Ajay Kumar Shetty vs The State of Karnataka

R.B. Budihal, J.—This is the petition filed by the petitioner-accused No. 5 u/s 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 302 and 394 r/w. Section 34 of IPC registered by the respondent-police in Crime No. 942/2012.

Heard the arguments of the learned counsel appearing for the petitioner-accused No. 5 and also learned High Court Government Pleader for the respondent-State.

Learned counsel for the petitioner during the course of his argument submitted that FIR was registered against the unknown persons and even at the subsequent time, the present petitioner has been arrested by the police basing on the statement made by the co-accused i.e., accused No. 1. He also made the submission that even with regard to recovery of the gold ornaments, prosecution papers are not consistent and the process memo produced in the case goes to show that the gold ornaments, cash and iron rod were seized from accused Nos. 1 to 3 only. Hence, he made the submission that the prosecution case rests on the circumstantial evidence and there are no direct eye witnesses to the alleged incident. Counsel made the submission that the present petitioner was arrested in connection with the offence said to have been committed u/s 399 and 402 of IPC. But in the said case, the accused has already been granted with bail by the order of this Court. Hence, he made the submission that so far as the present case is concerned, no prima-facie material is placed by the prosecution to show the involvement of the petitioner in the commission of the alleged offences. He submitted that since from the date of arrest, he is in custody. By imposing any reasonable conditions, petitioner may be admitted to bail.

As against this, learned High Court Government Pleader during the course of his argument submitted that though at the first instance, the case was registered against the unknown persons, but during the course of investigation, Investigating Officer has collected the material even against the present petitioner. He made the submission that accused Nos. 1 to 5 entered into the house of the deceased, when the deceased was alone in the house and they have committed the murder of the deceased and also committed the robbery of the ornaments, cash kept in the said house. He submitted that there is a joint recovery, which goes to show that 10 gold ornaments, cash and iron rod have been seized from all the accused persons. Hence, he made the submission that this material collected clearly goes to show the involvement of the present petitioner in the commission of the alleged offences. Hence, he submitted that petitioner is not entitled to be granted with bail.

I have perused the averments made in the bail petition, FIR, complaint, order of the lower Court on the bail petition and other materials placed on record. I have also perused the decision relied upon by the learned counsel for the petitioner reported in Siddappa Doddasadeppa Gundyagol and Others Vs. State of Karnataka, . Looking to the complaint averments, the husband of the deceased lodged the complaint in this case and it is no doubt true that the complaint was lodged against the unknown persons. But looking to the investigation materials, they goes to show that the present petitioner and his involvement in the case was based on the statement made by the co-accused i.e., accused No. 1. Perusing the investigation materials, though it is submitted by the learned High Court Government Pleader that there is a joint recovery of the gold ornaments as per the mahazer produced in the case, but the materials also goes to show that the said ornaments have been seized from accused Nos. 1 to 3. Looking to the materials placed on record, there is no consistency in the case of the prosecution, sofar as the recovery is concerned and to show the involvement of the present petitioner in the case. Even according to the case of the prosecution there are no direct eye witnesses to the alleged incident and the case rests on the circumstantial evidence. As submitted by both the side, now the investigation of the case is completed and charge sheet has been filed. It is also submitted by the counsel appearing for the petitioner that since from the date of arrest, petitioner is in custody. Therefore, by imposing stringent conditions and to secure his presence to appear before the trial Court during the course of trial proceedings, petitioner can be enlarged on bail.

Accordingly, petition is allowed. The petitioner-accused No. 5 is ordered to be released on bail for the offences punishable under Sections 302 and 394 of IPC r/w. Section 34 of IPC registered by the respondent-police in Crime No. 942/2012, 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;

(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.