Amit vs The State of Karnataka

Budihal R.B., J.—This petition is filed by the petitioner-accused No. 7 under Section 439 of Cr.P.C. seeking his release on bail of the alleged offences punishable under Sections 143, 147, 148, 307, 326 read with Section 149 of IPC registered in respondent Police Station Crime No. 162/2014 and subsequently, offence under Section 302 of IPC was also inserted in the case.

The brief facts of the prosecution case as per the averments in the complaint that father of the deceased lodged the complaint on 24.09.2014 stating that complainant and deceased went to Masjid for offering prayer and at about 7.20 p.m. they returned home. Thereafter, the deceased went out to meet his friends, and at about 8.30 p.m. when the complainant was in the house, somebody telephoned and informed that somebody had assaulted Firoz and he had fallen down and he was shifted to Civil Hospital, Belagavi. Immediately, complainant took his wife and daughter Shabaz along with family members went to KLE Hospital, wherein the complainant noticed that the deceased sustained 15 to 16 stab injuries to the back side of the deceased and 5 to 6 injuries on his chest and on the abdomen. Thereafter, he came to know that on 24.09.2014 at about 7.20 p.m. the deceased had gone to Kata ground near Sant Meera School and between 7.20 p.m. and 8.30 p.m. some miscreants had assaulted the deceased. Further the complainant has got informed that one Vinay, Sushya and Maruti and otherS were appeared on the spot of the incident. On the basis of the said complaint, case has been registered for the alleged offences, but subsequently, offence under Section 302 of IPC was also inserted in the case.

Heard the arguments of the learned counsel appearing for the petitioner-accused No. 7 and also the learned HCGP appearing for the respondent-State.

Learned counsel for the petitioner has submitted that accused Nos. 3, 6, 8 and 9 were already released on bail by the order of the learned Sessions Judge. He has submitted that the allegation against the petitioner is that he assaulted the deceased on the head portion with the broken bottle, but looking to the FSL report there is no blood stains on the said bottle. He has also submitted that the incident has taken place during night, hence, it raises reasonable doubt as to how the eye-witnesses have seen the incident. Even if, the eye-witnesses have told the name of the accused persons to the complainant, complainant ought to have mentioned the name of the petitioner in the complaint. He has further submitted that perusing the entire charge sheet material, there is no prima-facie case made out as against the petitioner and in the original complaint his name was not figured, so also in the FIR, which was registered in the case. In support of his arguments, learned counsel for the petitioner has relied upon the order of this Court reported in 2014 Cr. R. 811 (Kant.) rendered in Crl. P. No. 4655/2014 decided on 9.09.2014.

Per contra, learned HCGP has submitted that there are three eye-witness to the incident, they are CWs-10, 11 and 12, who have consistently stated before the Investigating Officer on the very next day of the incident that they have seen the petitioner at the spot and he was assaulting the deceased with the bottle. He has submitted that looking to the PM report, there are multiple injuries sustained and death is because of the multiple injuries. Hence, learned HCGP has submitted that when the case of the prosecution is also supported by the medical evidence, at this stage, petitioner is not entitled to be granted with bail.

I have perused the averments made in the bail petition, FIR, complaint, order passed by the Sessions Judge rejecting the bail application, so also the decision relied upon by the learned counsel for the petitioner, which is referred above.

It is no doubt true, in the complaint name of the petitioner is not figured, however, complainant has mentioned the names of three assailants specifically, he has also stated in the complaint "as others". Complainant is not the eye-witness to the incident. Complaint is hearsay but as per the case of the prosecution there are three eye-witnesses i.e., C.Ws-10, 11 and 12. I have perused the statement of those three eye-witnesses from the charge sheet material produced by the learned counsel for the petitioner. All these three witnesses have stated in their statement that they have seen petitioner-accused No. 7 at the spot, he assaulted the deceased with the broken bottle and then he left the bottle at the spot and went away. Prosecution materials show that the bottle was seized during investigation. So far as the contention of the learned counsel for the petitioner that there are no blood stains on the bottle as per the FSL report and the incident was during night, there was no opportunity for the eye-witnesses to see the incident, regarding all these aspects, it is only during the course of trial, after recording the evidence of the eye-witnesses these aspects will be ascertained and not while considering the bail application. I have also perused decision relied upon by the learned counsel for the petitioner, but looking to the facts in the said case and also the facts and circumstances in the case on hand, they are not exactly one and the same. Therefore, the said decision will not come to the aid and assistance of the petitioner at this stage.

Looking to the prosecution material and the doctor''s opinion in the PM report, they prima-facie show the involvement of the petitioner in committing the alleged offence. The offence alleged is a serious offence punishable with death or imprisonment for life. In view of above, I am of the opinion that it is not a fit case to exercise the discretion in favour of the petitioner. Accordingly, petition is rejected.

As submitted by the learned counsel for the petitioner that since one year the petitioner is in custody, the concerned trial Court has to take up the case on priority basis and to dispose of the same as early as possible.