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2022 DIGILAW 770 (KAR)

Lohitha v. State

2022-06-21

H.P.SANDESH

body2022
ORDER : H.P. Sandesh, J. 1. This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No. 100/2021 (C.C. No. 33673/2021) of Srirampura Police Station, Bangalore for the offence punishable under Sections 120B, 302, 201 read with 34 of IPC and Section 36 of the Karnataka Excise Act. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State. 3. The factual matrix of the case of the prosecution is that there was a quarrel between the deceased and this petitioner one week prior to this incident. Similarly, there was a quarrel between accused No. 2 and the deceased also and both of them discussed with regard to the said incident and accused Nos. 1 and 2 conspired with each other to teach a lesson to the deceased in the shop belonging to C.W. 7 and also purchased a dagger. That on 04.09.2021 at around 7.00 p.m., when the victim went to consume alcohol in Srirampura jurisdiction belonging to accused No. 3, accused No. 2 went and quarreled with him and accused No. 1 was also along with him. With an intention to take away the life, accused No. 1 inflicted injury with the dagger near the private part of the victim, as a result, he has sustained injury to his left thigh and blood was oozing. The said fact was informed to accused No. 3 by accused No. 6 and accused No. 3 on the instructions of accused Nos. 4 and 5, dragged the injured and made him to lie on the footpath and due to the said injuries, he succumbed to the injuries and hence case has been registered, matter has been investigated and charge-sheet is also filed. 4. The learned counsel for the petitioner submits that this petitioner is accused No. 1 and though an allegation is made that he inflicted injury, only one injury is inflicted on the left side of the thigh and the same does not result in death, but the fact is that the victim was made to lie on the footpath and timely treatment was not provided to him, which led to his death. The learned counsel submits that there was no any intention to take away the life of the victim and at the most, it attracts Section 304 of IPC and not 302 of IPC. The learned counsel submits that there was no any intention to take away the life of the victim and at the most, it attracts Section 304 of IPC and not 302 of IPC. The learned counsel submits that accused Nos. 2 to 6 are already enlarged on bail. Though, C.W. 2 to C.W. 5 are the eye-witnesses according to the prosecution, their statements were recorded on the seventh day and thirteenth day of the incident and hence the petitioner may be enlarged on bail. The learned counsel submits that the petitioner is in custody from 05.09.2021 and investigation has been completed and charge-sheet is also filed and no need of further custodial trial. 5. Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that the allegation against other accused persons is that on the instructions of accused No. 3, accused Nos. 4 and 5, kept the injured outside the wine shop i.e., on the footpath. The specific overt-act allegation is made against this petitioner that he inflicted injury with the dagger, as a result, he had sustained injury and blood was oozing and recovery is made at the instance of the petitioner i.e., dagger. There are eye-witnesses to the incident i.e., C.W. 2 to C.W. 5. When there are eyewitnesses to the incident and the recovery is also made at the instance of this petitioner, there is a prima facie case against the petitioner. 6. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and also on perusal of the material available on record, granting of bail in favour of other accused cannot be a ground to enlarge this petitioner on bail and the Court has to take note of the gravity of the offence as well as whether parity applies or not. The Apex Court in the judgment in the case of RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA (KOLI) AND ANOTHER reported in (2021) 6 SCC 230 , has considered the bail on ground of parity with co-accused and the manner in which to be determined. While applying the principle of parity, the Court cannot exercise its powers in a capricious manner and has to consider totality of circumstances before granting bail. Parity while granting bail must focus upon role of the accused, and not only on weapon carried by accused. While applying the principle of parity, the Court cannot exercise its powers in a capricious manner and has to consider totality of circumstances before granting bail. Parity while granting bail must focus upon role of the accused, and not only on weapon carried by accused. Merely observing that another accused who was granted bail was armed with similar weapon is not sufficient to determine whether bail can be granted on the basis of parity. In deciding aspect of parity, role attached to the accused, their position in relation to the incident and to victims is of utmost importance. In the event the parity is claimed in such case thereafter, it is for that Court before whom parity is claimed to determine whether case for grant of bail on grounds of parity is made out. 7. In the case on hand, the allegation against other accused are not similar to the role of this petitioner. The specific overt-act allegation is made against this petitioner that he inflicted injury with dagger. When such being the case, the very contention of the learned counsel for the petitioner that at the most it attracts Section 304 of IPC cannot be accepted at this juncture and the matter requires to be considered whether the offence attracts Section 304 or 302 of IPC only at the time of considering the matter on merits. The medical evidence also supports the case of the prosecution that on account of the injury sustained by him has resulted in his death. When such being the material available on record and when specific overt-act allegation is made against the petitioner, the Court has to take note of the role of the accused as held by the Apex Court referred supra. Apart from that, there is recovery of the dagger, which was used by this petitioner for inflicting the injury. Apart from that, C.W. 2 to C.W. 5 have witnessed the incident and mere delay in recording the statements of C.W. 2 to C.W. 5 cannot be a ground to enlarge the petitioner on bail. The granting of bail in favour of other accused cannot be a ground and parity is not sustainable in respect of this petitioner. 8. In view of the discussions made above, I pass the following: ORDER The petition is rejected.