Dilip @ Dilipkumar vs State Of Karnataka & Others

H.P. Sandesh, J

Heard the learned counsel appearing for the appellant and the learned HCGP appearing for the respondent/State.

The factual matrix case of the prosecution is that on 12.11.2023 at about 4.30 p.m., when the complainant along with the deceased Surya and his friends went to A Dark Family Restaurant situated near Rameshwara village gate for photo-shoot, the appellant herein/petitioner along with other accused persons came inside the said restaurant at lawn and they asked Surya to click the photo from his camera. Accordingly he has taken the photo and accused person asked Surya to forward the said photo to his mobile. When the said Surya expressed his inability to forward the photos from the camera to the mobile, the appellant snatched the camera from the victim and hence, scuffle was taken place between them. The victim Surya belongs to the downtrodden caste hence, offence under Section 3(2)(v) of SC/ST (POA) Act is invoked. When the appellant herein inflicted the injury with the knife to the victim, he succumbed to the injuries, thus invoked Section 302 of IPC. The police investigated the matter and filed the charge sheet.

The counsel for the appellant would vehemently contend that the incident was taken place at the spur of the moment and there is no motive or intention to commit the murder. The counsel submits that the act of the appellant will not attract Section 302 of IPC and at the most, it attracts Section 304, Part-II of IPC. The counsel also submits that post mortem report is not complete since histopathology report is awaited. Hence, prayed to enlarge the appellant on bail.

Per contra, the learned HCGP appearing for the State would vehemently contend that CW1 to CW5 are the eye-witnesses to the incident and knife was seized at the instance of this appellant and this appellant only inflicted injury hence, there is a specific overt act allegation against him. Hence, there is no ground to enlarge the appellant on bail.

Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that when the camera was snatched by this appellant, a scuffle was taken place between the victim and this appellant along with other accused persons. Having perused the material, it discloses specific overt act allegation against this appellant that he inflicted injury with the knife and PM report is also very clear that the said injury is caused to the heart, as a result, he lost his life. The prosecution also mainly relies upon the evidence of CW1 to CW5 who are the eye-witnesses to the alleged incident. When such material is available on record and also recovery is made at the instance of this appellant and when there is a direct evidence against the appellant, the question of exercising discretion in favour of this appellant does not arise. The very contention of the counsel for the appellant that the act of the appellant will not attract Section 302 of IPC and at the most it attracts Section 304 Part-II, cannot be decided at this juncture, since the matter requires trial. The contention of the counsel for the appellant that the appellant was not having intention to commit murder also cannot be accepted at this juncture, since the said issue also requires trial. Hence, the appellant is not entitled for the bail.

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

ORDER

The criminal appeal is rejected.