Deekaiah Nalke vs State Of Karnataka, By Belthangady Police Station, Rep. By State Public Prosecutor, High Court Building, Bengaluru

H.P. Sandesh, J

Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

The factual matrix of the case of the prosecution before the Trial Court is that this accused along with other accused both were having ill-will against the victim and called him over phone to come to Kotikatte of Munduru Village. When the deceased came in his car, both accused Nos.1 and 2 had come in their motor cycle and made the deceased to get down from the car and both of them being armed with deadly weapons, like talwar and knife, assaulted the deceased all over his body and caused severe bleeding injuries, which resulted in his death. Immediately both accused Nos.1 and 2 have left the weapon at the spot, burnt their blood stained cloths and washed the blood stains from motor cycle. The accused No.3 had given shelter to accused Nos.1 and 2 and helped both of them in absconding. The police have registered the case and investigated the matter and filed the charge-sheet against this petitioner and other accused persons invoking the offences punishable under Sections 302, 201, 212 read with 34 of IPC. The prosecution in order to prove their case, examined P.W.1 to P.W.11 and yet to complete their evidence. At this juncture, the petitioner, who is arraigned as accused No.1 has approached this Court by filing the petition contending that from last four years eight months, he is in custody i.e., from 29.05.2019. It is also contended that he has not committed any offence and also he is not involved in any such crime and he is aged about 42 years and when there is no material evidence against the petitioner by examining P.W.1 to P.W.11, he is ready to furnish surety and he is going to obey the conditions that may be imposed by this Court. The learned counsel relied upon the deposition of P.W.1 to P.W.11.

Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that both of them have committed the murder with deadly weapons and only P.W.1 to P.W.11 are examined. P.W.2 turned hostile and his evidence was recorded before the learned Magistrate and in the cross-examination when P.W.2 was treated as hostile, categorically admitted the statement recorded before the learned Magistrate and he gave the statement what he had witnessed and also categorically deposed with regard to earlier ill-will between the deceased and also accused persons and so also the affair with P.W.3. The learned counsel submits that P.W.3 who is the relative of accused No.2 and accused No.1 who is also native of P.W.3, have completely supported the case of the prosecution. When there are material against the petitioner and other witnesses yet to be examined, this Court cannot usurp the jurisdiction of the Trial Court in appreciating the evidence sitting under Section 439 of Cr.P.C. When there are sufficient material against the petitioner, only on the ground that he is in custody from four years cannot be a ground to enlarge him on bail.

Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and also considering the material on record, it was a barbaric act in commission of the alleged offence. P.W.2 though turned hostile, certain relevant answers are elicited from the mouth of P.W.2 with regard to his statement was recorded before the learned Magistrate treating him as hostile. It is also the case of the prosecution that accused Nos.1 and 2 were having ill-will against the victim, since he was having affair with P.W.3. Apart from that, P.W.3 also spoken about earlier ill-will with accused Nos.1 and 2 with the deceased. P.W.3 also supported the case of the prosecution. Having considered the material on record, when the witnesses were examined i.e., P.W.1 to P.W.11, some of them have supported the case of the prosecution. When such being the case, the witnesses spoken about the ill-will and motive with regard to committing of murder and also the very case of the prosecution that accused No.2 was having grudge against the victim, since the victim was having affair with P.W.3 and P.W.3 also spoken about the same and though P.W.2 turned hostile, in the cross-examination, the learned public prosecutor elicited the answers with regard to making the statement before the learned Magistrate under Section 164 of Cr.P.C. When such materials are available on record, there is a force in the contention of the learned High Court Government Pleader that this Court cannot usurp the jurisdiction of the Trial Court for appreciation of evidence available record when the Court is sitting and exercising the power under Section 439 of Cr.P.C. Hence, I do not find any ground to enlarge the petitioner on bail when a heinous offence of committing the murder is alleged against the petitioner.

In view of the discussions made above, I pass the following:

ORDER

The petition is rejected.