Basava alias Basavaraj and another - Appellants @HASH State of Karnataka

Budihal R.B., J. - Heard the arguments of the learned counsel appearing for the petitioners-accused Nos.1 and 2 and also the learned Government Pleader for the respondent-State.

This petition is filed by the petitioners-accused Nos. 1 and 2 under Section 439 of Cr. P. C., seeking their release on bail of the alleged offences punishable under Sections 302 and 448 read with Section 34 of IPC registered in respondent-Police Station Crime No.29 of 2016.

The brief facts of the prosecution case as per the complaint averments that the informant had three brothers and the brother Mukkawar who is the third son of his father was residing separately along with his wife and two children. Nearby the house of Mukkuraj there is house of one Basava Waddar. In the house of Basanna S/o Sangappa Waddar his sister Gouramma aged about 19 years was also residing at Makkuraj was staying at Gouramma whenever he was passing in front of the house of Basanna waddar. It is further stated that about one year back Basava and his brother Mudiyappa had assaulted Mukkuraj and not to make the same as a big issue the family members of the informant kept quite. That on 26.01.2016 at about 6:30 p.m. when the informant was near his house one person known to the informant Raju S/o Nataraj came near - the house of informant had informed him that at about 5:30 p.m. Basava S/o Rangappa and Madiyappa s/o Rangappa have assaulted Mukkuraj by entering in his house with sticks and Mukkuraj has sustained bleeding injuries and he was lying in his house and is not in a possession to speak. Immediately the informant and Raju went to the house of his elder brother Mukkaraj and they find the Mukkaraj was lying on the ground with bleeding injuries and he was not in a position to speak. The informant summoned an auto and he was treated in the Sirwar Hospital and thereafter shifted to Dhanwantri Hospital, Raichur and later to Bellary Hospital. Ultimately he succumbed to the injuries on 03.03.2016 at about 9:40 p.m. On the basis of the said complaint case came to be registered against the petitioners for the alleged offences.

The learned counsel appearing for the petitioners-accused Nos.land 2 during the course of arguments made the submission that looking to the prosecution material it is no doubt true there are eye-witnesses who said to have witnessing the incident personally. The learned counsel also made the submission that the main allegation as against the present petitioners that they have assaulted the deceased with stick. It is his contention that looking to the medical opinion the doctor who conducted the post-mortem examination over the dead body of the deceased gave the opinion that there is semi circular injuries having the clean-cut margin. Hence, it is the contention of the learned counsel for the petitioners that if person is assaulted with the stick no injuries as stated by the doctor could be caused. Hence, he submitted that there is inconsistency in the case of the prosecution. Looking to the medical evidence and also the presence of eye-witnesses he submitted that now the investigation is completed and charge-sheet has been filed, by imposing reasonable conditions, petitioners may be admitted to bail.

Per contra, learned Government Pleader made the submission that there are number of eye-witnesses to the incident who have clearly stated in their statements that they have seen these two petitioners entering into the house of the deceased at about 5:30 p.m. holding the sticks in their hands. He also made the submission that statements goes to show that witnesses also entering into the house of the deceased wherein they have seen that accused have assaulted the deceased. The learned Government Pleader made the submission that there are eye-witnesses to the incident. So far as the medical opinion is concerned, learned Government Pleader made the submission that when the assault is made on the head with the stick there is a possibility of causing such injuries. Hence, he made the submission that the alleged offence under Section 302 of IPC and petitioners are not entitled to be granted with bail.

I have perused the grounds urged in the bail petition, FIR., complaint and also the other charge-sheet material produced by the learned counsel for the petitioners along with the petition. As per the case of the prosecution one Nabisab is the informant to the complainant on the basis of which complaint came to be lodged by the complainant. Looking to the statement of Nabisab and other eye-witnesses they goes to show that they have seen these two accused persons entering into the house and assaulted the deceased holding sticks in their hands and they have assaulted the deceased with sticks on the head and thereby causing bleeding injuries. 1 have also perused the post-mortem report. It is true as submitted by learned counsel for the petitioners that doctor mentioned in the post-mortem report that there are semi circular injury and the margin are clean cut, therefore, it is the main contention of the learned counsel for the petitioners herein that this medical opinion is no consistency with the case of the prosecution that the assault was made on the deceased by sticks. But when there are eye-witnesses to the incident consistently stated before the Investigating Officer in their statements that they have seen the petitioners who assaulted the deceased and thereby causing the injuries. Even if there is inconsistencies in the medical opinion, it is a matter for trial. Looking to the prosecution material prosecution has made out prima facie case as against the present petitioners that they have assaulted the deceased with stick and caused the said injury.

Under such circumstances and also considering the entire material placed on record, I am of the opinion that it is not a fit case to exercise discretion in favour of the accused-petitioners herein. Accordingly, the petition is hereby rejected.