(Prayer: This criminal petition is filed u/S.439 of Cr.P.C. praying that the petitioner be enlarged on regular bail in S.C.No.239 of 2017, Katakol P.S Crime No.98 of 2017 u/Ss.302, 201 read with Section 34 of IPC and Sections 3(1)(r)(w), 3(2)(V) of SC/S T (POA) Act, 2015, on the file of the 3 rd Addl. District and Sessions Court, Belagavi.)1. This petition is filed by the accused No.1 under Section 439 of the Cr.P.C. seeking bail in Crime No.98 of 2017 of Katakol Police Station, (S.C. No.239 of 2017 pending before 3rd Addl. District and Sessions Court, Belagavi) registered for the offences punishable under Sections 302, 201 read with Section 34 of the IPC and Sections 3(1)(r)(w), 3(2)(V) of SC/S T (POA) Act, 2015,2. The case of the prosecution is that on 20.05.2017 at about 10:00 hours one Shri Timmanna Mudakappa Talawar filed a written complaint against the petitioner-accused No.1 and two others in Katakol P.S. and the same came to be registered in Crime No.98 of 2017 for the offences punishable under Sections 302, 201 read with Section 34 of the IPC and Sections 3(1)(r)(w), 3(2)(V) of SC/S T (POA) Act,1989. In the complaint, it is alleged that about one year ago the complainant's younger sister Savakka purchased one gunta plot from the land of Basavappa Hulagajjanavar and they constructed temporary shed over it and residing in it and adjoining to the said plot, accused No.1 - Ramesh wa s having his land and he was having a borewell in it and the deceased - Savakka used to go there for collecting water from the said borewell and they developed illicit intimacy. The petitioner - accused No.1 advanced loan of Rs.50,000/- to Savakka for construction of house. Her husband Neelappa came to know about the illicit relationship and there was a quarrel between Neelappa and the petitioner - accused No.1. The elders of the village pacified and warned the petitioner to stop the relationship. Savakka and her husband refused to repay the loan amount of Rs.50,000/- to petitioner - accused No.1 and the same is irritated the petitioner, but he continued the illicit relationship with Savakka.3. On 09.04.2017 at about 10:00 a.m. the complainant's wife Renuka and his younger sister Savakka went to Aladakatti village for death anniversary of their relative Ningappa Talawar and they did not return till 6:00 p.m. and the complainant's son Krishna called Renuka over phone and asked about her whereabouts and she replied that they have come to Yaragatti and are waiting for transport. They did not return till 9:00 p.m. and when they tried to contact, her phone was switched off. Then on the next day, they searched for both of the m, they could not be traced. Then on 11.04.2017, the complainant filed missing complaint with Murgod P.S., which came to be registered in Crime No.104 of 2017. They continued their search for missing persons and during that time, they enquired with the petitioner and there was a quarrel and after that the petitioner left the village. When they were searching for missing persons, the village elder Bapusab Hassangouda Patil came and told them that on the previous night this petitioner had approached him and told that on 09.04.2017, Savakka and Renuka had called him over phone and asked him to come to Yaragatti and at that time the petitioner and his relative Panchappa Kareppa Hoonnikoll (accused No.2) and Basavaraj Maruti Malajanavar (accused No.3) went to Yaragatti and took them to Chandaragi cross, Godachi gate, Kamanakolla forest area and had sex with them. The petitioner had sex with Savakka. Panchappa (accused No.2) had sex with Renuka. Thereafter the accused murdered both of them and buried their dead bodies in the forest of Kamanakolla. The said complaint came to be registered in Crime NO.98/2017 for the aforesaid offences. The Police after investigation have filed the charge sheet and now the case is pending for trial in S.C.No.239/2017 and the same came to be rejected by 3 rd Addl. District and Sessions Court, Belgavi, by its order dated 14/07/2020. Therefore, the petitioner is before this Court.4. Heard the arguments of Shri S.M.Muchandi, learned counsel for the petitioner and Smt. Seema Shiva Naik, learned HCGP and Shri Ashok A.Naik, learned counsel for the complainant.5. It is the contention of the learned counsel for the petitioner that the complaint has been filed after 41 days of the incident falsely implicating the petitioner-accused No.1. It is the further submission of the learned counsel that the case is based on circumstantial evidence and extra judicial confession made by accused No.1 before CW10 - Mabusab. He further submits that as per the complaint there are phone call conversations between the deceased and accused No.1. It is his further submission that accused Nos.2 and 3 who are similarly placed to that of accused No.1 have been granted bail by the trial Court and therefore, on the ground of parity, the petitioner-accused No.1 is entitled for bail. It is further submitted that the petitioner - accused No.1 is in judicial custody since 20.05.2017 and even though the witnesses have been summoned, they appeared and taken time for giving evidence. It is further submission that the father of the petitioner is suffering from Cancer. With these, he prays for granting of bail.6. Per contra, learned High Court Government Pleader submitted that petitioner - accused No.1 herein had illicit relationship with the deceased - Savakka and he had advanced a loan of Rs.50,000/- to her and there was a quarrel between the petitioner - accused No.1 and the husband of the deceased - Savakka and they refused to repay the loan amount of Rs.50,000/-. Therefore, the petitioner - accused No.1 was angry with the deceased-Savakka and her husband. It is her further submission that the petitioner - accused No.1 has made extra judicial confession about his guilt of killing the deceased in the forest area and burring their bodies. It is her further submission that accused Nos.1 to 3 have shown the place where they buried the dead bodies and bodies have been recovered from that place. It is her further submission that if the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, she prayed to dismiss the petition.7. Learned counsel for the complainant argued similar to that of the arguments advanced by the leaned High Court Government Pleader.8. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. Even according to the prosecution case, the case is based on circumstantial evidence and extra judicial confession alleged to have been made by accused No.1 before CW10 - Mabusab. The petitioner-accused No.1 is in judicial custody since 20.05.2017, more than three years have elapsed, but trial is yet to commence. The complainant and other witnesses have been summon for giving evidence, but they are taking time, the same is recorded in the Order Sheet dated 24.04.2019. The motive alleged is that the petitioner - accused No.1 was angry with the husband of the deceased and the deceased - Savakka towards they refused to repay the loan amount of Rs.50,000/-. Accused Nos.2 and 3 who are similarly placed to that of petitioner-accused No.1 have been granted bail in Crl.Misc.Nos.2828/2017 and 2531/2017 by the trial Court and on the ground of parity, the petitioner - accused No.1 is entitled for bail. Whether the petitioner - accused No.1 has committed the alleged offence is a matter of trial.9. It is well settled that matters to be considered in an application for bail are:"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;(ii) nature and gravity of the charge;(iii) severity of the punishment in the event of conviction;(iv) danger of the accused absconding or fleeing, if released on bail;(v) character, behaviour, means, position and standing of the accused;(vi) likelihood of the offence being repeated;(vii) reasonable apprehension of the witnesses being tampered with; and(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."10. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under:"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."11. In the present case, investigation is completed, charge sheet has been filed and the case is pending since last three years. No grounds have been made out by the prosecution to show that the custodial interrogation of the petitioner is necessary. There are no criminal antecedents against the petitioner - accused No.1 and the father of the petitioner - accused No.1 is suffering from cancer. The petitioner is the resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set
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right by imposing stringent conditions.12. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:ORDERThe petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner shall be released on bail in Crime No.98 of 2017 of Katakol Police Station 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 surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety.ii) The petitioner shall not indulge in tampering the prosecution witnesses.iii) The petitioner shall not leave the jurisdiction of the trial Court without prior permission till the disposal of the case.iv) The petitioner shall attend the Court regularly and co-operate in speedy disposal of the case.