B.G. Chethan & Others vs State Of Karnataka

K. Natarajan, J

This petition is filed by the petitioners-accused Nos.1 and 2 under Section 439 of Cr.P.C., for granting regular bail in Crime No.260/2020 registered by the Kudur Police Station for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short 'IPC').

Heard the arguments of learned counsel for the petitioners and learned High Court Government Pleader for the respondent-State.

The case of the prosecution is that petitioner- accused No.2 has filed a missing complaint to the Police on 09.10.2020 stating that his daughter Hemalatha was missing. Pursuant to the complaint, the case in Crime No.259/2020 was registered suspecting CW.1-Puneeth. After lodging of the missing complaint, accused No.2 again went to the Police Station and stated that he suspects that the dead body buried near the agricultural land of Ningamma might be of his daughter. Immediately, the Police visited the spot, exhumed the dead body and registered a case for the offences punishable under Sections 302 and 201 of IPC against unknown persons. During the investigation, the Police arrested the accused persons on 16.10.2020. The accused persons in their voluntary statement have confessed that they have committed the murder. The Police arrested the accused persons and remanded them to the judicial custody. Accused No.2 has earlier approached this Court for grant of bail which came to be rejected twice once at crime stage and the other after filing of the charge-sheet. Now, the petitioners are before this Court on fresh grounds.

Learned counsel for the petitioners has contended that the case is based on the circumstantial evidence, only on the last seen theory of the deceased with the company of accused Nos.1 and 2. Only CW.1- Puneeth has given statement to the Police but on the first day, he has not intimated the same to Divya-CW.5, friend of the deceased who informed him at 4.45 p.m., regarding missing of her friend Hemalatha. Even CW.1 has not intimated to Nagaraj-CW.9 who is the brother of Hemalatha about the last seen theory and all of a sudden, the Police have created a story that the deceased was seen with the company of the accused which is not believable.

Learned counsel further submits that even during the inquest proceedings, the underwear of the deceased was found on the body. But the Police story says that the underwear was removed by the accused and thrown on the road. But that underwear does not belong to the deceased. Learned counsel further contended that through out the inquest proceedings, CW.1 has not at all revealed anything to the Police even though he is said to be searched the deceased at Shivagange, Tumkur, Kudur and other places. This fact was not brought to the notice of this Court while rejecting the earlier bail petition.

Learned counsel also contended that as per the confession statement, the accused said to have caused injury to the private part of the deceased with the wooden stick. But the post mortem report does not reveal any injury in the private part of the deceased. That apart, learned counsel also contended that the death was due to smothering, but the case is not of smothering. The accused assaulted with stone and caused injury. Therefore, the learned counsel has contended that the petitioner has made out an additional ground for granting bail. Hence, prayed for allowing the petition.

Per contra, learned High Court Government Pleader objected the same and contended that the material placed on record shows that the accused persons have committed murder of the deceased and this Court has already rejected the bail petition of accused No.2. Hence, prayed for rejecting the bail petition.

Upon hearing the arguments and on perusal of the record, of course this Court has rejected the bail petition of accused No.2 twice, once at crime stage and the other after filing of the charge-sheet on the ground that the accused after assaulting the deceased, they have inserted the wooden stick in her private part, hence, this Court has rejected the bail petition stating that the accused being the father and brother of the deceased have inserted the wooden stick in the private part. But the post mortem report reveals that there is no injury in the private part of the deceased. That apart, CW.1 is said to have given statement to the Police that he has seen the deceased with the company of these accused. Though he is said to be last seen theory witness, but he has not intimated to Divya-CW.5 as well as to the brother of the deceased one Nagaraj-CW.9 about this fact. But the brother of the deceased along with the accused went on tracing for the deceased as she was missing. Looking to the entire material on record, except the voluntary statement, there is no other material at this stage to show that there is a prima facie material placed for rejecting the bail petition.

Looking to the facts and circumstances of the case, without expressing any opinion regarding the merits of the case and the petitioners are in custody for more than ten months, I am of the view that the petitioners have made out ground to allow the bail petition. Hence, I pass the following ORDER Accordingly, criminal petition is allowed. The trial Court is directed to release the petitioners-accused Nos.1 and 2 on bail in Crime No.260/2020 registered by Kudur Police Station for the offences punishable under Sections 302 and 201 of IPC, subject to the following conditions:

(i) Petitioners-accused Nos.1 and 2 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakh only) each with two sureties for the likesum to the satisfaction of the trial Court;

(ii) Petitioners shall not indulge in similar offences strictly;

(iii) Petitioners shall not tamper with the prosecution witnesses directly/ indirectly;

(iv) Petitioners shall not leave the jurisdiction of the Court without prior permission of the Trial Court;

(v) Petitioners shall not leave the jurisdiction of the Court without prior permission of the Trial Court.