(Prayer: This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.105/2017 of Nelamangala Rural P.S., Bangalore District and later in C.C.No.1967/2017 pending on the file of Principal Civil Judge (Sr. Dn.) and C.J.M., Nelamangala for the offences P/U/Ss 143, 147, 323, 324, 504 and 302 read with Section 149 of IPC.
This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.105/2017 of Nelamangala Rural P.S., Bangalore District, for the offences P/U/Ss 143, 147, 323, 324, 504 and 302 read with Section 149 of IPC.)
1. Since these two petitions are in respect of the same crim
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number and common questions of law and facts are involved in both the petitions, they are taken together for disposal by this common order, in order to avoid repetition of facts and law.2. Crl.P.No.7633/2017 is by accused No.1 and Crl.P.No.6489/2017 is by accused No.5, both under Section 439 of Cr.P.C. seeking their release on bail for the offences punishable under Sections 143, 147, 323, 324, 504, 307 r/w Section 149 of IPC registered in respondent - police station Crime No.105/2017. After the demise of the injured subsequently, the offence under Section 302 of IPC is also inserted in the case.3. The case of the prosecution as per the complaint averments are, wife of the deceased is the complainant. She has stated that on 10.4.2017 around 9.15 p.m. she heard somebody crying and shouting in front of house of accused No.1. Thereafter, her brother- in-law Bharath came and informed the complainant that accused no.1 along with other accused persons picked up quarrel with the deceased. As such, the complainant went to the said place and saw that her husband was pushed into the drain and there were injuries on his body. Then the husband of the complainant was shifted to the hospital and on 13.4.2017 he succumbed to the injuries while on treatment. On the basis of the said complaint filed on 13.4.2017, case came to be registered.4. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.1 and 5 and also the learned High Court Government Pleader appearing for the respondent-State, in both the petitions.5. Learned counsel for the petitioners during the course of their arguments submitted that there is a case filed by accused No.1 against the deceased which is registered in crime No.102/2017 for the offences under Sections 504 and 324 of IPC. Though the incident has taken place on 10.4.2017, the complaint came to be filed on 13.4.2017. There is a delay of four days in lodging the complaint, for which no proper explanation is offered by the prosecution. As per the prosecution, on the very date of the incident the injured Shashidhar has been admitted to the hospital and if that is so, it is a medico legal case. Certainly there should have been intimation to the police regarding the said incident. He has also produced the injury certificate issued by the General Hospital at Nelamangala on 6.6.2017 in respect of accused No.1, wherein it is mentioned that injuries are simple in nature. Hence, it is submitted that there is a case and counter case and the first complaint is by the accused No.1 as against the deceased. As per the prosecution case, accused No.2 one Anjana Murthy has assaulted the deceased with club on his head and other accused persons have only assaulted with their upper and lower limbs on the stomach portion and other parts of the body. Hence, the offence under Section 302 of IPC will not be attracted to the case on hand and at the most, so far as these two petitioners are concerned, the offence under Section 325 of IPC would be attracted. It is further submitted that now the investigation is completed and charge sheet is also filed. Even as per the post mortem report the cause of death is due to head injury sustained. Hence, it is submitted that petitioners may be enlarged on bail.6. Per contra, learned High Court Government Pleader in respect of both the petitions has submitted that there are eyewitnesses to the incident. The complainant, Bharath, C.W.6 and the mother of the deceased, C.W.10 are all eyewitnesses to the incident. There is allegation against the petitioners that they have also assaulted the deceased. In view of these materials, petitioners are not entitled to be granted with bail.7. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record, so also, the charge sheet material containing the statement of witnesses, panchanama etc.,8. As per the complaint averments, there is a specific allegation as against Anjanamurthy who is accused No.2 that he assaulted the deceased with club on his head. The petitioners herein and other accused persons said to have assaulted the deceased with their upper and lower limbs and made him to fall into the drain. No doubt, C.Ws.6, 10 and the complainant claims that they are the eyewitnesses to the incident. Even if their version is accepted, prima facie, at this stage, there is no allegation that these two petitioners were possessing deadly weapons with which they have assaulted the deceased. Apart from that, there is a counter complaint filed by accused No.1, who has also sustained injury, as per the medical certificate produced. Further, the date and time of incident mentioned in both the FIRs is same, which prima facie shows they are the case and counter case. The trial Court during the course of trial has to ascertain as to who is the aggressor responsible for the alleged incident. Not only that, the death has not taken immediately after the incident and as such, initially the FIR was registered for the offence under Section 307 of IPC. Even according to the case of the prosecution the death has occurred on 13.4.2017 i.e., after four days of the incident. Therefore, as rightly submitted by the learned counsel appearing for the petitioners, the materials produced prima facie show that at the most the offence under Section 304(ii) of IPC would be attracted and not Section 302 of IPC.9. Now the investigation is completed and charge sheet is also filed. In view of the counter complaint by accused No.1 and as he has also sustained injury in the incident, I am of the opinion that these are the two fit cases wherein discretion could be exercised by this Court.10. Accordingly, both the petitions are allowed. Petitioners/accused Nos.1 and 5 are ordered to be released on bail for the offence punishable under Sections 143, 147, 323, 324, 504, 307, 302 r/w Section 149 of IPC registered in respondent - police station Crime No.105/2017, subject to the following conditions:i. Petitioners/accused Nos.1 and 5 shall execute a personal bond for a sum of Rs.1,00,000/- each and furnish one solvent surety for the likesum to the satisfaction of the concerned Court.ii. Petitioners shall not tamper with any of the prosecution witnesses, directly or indirectly.iii. Petitioners shall appear before the concerned Court regularly.