Madesha @ Loose Madha vs State of Karnataka

K.N. Keshavanarayana

The petitioner herein has been arraigned as accused No. 5 in S.C. No. 181/11 on the file of Fast Track Court-XVII, Bangalore City. He along with other accused persons is charge sheeted for the offence punishable u/s 302 r/w 34 IPC. According to the case of the prosecution, during the night of 26.9.2010 in an Orchestra held in Balaji Lay Out, there was a quarrel between accused No. 1 and others; deceased Dinesh, elder brother of CW.I-Shravan Kumar, intervened in the said quarrel, pacified all of them and by slapping accused No. 1 sent him away from the place; in this background, at about 7.45 p.m. on 27.9.2010, when CW.1. deceased along with CWS.6, 7 and 8 were removing the shed errected in front of house of CW.4 for installing Ganesha idol, accused No. 1 along with his associates numbering about 7 to 8 came there armed with weapons and by picking up quarrel with deceased, stabbed him with knives on the chest and other parts of the body causing him severe injuries to which he succumbed.

In respect of this incident, CW.1 lodged a report at about 10.15 p.m. on 27.9.2010 based on which case in Crime No. 1118/10 came to be registered and investigation was taken up. The case was initially registered against accused No. 1 - Satish Babu @ Aiyyappa, accused No 2 Vasu @ Ole Vasu and 7 to 8 others. During investigation, the complicity of this petitioner was reported to have been revealed. Therefore, he was arraigned as accused No. 5. Thereafter, he was apprehended and subjected to judicial custody. As his prayer for bail came to be rejected, both by the learned Magistrate and the learned Sessions Judge, the petitioner is before this court seeking the relief of bail. In the meanwhile, Investigating Officer after completing the investigation laid the charge sheet for the aforesaid offence and the matter has already been committed to the Court of Sessions. The petitioner along with others has been facing the charge for the aforesaid offences.

I have heard the learned counsel appearing on both sides. Perused the records made available.

It is the submission of the learned counsel for the petitioner that, in the First Information Report lodged at the earliest point of time by the younger brother of the deceased who also claims to be an eyewitness, the name of this petitioner did not find a place nor it was staled in the said report that any of the assailants kicked the deceased with their legs, however, subsequently, the name of the petitioner has been falsely implicated in the case as such there are no reasonable grounds to believe that the petitioner is guilty of the aforesaid offence. It is also his submission that even according to the statements of CWs.6 to 8 who claimed to be eye-witnesses, the overt act attributed against this petitioner is that he and other accused persons kicked the deceased with their legs and according to the Doctor who conducted the post mortem examination, the death of the deceased was due to the stab injuries sustained on the left side of the chest as such the acts said to have been committed by the petitioner herein was not in any way responsible for the death of the deceased. It is also the submission that this Court has already granted bail to accused Nos. 4 and 7 whose names finds place in the FIR and who said to have held the deceased thereby facilitated the other assailants to inflict fatal blows, therefore, the petitioner stands oh a better footing than those two accused who have been enlarged on bail as such the petitioner is entitled to be enlarged on bail.

The petition is opposed by the learned Government Advocate representing the respondent -State on the ground that the materials on record prima facie indicates that this petitioner along with other accused persons came there in a group sharing common intention and in furtherance of the said common intention they have committed murder of the deceased, therefore there are reasonable grounds to believe that the petitioner is guilty of the offence punishable u/s 302 IPC and regard being had to the nature as well as gravity, of the offence and the punishment prescribed for the same, the petitioner is not entitled to be enlarged on bail.

I have bestowed my serious considerations to the submission made on both sides. As rightly contended by the learned counsel for the petitioner in the First Information Report lodged at the earliest point of time by the younger brother of the deceased who claims to be an eye-witness, the name of this petitioner 1 does not figure. In the said report, there is also no allegation of any of the assailants kicking the deceased with their legs. As per the statements of CWs.6 to 8, who claims to be the other eye-witnesses, even after the deceased fell down some of the assailants kicked him and ran away from the place. According to these eyewitnesses they were called to the Police Station for identifying those assailants who kicked the deceased, and in the Police Station they identified this petitioner as one of the assailants who kicked the deceased. Therefore, even according to CWs.6 to 8 the overt act attributed to this petitioner is that he kicked the deceased with his legs. As could be seen from the post mortem report, the deceased had sustained 3 stab injuries and one incised wound. There is no indication of any other external injuries on any other parts of the body. According to the Doctor who conducted post mortem, the death of the deceased was due to shock and hemorrhage as a result of stab injuries sustained to the left side of the chest. Thus even if the statement of CWs.6 to 8 that the petitioner kicked the deceased with legs is accepted the acts attributable to this petitioner was not responsible for the death of the deceased. of course the death of the deceased was homicidal. Having regard to the facts and circumstances of the case and the materials available on record, at this stage, there are no reasonable grounds to believe that the petitioner is responsible for the homicidal death of the deceased. of course, as contended by the learned Government Advocate it is the specific ease of the prosecution that all the accused persons by sharing common intention came near the scene of occurrence and in furtherance of the common intention committed the act of assault on the deceased. The question as to whether the accused persons shared a common intention or not will have to be adjudicated upon by the trial Court after a full dressed trial. Therefore, at this stage, I find no reasonable grounds to believe that this petitioner is guilty of the offence punishable with death or life imprisonment. It is also noticed that in Crl. P. Nos. 401/11 and 307/11 this court has granted bail to accused Nos. 4 and 7 whose name finds place in the FIR. According to the allegations made in the FIR accused Nos. 4 and 7 held the deceased and thereby facilitated the other assailants to inflict fatal blow. When such accused persons have already been granted bail by this court, I find no good ground to deny the relief of bail to this petitioner- whose name does not find place in the FIR and no overt act was attributed against him in the First Information Report. The apprehension of the prosecution could be allayed by imposing conditions.

In the result, the petition is allowed. The petitioner is ordered to be released on bail in S.C. No. 181/11 of Fast Track Court-XVII. Bangalore City, subject to the following conditions:

(i) The petitioner shall execute personal bond for a sum of Rs. 50,000/- with two sureties for the like sum to the satisfaction of the learned Sessions Judge;

(ii) He shall not intimidate or tamper with the prosecution witnesses in any manner;

(iii) He shall appear on all hearing dates before the court without fail;

(iv) He shall not indulge in any acts similar to the one alleged in the case and

(v) He shall mark his attendance with the jurisdictional police on every 10th and 25th of each calendar month, between 10.00 a.m. and 5.00 p.m. till disposal of the case.