations made out by CBI while placing reliance on the contents of the final report filed, the Investigating Agency has pointed out to the role of Investigating Officers of having colluded with the accused persons and thus derailing the investigation, but as observed in the earlier order, i.e. 11.01.2022 passed in Crl.P. No. 6906/2021, that by itself would not justify the continuance of petitioners in the custody. 30. The Court, while enlarging Accused No. 9 vide order dated 11.01.2022 in Crl.P. No. 6906/2021 on bail has considered the aspect of weightage to be given to the gravity of offence at para-56 of the said order. The Court has also considered the guidelines regarding grant of bail as found in para-64 of the judgment of Apex Court in the case of Arnab Manoranjan Goswami v. State of Maharashtra and Others reported in (2021) 2 SCC 427 . The Court at paras-58 and 59 of the order dated 11.01.2022 has also discussed relating to the case having reached the advanced stage at the first instance, as the witnesses were in fact examined in the Court. 31. Further, the Court has also observed at para-59 of the order dated 11.01.2022 that the reasons for the witnesses turning hostile and not having supported the case of the Prosecution is a matter to be re-tested during trial, in light of fresh investigation report submitted by the CBI, including the statements of the very same witnesses with different versions having been recorded under Section 161 of Cr.P.C. 32. The Court at para-60 of the order dated 11.01.2022 has also taken note of the time gap between the recording of statement of witnesses under Section 161 of Cr.P.C. at the first instance in the year 2016 and recording of statement of witnesses in the year 2019 after CBI has taken over the investigation, which would reflect the divergent stand of the same witnesses. 33. The other observations made by this Court in the earlier order needs to be kept in mind, in particular, the observations at para-73 as well. 33. The other observations made by this Court in the earlier order needs to be kept in mind, in particular, the observations at para-73 as well. The observations made at para-73 of the order dated 11.01.2022 in Crl.P. No. 6906/2021 are extracted hereinbelow:- "73. The order of the trial Court rejecting the petition seeking to be enlarged on bail in Crl.Misc. 4267/2021 when perused would reveal that the trial Court has taken note of the charge sheet filed by the C.B.I., and concluded that there was prima facie material to show involvement of accused no. 9 in the execution of murder of Yogesh Goudar. The trial Court has referred to the seized C.C. TV. footage and observed that the said C.C. TV. footage cannot be discarded at the stage of considering the bail. The trial Court has also observed that mere completion of investigation and filing of charge sheet cannot be a ground to allow the bail petition and if the Court enlarges the petitioner on bail, even after the prosecution establishes prima facie case, it would convey wrong message to the society." The above observations are required to be taken note of in the present petitions also. 34. Clearly, in the present petitions, even if the petitions were to be examined independently, the reasoning made while enlarging Accused No. 9 on bail would hold good in the present petitions also. As asserted earlier, the nature of imputation as found in the charge sheet filed by the CBI extracted supra would indicate the similarity of imputations. So also, the material relied upon by the Investigating Agency as regards Accused No. 9 as well as Accused Nos. 8, 10 and 13 are also similar. 35. Accordingly, on the principle of parity as well, these petitioners are entitled to be enlarged on bail. In order to allay the apprehension of Prosecution regarding the tampering of witnesses, the same conditions as imposed while enlarging Accused No. 9 on bail vide order dated 11.01.2022 in Crl.P. No. 6906/2021 are also to be imposed on the present petitioners as well. 36. In light of the above discussion, case is made out for enlarging the petitioners on bail, subject to conditions. In the result, Criminal Petition No. 9742/2021 filed by the petitioner-Accused Nos. 8 and Criminal Petition No. 649/2002 filed by the petitioners-Accused Nos. 36. In light of the above discussion, case is made out for enlarging the petitioners on bail, subject to conditions. In the result, Criminal Petition No. 9742/2021 filed by the petitioner-Accused Nos. 8 and Criminal Petition No. 649/2002 filed by the petitioners-Accused Nos. 10 and 13 under Section 439 of Cr.P.C. are allowed and the petitioners are enlarged on bail in Spl.C.C. No. 565/2021 in Crime No. 17(S)/2019-CBI-BLR (arising out of Crime No. 135/2016 of Sub-urban Police Station, Dharwad) pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) for the offences punishable under Sections 143, 147, 148, 120(B), 201, 302 red with Section 149 of IPC and under Section 25 read with Sections 3, 5, 8 and 29 of Arms Act, subject to the following conditions:- i. The petitioners shall execute personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) each with two sureties for the likesum before the concerned Court; ii. The petitioners shall not in any way impede the conduct and proceedings of the investigation and the trial. iii. The petitioners shall not directly or indirectly get in touch with any of the witnesses nor shall they try to influence any such witnesses. iv. The petitioners shall not visit the City of Dharwad till the trial is completed. v. The petitioners shall mark their presence in the Office of ACP CBI, Unit, Bengaluru once in a week. vi. Any infraction or violation of the above conditions shall entail in cancellation of bail.