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2022 DIGILAW 522 (KAR)

Santhosh v. State of Karnataka

2022-04-12

P.N.DESAI

body2022
JUDGMENT P.N. Desai, J. - This appeal is filed under section 14-a(2) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) act, 1989 ('SC-ST act' for short), seeking to enlarge the appellant on bail, who is arraigned as accused No.8 in Crime No.7/2018, registered in Keshvapura PS for the offences punishable under Sections 143, 147, 148, 120(B), 109, 302, 201 read with Section 149 of Indian Penal Code and under Sections 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of atrocities) act, 1989 and under Sections 25(1)(a) of the Indian arms act. 2. Brief case of the prosecution is that a case came to be registered in Crime No.7/2018, on the basis of complaint lodged by one Sankeert Pillai of Hubballi on 26.1.2018. It is alleged in the complaint that on 25.1.2018 at about 8:50 p.m, the complainant who is informant received a phone call from one Smt.Presilla Laydu, alleging that his father was assaulted and attacked by some people near Vasant Nagar and asked the complainant to come to the spot. It is further informed that he came to know some four people came in a white Indica Car and attacked the father of complainant with Talwar and knives. Then the complainant rushed to the spot. There the police and ambulance was present and he found his father had sustained injuries. He also found that his father's vehicle was damaged and dashed from behind. It is further alleged that two years prior i.e., on 06.04.2016 the complainant brother by name Vinayak Pillai was allegedly murdered by one Gurappa Chalawadi and his sons namely Santosh and Satish, who are accused Nos.8 and 9 along with his henchmen by causing road accident by giving supari. The father of the complainant, who is deceased was successful instrumental in accused Nos.8 and 9 and others, not getting the bail in the year 2016. So, the accused persons had developed enmity against the deceased. They hatched a plan to kill the deceased by taking help of accused Nos.1 to 4, who are co-prisoners in Ballari central jail. This appellant was arrested on 10.4.2016, and he was taken on body warrant on 13.3.2018, since then he is in judicial custody. The police after completion of investigation have filed charge sheet against the accused for the above said offences. 3. This appellant was arrested on 10.4.2016, and he was taken on body warrant on 13.3.2018, since then he is in judicial custody. The police after completion of investigation have filed charge sheet against the accused for the above said offences. 3. Heard Shri Ravi B.Naik, learned senior counsel for the appellant and Smt Girija Hiremath, learned High Court Government Pleader for respondent -State. 4. Learned Senior counsel argued that this Court already granted bail to accused No.9 namely Satish in criminal appeal No.100469/2021, vide order dated 07.2.2022. There is no allegation that he has violated any conditions. accused Nos.10 and 11 are granted bail. It is the allegation against this appellant that he made a plan to kill the deceased by taking help of accused Nos.1 to 4, who are co-prisoners in Ballari central jail. It is alleged that this appellant and his brother using the mobile phone and talking with each other. The statement of accused shows that jammers are installed in jail and there is no mobile network in the prison. It is stated by CW.46 that he did not find any mobile phone with appellant and there are no records to show the mobile number or SIM card of the appellant. Nothing has been recovered. In fact, in Special S.C/ST Case No.25/2016 on the file of learned II additional District and Sessions and Special Judge, Dharwad, this appellant was acquitted along with other accused persons by judgment dated 28.10.2021. The appellant was in jail throughout the trial. It is very hard to believe the involvement in the alleged murder of Kumareshwar Pillai. Learned counsel further argued that only on the basis of voluntary statement of accused No.1, this appellant is implicated. No incriminating materials have been seized from this accused. The charge sheet does not indicate involvement of this appellant. The appellant is a family man having minor daughters. The appellant is ready to abide by any conditions that may be imposed by the Court if he is released on bail. Hence, learned senior counsel prayed to enlarge the accused. 5. against this, learned HCGP argued that the statements of eye witnesses is yet to be recorded. The offences alleged against the appellant are punishable with death or imprisonment for life. Hence, learned senior counsel prayed to enlarge the accused. 5. against this, learned HCGP argued that the statements of eye witnesses is yet to be recorded. The offences alleged against the appellant are punishable with death or imprisonment for life. If the appellant is released on bail, he may tamper the prosecution witnesses, may gave supari to kill the eye witnesses, may abscond from the jurisdiction and may not be available for trial. Hence, learned HCGP prays to reject the appeal. 6. I have perused the appeal memo averments and also material placed before the Court. Respondent No.2-the first informant has been served but there is no representation. 7. as per the charge sheet allegation it shows that accused Nos.1 to 4 have planed at the Ballari jail and agreed to pay Rs.30,00,000/- as supari. accused No.10, who is said to have arranged the money to purchase a car and he gave a two wheeler to accused No.11 to watch the movements of deceased. accused No.4, who was not having any licence to possess 3 country pistols and also 8 live bullets, the same were given to accused Nos.5,6, and 7. The accused Nos.1 to 7 hatched conspiracy. accused No.1 dashed two wheeler of deceased from hind side near Vasant nagar, due to which the deceased fell down. Then accused No.1 assaulted the deceased with axe, accused Nos.2, 3, 5, and 6 assaulted with talwar and accused No.7 assaluted with jambia on the head, back, shoulder, left hand and on the left hip of the deceased. Then in order to destroy the evidence, said accused persons threw all the weapons in Tungabadra river and Bennihalla river, thereafter they parked the car in the bushes near land at Sullad, the three country pistols and 8 live bullets were kept in the bricks behind a mosque and two wheeler was parked near Bennihalla river. accused Nos.1, 2 and 8 destroyed their mobile phones in order to screen the evidence. Now the trial has commenced and it is stated that the complainant-PW.1 has not supported the case of prosecution. accused Nos.8 and 9 have approached the District Court for bail. But their bail application for regular bail came to be rejected. Hence, this appeal. 8. accused Nos.1, 2 and 8 destroyed their mobile phones in order to screen the evidence. Now the trial has commenced and it is stated that the complainant-PW.1 has not supported the case of prosecution. accused Nos.8 and 9 have approached the District Court for bail. But their bail application for regular bail came to be rejected. Hence, this appeal. 8. The incident had taken place on 25.01.2018 at about 8:30p.m. admittedly, the appellant is in judicial custody in Special Case No.25/2016 and he was secured in this case through body warrant. according to prosecution, accused Nos.8 and 9, who were lodged in prison in connection with Special case No.25/2016, conspired from the prison with other accused persons to commit the murder of deceased. a mobile phone is said to have been recovered from this appellant. Except the motive attributed against the appellant, there is no sufficient material against him. Nine 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 overtact of assaulting the deceased with lethal weapons is attributed against accused Nos.1 to 3 and 5 to 7. The said accused persons are in judicial custody. admittedly, appellant is not present at the scene of occurrence or has is assaulted. In earlier case, this appellant was also acquitted. Only through body warrant, he was produced in this case. He is in judicial custody till today. 9. The learned Sessions Judge has observed that the material shows the conspiracy by giving a supari on Rs.30,00,000/-. Regarding Rs.30,00,000/-, no material is produced. Learned Sessions Judge has rejected the bail petition only on the voluntary statement of accused Nos.1 to 4. It is evident that accused No.9 was granted bail by coordinate Bench of this Court on 17.02.2022 in Criminal appeal No.100469/2021. The role of both the accused and this accused and the allegation alleged are one and the same. The depositions of PWs.1 to 15 is also produced before the Court. Even the wife and son of deceased have turned hostile. The first informant has also turned hostile. The apprehension of the prosecution that appellant may tamper he prosecution witnesses or may abscond from the jurisdiction, can be meted out by imposing reasonable conditions. 10. It is settled principle of law that bail is a rule and rejection is an exception. Even the wife and son of deceased have turned hostile. The first informant has also turned hostile. The apprehension of the prosecution that appellant may tamper he prosecution witnesses or may abscond from the jurisdiction, can be meted out by imposing reasonable conditions. 10. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consideration, (1) the nature and seriousness of the offence; (2) character of the accused; (3) circumstances which are peculiar to accused; (4) reasonable probabilities of presence of the accused not being secured at trial; (5) reasonable apprehension of witnesses being tampered with; and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence. 11. In the light of these principles, if the present appeal is considered, looking into the facts and circumstances of the case and the material placed before the Court, in my considered view, the appellant is entitled for bail on the ground of parity. accordingly, I proceed to pass the following: ORDER 1. The criminal appeal filed under section 439 of Cr.P.C. is allowed. 2. The order dated 08.12.2021 passed in Spl. SC/ST No.12/2018 by learned II addl. District and Sessions and Special Judge, Dharwad is hereby set-aside. 3. The appellant/accused No.8 by name Santhosh S/o Gurunath @ Gurappa Chalawadi, R/o Gadag road, Ram Nagar, Hubballi, Dist: Dharwad, is ordered to enlarged on bail in Crime No.7/2018 of Keshwapur Police Station, Hubballi registered for the offences punishable under sections 143, 147, 148, 120(B), 109, 302, 201 read with Section 149 of Indian Penal Code and under Sections 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of atrocities) act, 1989 and under Sections 25(1)(a) of the Indian arms act, subject to the following conditions. i) The appellant/accused No.8 shall execute a self bond for Rs.2,00,000/- with two surety for the like sum, to the satisfaction of the District and Sessions Court., i.e., trial Court. ii) The appellant shall not try to tamper the prosecution evidence directly or indirectly. i) The appellant/accused No.8 shall execute a self bond for Rs.2,00,000/- with two surety for the like sum, to the satisfaction of the District and Sessions Court., i.e., trial Court. ii) The appellant shall not try to tamper the prosecution evidence directly or indirectly. iii) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. iv) The appellant shall mark his attendance before the S.H.O of Keshwapura Police Station, Hubballi once in two weeks i.e., on 2nd Sunday and 4th Sunday of a month between 10.00 a.m. to 4.00 p.m. v) The appellant shall furnish authenticated documents in proof of his residential and correct address and shall inform the Court/Police if there is any change in the address and furnish his mobile phone number/numbers to Court and I.O. vi) The appellant shall not involve in any criminal activities. vii) The appellant shall appear before the Court during trial of case on all dates of hearing without fail unless his presence is dispensed by the Court. In case if any of the condition is violated, the prosecution is at liberty to move application for cancellation of bail.