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2022 DIGILAW 913 (KAR)

Manjunatha L. K. v. State of Karnataka

2022-07-15

H.P.SANDESH

body2022
JUDGMENT 1. This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No. 22/2021 (S.C.No. 5055/2021) of Kikkeri Police Station, Mandya District, for the offence punishable under Sections 498A, 302, 304B read with 34 of IPC. 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 the marriage of the victim was solemnized with the petitioner in 2015 and thereafter she joined the matrimonial home. In the said wedlock, the victim gave birth to two children. The house in which they were residing was very old and hence the accused persons were constructing a house and started to harass the victim to get the money from her parental house and when C.W.1 came to know about this, C.W.1 paid an amount of Rs. 1 lakh, but they insisted for additional amount. That on 12.02.2021 at 10.30 p.m., accused No. 1 in his house made an attempt to commit the murder of the victim by way of smothering using towel and covered the mouth and nose and thereafter took the victim to KR Hospital. The victim gave the statement before the doctor C.W.25 that her husband used the towel for smothering and thereafter both the husband and mother-in-law brought her to the hospital in an auto rickshaw and ultimately she succumbed to the act of this petitioner and other accused persons. 4. The learned counsel for the petitioner submits that the Histopathology report is negative and opinion is based on the statement given before the doctor and not on medical material. The learned counsel submits that this petitioner is in custody from last 17 months and other accused persons have been enlarged on bail. The learned counsel submits that while lodging the complaint, the complainant says that blood was coming from nostril and the opinion of the doctor is also not sure. The learned counsel brought to the notice of this Court that the petitioner only took her to the hospital. If really he intended to commit the murder of his wife, he would not have taken her to the hospital and pulse was feeble, SPO2 was 60% and pulse was only 50%. The learned counsel brought to the notice of this Court that the petitioner only took her to the hospital. If really he intended to commit the murder of his wife, he would not have taken her to the hospital and pulse was feeble, SPO2 was 60% and pulse was only 50%. Under the circumstances, the Court cannot rely upon the alleged statement of the victim made before the doctor and hence he may be enlarged on bail. 5. Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that the incident of attempt to smothering was taken place in the matrimonial home and the same is occurred within six years of her marriage. The learned counsel submits that C.W.18 auto driver took the victim to the hospital when the petitioner and mother-in-law shifted her to the hospital and statement is clear that they were talking about that she was having stomach pain, but later comes to know that it is a murder. The learned counsel submits that the Court has to take note of the MLC and deceased statement, which was made prior to her death in the presence of the doctor. The learned counsel submits that the post mortem report is clear that the cause of death is on account of asphyxia due to smothering and all these materials clearly discloses that this petitioner committed the murder of his wife. 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, the marriage was solemnized in 2015 and thereafter the victim joined the matrimonial home. The allegation according to the prosecution is that when they were constructing new house, they were in need of money and insisted for additional dowry amount and they paid an amount of Rs. 1 lakh, but insisted to pay more amount and hence committed the murder by smothering the victim. The main material before the Court is that the incident was taken place in the matrimonial home and C.W.18 says that the victim was shifted to hospital in his auto rickshaw. The Court has to take note of the immediate history given before the doctor by the victim. The main material before the Court is that the incident was taken place in the matrimonial home and C.W.18 says that the victim was shifted to hospital in his auto rickshaw. The Court has to take note of the immediate history given before the doctor by the victim. The intimation given to the police is also that smothering by the husband and the said information was given and also included the name of the mother. No doubt, pulse was feeble and SPO2 was 60% and when the doctor recorded the statement of the victim, history was given that an attempt is made by husband and mother-in-law and the Court has to take note of the immediate documents which came into existence i.e., history given before the doctor and the doctor is cited as C.W.25 in the charge-sheet. The post mortem report is also clear that on perusal of RFSL, HPE report and examination and dying declaration of the victim, the opinion is given that the death is due to asphyxia as a result of smothering. When such material is available before the Court, particularly the history is given before the doctor and normally the victim will not tell lie at the fag end of her life and when such material is available before the Court, it is not a fit case to exercise the powers under Section 439 of Cr.P.C. to enlarge the petitioner on bail. No doubt, the other accused persons are enlarged on bail and specific allegation is made against this petitioner that he made an attempt to commit the murder by smothering and cause of death is on account of smothering and hence merely because the petitioner is in custody from last 17 months is not a ground to enlarge him on bail when a heinous offence of murder is committed in the matrimonial home of the victim. 7. In view of the discussions made above, I pass the following: ORDER The petition is rejected. The Trial Court is directed to dispose of the matter as early as possible. It is made clear that the Trial Court shall not be influenced with the observations made by this Court while considering the matter on merits.