Naganagouda and Others vs The State of Karnataka

Budihal R.B., J.—This is a petition filed by the petitioners/accused Nos. 1 and 2 under Section 439 of the Code of Criminal Procedure seeking their release on bail of the alleged offences punishable under Sections 120B, 201, 302, 506 read with Section 34 of the Indian Penal Code, 1860.

The brief facts of the prosecution''s case, as per the averments in the complaint, are that on 10.04.2010 one Ratna Fakirgouda Patil, the wife of the deceased filed a complaint alleging that on 05.10.2015 she had gone to Kittur Police Station to lodge a missing complaint alleging that on 02.04.2015 the petitioners/accused Nos. 1 and 2 came and took her husband Fakirgouda Chanagouda Patil on the pretext of some work and thereafter the deceased has gone somewhere and had not returned and the case was registered in Kitur P.S. Crime No. 53/2015. It is further alleged that thereafter the complainant searched for the deceased in all the surrounding places and when she enquired a person by name Santosh whose mobile shop the deceased used to visit frequently, said Santosh alleged to have told her that on 02.04.2015 at 4.00 p.m. the deceased had come to his mobile shop on his motor-cycle and thereafter having parked his motor-cycle in front of his mobile shop gave its key to the said Santosh and told that he is going to Sirsi along with the petitioners and in the meantime the petitioner No. 1 arrived there in his car and the deceased boarded the said car and in the said car even petitioner No. 1 and one lady were present and thereafter the deceased asked the said Santosh that in case if it gets late he should take the bike to his house and that the deceased would take back his bike the next morning. Subsequently, when the complainant and others met the petitioners and enquired them about the deceased, the petitioners alleged to have told them that they do not know and instead asked the complainant to search the deceased herself. Further, it is alleged that on 10.04.2015 one Basayya Kalmath came to the house of the complainant and told her that he was having food at Gajraj Hotel, at that time. the petitioners too were having food at the next table and were talking about the deceased abusing him in vulgar language and that they have finished the deceased and were also saying now nobody will dare to ask them money. So, on the basis of the said complaint, the case was registered against the present petitioners.

Heard the arguments of the learned senior counsel appearing for the petitioners/accused Nos. 1 and 2 and also the learned High Court Government pleader for the respondent-State.

Learned senior counsel made the submission that firstly, on 05.04.2015, the complainant filed a missing complaint of her husband stating that on 02.04.2015, the petitioners came to her house and asked the deceased to accompany them as they were having some work and accordingly, deceased left the house stating that he will go and will come on the next day morning in spite of that when he did not come, the complainant made enquiry in the surrounding places and she filed the complaint on 05.04.2015 about the missing of her husband. Learned senior counsel made the submission that there are no eye witnesses to the incident and the case of the prosecution rests on the circumstantial evidence. It is also his submission that the prosecution relied upon the voluntary statements said to have been given by petitioner Nos. 1 and 2 and only on the basis of the voluntary statements, the prosecution claims that it is the petitioners/accused Nos. 1 and 2 who have committed the murder of the deceased Fakirgouda Chanagouda Patil. Learned senior counsel also submitted that though it is the case of the prosecution that one Gowramma is said to be eye witness and her statement under Section 164 of Cr.P.C. is recorded before the Magistrate Court, it was after a lapse of two months. The incident is alleged to have taken place in the month of April and her statement under Section 164 was recorded in the month of June. Hence, he made the submission that no importance can be attached to the said statement of Gowramma. The counsel submitted that perusing the entire charge-sheet material, no prima facie case has been made out as against the petitioners by the prosecution and hence by imposing reasonable conditions, petitioners may be enlarged on bail.

Per contra, the learned High Court Government Pleader made the submission that Gowramma is the eye witness in this case. The dead body was traced on the voluntary statements said to have been recorded by the investigating officer on 11.04.2015 and on the very next day, the statement of the said Gowramma was recorded by the investigating officer. She also made the submission that apart from her statement under Section 161 given before the Investigating Officer, her statement is recorded by the JMFC, may be after the lapse of two months. She further made the submission that the voluntary statements of the petitioners were recorded by the Investigating Officer and as per the voluntary statements the dead body was traced. She also submitted that there is also statement of one Santosh, who also stated before the Investigating Officer that the deceased came on his two-wheeler vehicle, parked the vehicle in front of his mobile shop and he told that he will go along with the present petitioners. Hence, she made the submission that the deceased went along with the petitioners. Hence she submitted that considering all the materials placed on record by the prosecution, they prima facie go to show the involvement of the petitioners in the alleged offences. Hence, she submitted that this is not a fit case to release the petitioners on bail.

I have perused the averments made in the bail petition, the grounds urged therein and the order passed by the learned Sessions Judge, Belagavi on the bail application rejecting the bail petition. So also, I have perused the complaint, FIR and the charge-sheet produced by the learned senior counsel appearing for the petitioners herein.

Perusing the materials placed on record, the charge sheet material goes to show that the deceased left the house informing his wife that he will go along with the petitioners and will come on the next day morning. Material produced also go to show that the petitioners had come to the house of the complainant on 02.04.2015 and they asked the deceased to accompany them as they were having some work. About this, the complaint averments prima facie and so also the statement of Santosh go to show that deceased went along with these two petitioners. The statement of Gowramma who claims to be the eye witnesses to the incident in this case clearly stated in her statement that after taking this deceased in the car, on the way the car was stopped and both the petitioners alighted from the car, they took the deceased and started to assault him and she has seen this assault made by the petitioners with the iron rod that they had from the ''dikki'' of the car and she witnessed the same in the moonlight. The statement of Gowramma is also recorded before the JMFC Court. But the learned senior counsel for the petitioners submitted that there is delay of two months in recording the statement before the JMFC Court. However, when the dead body was traced, on the very next day itself the statement of Gowramma was recorded by the Investigating Officer. Therefore, the contentions of the learned senior counsel that there is no material prima facie to show that it is the present petitioners who assaulted the deceased and committed his murder cannot be accepted at all. At this stage, the Court has to see the materials collected during the investigation and statement of witnesses and the Court is not supposed to conduct a mini trial to ascertain whether the statement of witness is true or false; it is only during the course of trial and after recording the evidence the trial Court has to go into falsity or otherwise of the statement of the witnesses recorded during investigation. What is required to be seen is whether on the basis of the material collected by the Investigating Officer it makes out a prima facie case about the involvement of the accused in committing the alleged offences. Looking to the materials placed on record. So also the order passed by the learned Sessions Judge, I am of the opinion that the prosecution case prima facie goes to show the involvement of the petitioners/accused Nos. 1 and 2 in committing the alleged offences. The offence alleged is under Section 302 of IPC which is a serious offence punishable with death or life imprisonment. Hence in view of this material, I am of the opinion that this is not a fit case to exercise discretion in favour of the petitioners and to release them on bail.

Accordingly, petition is rejected.