Maletira M. Jeevan and Another vs State of Karnataka

H.S. Kempanna, J.—The petitioners, who are arrayed as A3 and A4 in Cr. No. 107/2013 on the file of the respondent/Police registered for the offences under Sections 302, 114 r/w 34, IPC, are before this Court praying for enlarging them on bail. The respondent/Police, on the complaint of one M.S. Kalaiah S/o late Somaiah, a resident of Kuklur village in Virajpet Taluk of Kodagu District, on 28.8.13 have registered the above; case against these two petitioners and five others and have taken up investigation. It is alleged among other things in the complaint, that on 28.8.13 at about 3.50 p.m. when the deceased Kalappa, the brother of the complainant, had gone to pick up the son of the complainant from Kodava Triveni School Samaja at Virajpet Taluk, these petitioners and other five accused came in a car to the said place having formed into an unlawful assembly armed with deadly weapons like choppers etc., and thereafter in furtherance of the common object of their unlawful assembly, they committed murder of the deceased by assaulting him with lethal weapons.

Learned counsel for the petitioners submits the petitioners have been falsely implicated in the case. In this connection, he submitted admittedly the complainant is not an eye-witness to the occurrence. The two eye-witnesses to the occurrence are one Kabbachira Mahesh and P.N. Lokesh. Their statements have came to be recorded on 2.9.13 nearly about five days after the occurrence. The statements of these two eye-witnesses also does not reveal the participation of these two petitioners/accused as the assailants of the deceased. He contends that in view of the name of the petitioners having not been found either in the FIR or in the statements of the eye-witnesses, which have been recorded after five days after the occurrence, as no recovery is also made at the instance of these petitioners so far as they are also not required for the purposes of investigation and further, as they are in custody since 1.9.2013, they be released on bail.

Per contra, learned HCGP vehemently opposed the application filed by the petitioners.

It is the case of the prosecution that these two petitioners along with five others on 28.8.13 at about 3.50 p.m. near Triveni School of Kodava Samaja at Virajpet Taluk in furtherance of the common object of their unlawful assembly had committed the murder of the deceased by assaulting him with lethal weapons. The prosecution, at this stage has relied upon the eye-witness on account of two witnesses namely Kabbachira Mahesh and P.N. Lokesh. The statements of these witnesses have been recorded by the police on 2.9.2013 nearly about five days after the occurrence. The said statements of the two witnesses also does not reveal the names of these two petitioners as assailants of the deceased. Further, they are no more required for the purpose of investigation. In these circumstances, I do not find any justification to decline the request of the petitioners for grant of bail. Accordingly, I proceed to pass the following:

i) The Petition is allowed;

ii) The petitioners are ordered to be released oil bail on each of them executing a personal bond in a sum of Rs. 30,000/- with one surety for the like sum to the satisfaction of the Committal Magistrate subject to the following conditions:--

iii) They shall not tamper with the prosecution witnesses;

iv) They shall make themselves available to the Investigating Agency as and when required for the purposes of investigation.

v) They shall attend the Court on all dates of hearing.