Basappa vs State of Karnataka

Budihal R.B., J.—This is a petition filed by the petitioner-accused No. 1 u/S 439 of Cr.P.C. seeking his release on bail of the alleged offences punishable u/S 323, 324, 307 r/w Sec. 34 of IPC and also under Section 3(1)(x), 2(2)(5) of SC & ST (POA) Act registered in respondent Police Station Crime No. 165/2015.

Brief facts of the prosecution case as per the complaint averments are that one Vittal who is the brother of the deceased lodged a complaint on 04.07.2015 at 8.25 hours on the information from his father that his father came with a crime enquiry, he told that accused Nos. 1 to 3 thinking deceased Anil, brother of the complainant has given a love letter to the daughter of the petitioner herein and they have abused in filthy language by taking the name of his caste and attempted to commit murder by assaulting with agricultural equipment and when he and his wife went to the rescue the deceased Anil, the accused assaulted them. It is also alleged that complainant and one Manju went in search of the deceased Anil but he was not traced out. Thereafter on 02.07.2015 at about 6.00-a.m. complainant''s father and mother informed them in telephone that Anil is alive in their land. Thereafter the complainant took the deceased Anil to local hospital and finally on 02.07.2015 took the deceased to BLDE Hospital for further treatment. It is also alleged that on 06.07.2015 at 7.53 AM the said Anil died at BLDE Hospital. It is relevant to mention that during the course of recording the statement of the witnesses complainant in his further statement stated that while the deceased Anil was admitted in Mahalingapur he told before the complainant that, on 02.07.2015 at about 4 p.m. one Venkat, Pavan and Manjunath have administered him poison but the deceased has not told about the assault made by this petitioner. On the basis of the said complaint a case has been registered for the alleged offences and after the death of the deceased in the hospital on 06.07.2015, on the requisition of the Police the offence under Section 302 of IPC is also inserted in the case.

I have heard arguments of the learned counsel for the petitioner-accused No. 1 and also the learned Govt. Pleader for the respondent-State.

Learned counsel for the petitioner submits that there is no prima facie material placed by the prosecution as against the present petitioner and so far as administering poison to the deceased is concerned, it was stated to be on 02.07.2015, i.e., one day after the alleged incident. He also submitted that though administering poison there is no name of the present petitioner and it is against other three persons. He also submitted that there is a delay in lodging the complaint. Though the incident took place on 01.07.2015 when complaint was lodged on 04.07.2015 he submitted that after having deliberation and discussion the complaint is filed. Hence, the complaint is afterthought.

Learned counsel further submitted that now the investigation of the case is completed and charge sheet is filed. He also produced copy of the charge sheet. He further submitted that accused Nos. 2 and 3 have been enlarged on bail by the order of the learned Sessions Judge and hence by imposing reasonable conditions the petitioner may be enlarged on bail.

Per contra learned Govt. Pleader during her submission submitted that regarding the assault by the present petitioner and others are concerned, there are three eyewitnesses and even father of complainant is also an eyewitness to the incident. She also submitted that though in the complaint it is not stated by the complainant about administering the poison to the deceased but as per the further statement of the complainant it is narrated even about administering poison to the deceased. Hence, she submitted that looking to the statement of the eyewitnesses the prosecution has made out a prima facie case about the involvement of the present petitioner in committing the alleged offence. Hence, she submitted that petitioner is not entitled to be enlarged on bail.

I have perused the averments made in the bail petition, FIR, Complaint and the entire charge sheet material produced in the case made over by the learned counsel for the petitioner. Looking to the complaint averments it emerges that the complainant is not an eyewitness to the incident. It is as per the say made by the father of the complainant, the complainant made averments in the complaint. It is no doubt true, as per the prosecution case father of the complainant and other three independent witnesses are said to be the eyewitnesses to the alleged incident. The incident is said to have been taken place on 01.07.2015 and the complaint was lodged on 04.07.2015 after the delay of four days.

On perusal of the complaint averments it is stated by the complainant that after having discussion with the elders and other persons ultimately he lodged complaint. Hence, there is a delay. This fact prima facie goes to show that there was deliberation before filing the complaint. Apart from that, the incident was registered for the alleged offence u/S 307 of IPC at the first instance and the injured was alive for six days. He was getting treatment in the hospital and the death was said to have been taken place only on 06.07.2015.

Looking to all these materials placed on record prima facie it goes to show that even if the case of the prosecution going to be accepted as it is, the case may come under Section 304(II) of the IPC. Accused Nos. 2 and 3 have already been considered and enlarged on bail by the Sessions Court. Investigation of the case is also completed and charge sheet is filed. In view of these materials I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner-accused No. 1. Accordingly, the following order is passed.

Petition is allowed. Petitioner-accused No. 1 in Mudhol Police Station Crime No. 165/2015 is ordered to be released on bail of the alleged offences subject to the following conditions.

"1) The petitioner shall execute a personal bond for a sum of Rs. 1,00,000/- with a surety for the likesum to the satisfaction of the trial Court.

2) The petitioner shall not tamper with the prosecution witnesses directly and indirectly.

3) The petitioner shall appear before the concerned Court regularly."