At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE S. SUNIL DUTT YADAV
For the Petitioner: Hashmath Pasha, Senior Advocate, Syed Muzakkir Ahmed, Advocate. For the Respondent: Yashodha, HCGP.
(Prayer: This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Cr.No.08/2020 registered by Chamarajpet Police Station, Bengaluru for the offences p/u/s 120(B) and 302 r/w 149 of IPC.)
1. Petitioner who is accused No.1 is seeking to be enlarged on bail pursuant to his detention with respect to the proceedings in Crime No.8/2020 for the offences punishable under Sections 120B, 302 read with Section 149 of CPC.
2. The case as made out by the prosecution is that on 23.01.2020, complaint came to be made at 12.30 a.m. by Karthik stating that his brother-in-law has been murdered at 5th Cross of Azad Nagar, Bangalore. It is further submitted that when the informant along with his elder brother came to the scene of occurrence, they noticed that the police had shifted the dead body and they went to the hospital and saw the dead body of Lokesh Kumar. On the basis of the said information, complaint came to be lodged, FIR is registered, investigation is complete and charge sheet has been filed.
3. It is to be noticed that the charge sheet makes out a case of commission of offence by all of the accused after having conspired together and it is further stated that the premise of such imputation against the accused is on the basis of the version of the witnesses - C.Ws. 3 and 4 (C.Ws. 2 and 3 as per Column No. 14 of the charge sheet) and hereinafter referred to as witnesses C.Ws. 2 and 3.
4. Sri. Hashmath Pasha, learned Senior counsel appearing on behalf of the petitioner would submit that the case of the prosecution rests primarily on the statement of witnesses - C.Ws. 2 and 3, stated to have been recorded on 24.01.2020. It is submitted that the said reliance on the statement cannot be assigned with any weightage in light of the fact that there is no reference of recording the statement of the eye witnesses in the FIR, in the spot mahazar and in inquest proceedings, all of which were at the earliest point of time. It is further submitted that in the remand applications dated 28.01.2020, 30.01.2020, 31.01.2020 and 01.02.2020, there is no reference to the statement of the said witnesses. It is further submitted that in the case diary also, there is no reference to the recording of the statements of C.Ws. 2 and 3 on the date as made out by the prosecution. Hence, it is submitted that the version at the earliest point of time does not refer to the presence of any witnesses nor has any motive been pointed out. It is further submitted that the deceased was a man having criminal antecedents as noticed in the inquest proceedings, it is clearly recorded that the motive and as to who has committed the said offence are under investigation and not forthcoming.
5. Learned High Court Government Pleader on the other hand points out that there has been recovery from the said accused of weapons and that the eye witnesses have stated that it is this accused along with others who have done the deceased to death.
6. Heard both sides.
7. It is not in dispute that the FIR does not reveal identity of any person as being the accused. Insofar as the spot mahazar and the inquest proceedings made on 23.01.2020, there is no reference with respect to any eye witnesses as having witnessed the commission of the said offence. It is further to be noted that the statements of the witnesses are stated to have been recorded on 24.01.2020 and in none of the remand applications dated 28.01.2020, 30.01.2020, 31.01.2020 and 01.02.2020, there is any reference to the recording of the statements of the said eye witnesses. This aspect of the matter prima facie raises a doubt as to the veracity of the statements of C.Ws. 2 and 3 which is a matter that has to be explained by the prosecution during trial.
8. At this stage, taking note of the submissions as made by the petitioner and noticing that the case diary does not have any reference of recording of the statements of C.Ws. 2 and 3 on 24.01.2020 and remand applications referred to above also do not refer to any recording of the statement of the said witnesses and taking note of the material on record, there is no justification for his continued detention after filing of charge sheet.
9. It has also come on record in the inquest proceedings that the deceased was a man having criminal antecedents and involved in number of cases and the investigating authorities themselves state that the motive and as to who has committed the offence is a matter that requires detailed investigation.
10. The proof of role of the accused in commission of offence is a matter to be established during trial. Present proceedings cannot be construed to be punitive in nature. The learned Sessions Judge has brushed aside the contradictions in the case of the prosecution as pointed out by the counsel for the accused in a cryptic and cursory manner.
11. In light of the discussions as made above and having noticed the material held out by the prosecution as incriminating the accused, petitioner is entitled to be released on bail.
12. Accordingly, the bail petition filed by the petitioner under Sec. 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in Crime No.8/2020 for the offences punishable under Sections 120B, 302 read with Section 149 of CPC, subject to the following conditions:
(i) The petitioner shall execute a personal bond of `1,00,000/- (Rupees one Lakh only) with one surety for the likesum to the satisfaction of the concerned Court.
(ii) The petitioner shall fully co-operate for the expeditious disposal of the trial.
(iii) The petitioner shall physically present himsel
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f and mark his attendance before the Station House Officer, Chamarajpet Police Station, Chickpet Sub-Division, Bengaluru, once in a month between 10.00 a.m. and 5.00 p.m., till conclusion of the trial. (iv) The petitioner shall not tamper with evidence, influence in any way any witness. (v) In the event of change of address, the petitioner to inform the same to the concerned SHO. (vi) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail. Any observation made herein shall not be taken as an expression of opinion on the merits of the case.