1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 19TH DAY OF FEBRUARY 2014

BEFORE

THE HON'BLE MR. JUSTICE BUDIHAL R.B.

CRIMINAL PETITION NO.6848 OF 2013

BETWEEN:

KENCHAPPA @ KENCHA S/O.LATE RUDRAPPA AGED 23 YEARS R/AT.BESIDE JUNIOR COLLEGE K.S.R.T.C. LAYOUT NELAMANGALA – 562 123. ... PETITIONER (BY SRI.K.S.VISHWANATHA, ADV.,) AND:

STATE OF KARNATAKA BY NELAMANGALA RURAL POLICE NELAMANGALA – 562 123. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR)

... RESPONDENT (BY SRI.K.NAGESHWARAPPA, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.400/2012 OF NELAMANGALA P.S., BANGALORE DIST., AND S.C.NO.22/2013 ON THE FILE OF THE P.O., F.T.C.-V, BANGALORE RURAL DISTRICT, FOR THE OFFENCE P/U/S 302 OF IPC.

2

THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:-

ORDER

This is the petition filed by the

petitioner – accused No.3 under Section 439 of Cr.P.C.

seeking his release on bail for the offence punishable

under Section 302 of IPC registered by the

respondent – police in Crime No.400/2012.

2. The brief facts of the prosecution case as per

the averment in the complaint that on 01-09-2012 at

4.00 p.m. complainant went to the Government gomala

land for grazing his cattles. When he was there he

found one unknown male dead body aged 25-30 years

near the bushes, he went near the dead body, observed

the injuries on the head, neck and scratch on the body

and assumed that on 31-08-2012 evening somebody

might have brought him to the said land and committed

the murder. It is alleged that the dead person is of well

built with beard face wearing blue jeans pant and a

tattoo mark as Amma, G.Sindhu on his right hand and

3

he noticed two stones beside to the dead body. On the

basis of the complaint lodged by the complainant, case

has been registered firstly against the unknown persons

and during the course of investigation, the Investigating

Officer has arrested the present petitioner and involved

the petitioner as well as the other accused persons for

the alleged offences.

3. Heard the arguments of the learned counsel

appearing for the petitioner – accused No.3 and also

learned High Court Government Pleader for the

respondent – State.

4. Learned counsel for the petitioner during the

course of his argument submitted that there are

eyewitnesses to the alleged incident and FIR was also

registered against the unknown persons and the case of

the prosecution is based on the circumstantial evidence.

Counsel made the submission that so far as the present

petitioner is concerned, no materials placed by the

4

prosecution to show his involvement in the commission

of the alleged offence. Counsel also made the

submission that perusing the statement of witnesses

recorded by the Investigating Officer during

investigation they have stated at the end of their

statement that they came to know about the said

murder. Hence, he made the submission that they

cannot be the eyewitnesses to the incident. Hence, he

submitted that this Court also considered the merits of

the case and granted bail to accused No.4. Hence, he

submitted that by imposing any of the reasonable

conditions, accused No.3 may be admitted to bail.

5. As against this, the learned High Court

Government Pleader during the course of his argument

submitted that there are eyewitnesses to the alleged

incident and Investigating Officer recorded the

statement of the eyewitnesses who have clearly stated

about the involvement of the present petitioner in the

commission of the alleged offence. He also made the

5

submission that there is a recovery of the blood stained

pant and auto rickshaw jointly from accused Nos.1 to 4.

He made the submission that prosecution placed the

prima-facie material to show the involvement of the

present petitioner in the commission of the alleged

offence. Hence, he submitted that the offence alleged

under Section 302 is a serious offence and hence,

petitioner is not entitled to be granted with bail.

6. I have perused the averments made in the bail

petition, FIR, complaint, order passed by the lower

Court on the bail application and also perused the

inquest mahazar proceedings and other materials

placed on record. As it is rightly submitted that firstly

the complaint was against unknown persons and

accordingly FIR was registered against the unknown

persons. It is the case of the prosecution that alleged

incident took place on 31-08-2012, the inquest mahazar

proceedings was conducted on 01-09-2012 and looking

to the inquest mahazar proceedings also there is no

6

mention about the name of the assailants and in

Column No.11 of the inquest mahazar proceedings, it is

mentioned that after tracing the accused persons then

the police will ascertain the cause of death. So this also

goes to show that even on the date of conducting the

inquest mahazar proceedings on the side of the

prosecution, no witnesses were available to show that

they have actually seen the incident. I have perused the

statement of witnesses recorded by the Investigating

Officer during investigation namely, Manjunath

S/o.Ramanna, Chethan Kumar S/o.Balaraju, Prasad

S/o.Dasegowda, Mahadesh Kumar S/o.Paramashivaiah.

Looking to all these statements, at the end of their

statement they have mentioned that they came to know

about the murder. So these witnesses cannot be the

eyewitnesses to the alleged incident. The learned

Government Pleader referred to the statement of one

Roshan S/o.Karim Shariff submitted that he is the

eyewitnesses who has personally seen the incident and I

have perused the statement recorded by the

7

Investigating Officer of this witness and his statement

was recorded 4 days after the alleged incident. So there

is a delay of 4 days in recording the statement of the

present witnesses and ultimately the prosecution has to

explain about the delay in recording statements of the

alleged eyewitnesses during the course of the trial. For

the purpose of considering the bail petition, looking to

the materials on record, I am of the opinion that the

prosecution has not placed the satisfactory material to

show the involvement of the present petitioner in the

commission of the alleged offence. It is no doubt true

under the voluntary statement said to have been

recorded by the Investigating Officer there is a joint

recovery from accused Nos.1 to 4 i.e., blood stain pant,

stones, autos etc. But only on the basis of the said

recovery, it cannot be concluded that there is a prima-

facie material to show the involvement of the present

petitioner. I have also perused the order passed by this

Court in Crl.P.No.7483/2013 dated 05-02-2014. The

Court has considered the merit of the case while

8

considering the bail application of accused No.4. In the

bail petition, it is contended by the petitioner that he is

innocent and not involved in the commission of the

alleged offence and he is ready to abide by any of the

reasonable conditions to be imposed by this Court.

Therefore, looking to all these materials on record, I am

of the opinion that it is a fit case to exercise the

discretion in favour of the present petitioner and to

enlarge him on bail.

7. Accordingly, petition is allowed. Petitioner –

accused No.3 is ordered to be released on bail for the

offence punishable under Section 302 of IPC registered

by the respondent – police in Crime No.400/2012,

subject to the following conditions:

(i) The petitioner shall execute a

personal bond for a sum of

Rs.1,00,000/- (Rupees One Lakh only)

with one solvent surety for the likesum

to the satisfaction of the concerned

Court;

9

(ii) The petitioner shall not

directly or indirectly tamper with any of

the prosecution witnesses;

(iii) The petitioner shall appear

before the concerned Court regularly.

Sd/-

JUDGE

VMB