Ajeet @ Ajay vs State Of Karnataka

M.G. Uma, J

The petitioner-accused No.3 is before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.65 of 2021 of Chadchan Police Station, registered for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short 'IPC'), on the basis of the first information lodged by informant Sri.Mallana Dyapur. After investigation, the charge sheet is filed for the offences punishable under Sections 120B, 302, 201, 341 read with Section 34 of IPC.

Brief facts of the case are that, the informant Mallana Dyapur filed first information against accused No.1 and others alleging that his son Aravind has studied B.A. degree and after completing his education, he started residing at Indi in a rented room along with his friends and was preparing for competitive examination. He came in contact with accused No.1 and both of them were friendly. However, accused No.1 had already got married accused No.3. Since 10.07.2021, deceased Aravind was found missing and his mobile phone was switched off. On 13.07.2021, the informant came to know about a dead body lying near Chadchan. The informant identified the dead body which was found by the side of Humadi road in a half burnt position. There were several injuries found on the dead body and he suspected that accused No.1 who had married accused No.3 along with her family members might have caused the death of the deceased by assaulting with sharp edged weapon and burning the dead body to screen the evidence. On the basis of this information, the FIR was registered and the investigation was undertaken. After investigation, the charge sheet was filed as stated above. It is stated that the matter is still pending for committal to the Trial Court.

Heard Sri. C. V. Nagesh, learned senior counsel appearing for Sri Raghavendra K. and Sri S.S.Mamadapur, for the petitioner and Sri H.S.Shankar, learned High Court Government Pleader for the respondent-State. Perused the materials on record.

Learned senior counsel for the petitioner-accused No.3 submitted that the petitioner is innocent and has not committed any offences as alleged. He has been falsely implicated in the matter without any basis. He was apprehended on 16.07.2021 and since then he is in judicial custody. The investigation has been completed and the charge sheet is also filed. There are no eye witness to the incident. The prosecution is relying on the circumstantial evidence. This petitioner is not named in the FIR or even during inquest mahazar.

Learned senior counsel further submitted that the prosecution is alleging motive for the accused to commit the offence. But there are absolutely no materials to prove motive for the petitioner to cause the death of the deceased. However, accused No.1 who is said to have strong motive to commit the offence is already on bail. The second circumstance relied on by the prosecution is recovery of the incriminating materials. An empty plastic can and a fist sized stone were said to have been recovered at the instance of accused Nos.2 and 3 on 16.07.2021. The spot mahazar was conducted on 13.07.2021, but these incriminating materials were not found at the spot. Therefore, recovery of the materials at the instance of accused Nos.2 and 3 jointly cannot be believed. Even the recovery of the knife said to have been used in the commission of offence also cannot be believed at this stage. There are no strong circumstances to connect the petitioner to the offence in question. Since the investigation is already completed, detention of the petitioner in custody would amount to pre-trial punishment. The petitioner is the permanent resident of the address mentioned in the cause title to the petition and is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition.

Learned senior counsel also placed reliance in the case of Narsinbhai Haribhai Prajapati Vs Chhatrasinh and others AIR 1977 SC 1753 to contend that recovery of knife said to be at the instance of the petitioner is a weak evidence and the same cannot be the ground to detain the petitioner in custody.

Per contra, learned High Court Government Pleader opposing the petition submitted that serious allegations are made against the petitioner for having committed the offences which is punishable either with death or imprisonment for life. Accused No1 is the wife of the present petitioner who were acquainted with deceased during her college days. Since the petitioner married accused No.1 and came to know about the acquaintance of his wife with the deceased, he criminally conspired with accused Nos.1 and 2 and caused the death of the deceased by assaulting with a knife which was recovered at his instance. The dead body was burnt with an intention to cause disappearance of the evidence. Empty plastic can that was used for pouring kerosene and the stone used for hitting the deceased were recovered at the instance of petitioner and accused No.2. The charge sheet is already filed and there are clinching materials against the petitioner. Looking to the seriousness of the offences, the petitioner is not entitled for grant of bail. Hence, he prays for dismissal of the petition.

In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

“Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?”

My answer to the above point is in ‘affirmative’ for the following:

REASONS

It is the specific contention of the prosecution that the petitioner being the husband of the accused no.1 had strong motive to cause the death of the deceased as he was having acquaintance with his wife. Even though there are no eye witnesses to the incident, the prosecution is relying on the circumstantial evidence that is motive and recovery of incriminating materials. It is contended that the empty plastic can and stone were jointly recovered at the instance of the accused from the spot. The prosecution is also relying on the knife at the instance of the present petitioner.

Even though the learned counsel placed reliance on Narsinbhai Haribhai Prajapathi (supra), the Hon’ble Apex Court in the said case considered the circumstantial evidence of motive and recovery of the incriminating materials and held that they themselves are wholly insufficient for sustaining the charge of murder of which the respondents are accused of. It is pertinent to note that the matter that was considered by the Hon’ble Apex Court was after full-fledged trial.

In the present case, it is only at the stage of considering the bail petition, therefore, the recovery of the incriminating material said to be at the instance of the accused cannot be ignored. However, the investigation is completed and charge sheet is filed. The matter is still pending to commit the matter to the sessions Court for trial. The trial in the matter may take considerably long period of time. It is not the contention of the prosecution that the petitioner is to be detained in custody for any purpose except to ensure his presence before the Trial Court and to safeguard the interest of the prosecution witnesses. Reasonable conditions may be imposed while allowing the petition to take care of interest of the prosecution and its witnesses. Hence, I am of the opinion that petition is liable to be allowed.

Accordingly, I answer the above point in the affirmative and proceed to pass the following:

ORDER

The petition is allowed.

The petitioner is ordered to be enlarged on bail in Crime No.65/2021 of Chadachan Police Station, on obtaining the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the jurisdictional Court, subject to the following conditions:

a). The petitioner shall not commit similar offences.

b). The petitioner shall not threaten or tamper with the prosecution witnesses.

c). The petitioner shall appear before the Court as and when required.

In case, the petitioner violates any of the conditions as stated above, the prosecution will be at liberty to move the Trial Court seeking cancellation of bail.

On furnishing the sureties by the petitioner, the Trial Court is at liberty to direct the Investigating Officer to verify the correctness of the address and authenticity of the documents furnished by the petitioner and the sureties and a report may be called for in that regard, which is to be submitted by the Investigating Officer within 5 days. The Trial Court on satisfaction, may proceed to accept the sureties for the purpose of releasing the petitioner on bail.