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Judgment
Rajesh Rai K, J
The petitioner/sole accused in Crime No.172/2023 dated 27.09.2023 registered by the Kollegala Rural Police Station for the offences punishable under Sections 307, 324 and 504 of IPC in FIR and subsequently for the offences punishable under Sections 302 and 504 of IPC in the charge sheet, is before this Court for grant of regular bail.
The facts that are apposite for consideration as borne out from the pleadings are as follows:
On 26.09.2023 at about 7:30 p.m., based on the information given by one Sri Basavanna i.e., C.W.3, the complainant namely Sri Anil Kumar S/o Kumar (deceased) rushed to the spot i.e., backside of the Silk Factory at Hosabeedhi, Kamagere Village, wherein the complainant found his father Kumar who was assaulted by the accused namely Nandan @ Nandan Kumar in a cement block. Thereafter, he shifted his injured father to the Holycross Hospital, Kamagere along with C.Ws.4 and 5 and thereafter, based on the advice of the Doctor at Holycross Hospital, Kamagere, injured was shifted to JSS Hospital, Mysuru, there he admitted as an inpatient on 27.09.2023. On 11.10.2023, he succumbed to the injuries. Initially, based on the complaint lodged by the complainant Sri Anil Kumar, the respondent-Police registered the case against the accused for the offences punishable under Sections 307, 324 and 504 of IPC on 27.09.2023 in Crime No.172/2023 and after the death of the deceased Kumar, the Investigation Officer made a request to the concerned Jurisdictional Magistrate to invoke Sections 302 and 504 of IPC and after due permission of the learned Magistrate, Sections 302 and 504 of IPC were invoked in the case. The accused was arrested on 12.10.2023, ever since then he is in custody. Presently, the respondent-Police completed the investigation and laid the charge sheet on 05.01.2024, before the Jurisdictional Magistrate. Being aggrieved by the custodial detention, the petitioner approached the Court of Additional District and Session Judge, Chamarajanagara (Sitting at Kollegala) in Crl.Misc.No.5006/2024. However, the learned Sessions Judge dismissed the bail application filed by the petitioner vide order dated 27.01.2024. Aggrieved by the same, the petitioner is before this Court for grant of regular bail.
Heard the learned counsel Sri Pratheep K.C for Sri Sharath J.M for petitioner and learned HCGP Sri M.R.Patil for respondent-State.
The primary contention of the learned counsel for the petitioner that, initially the FIR came to be registered on 27.09.2023 for the offences punishable under Sections 307, 324 and 504 of IPC and subsequently the injured died in the Hospital after lapse of 15 days i.e., on 11.10.2023. He would further contend that, though the prosecution relied the statement of one Sri Basavanna who cited as C.W.3 in the charge sheet alleging that, he is the eyewitness to the incident, but on perusal of his statement recorded before the learned Magistrate under Section 164 of Cr.P.C, the same depicts that he is not an eyewitness to the incident and he went to the alleged spot after the commission of the incident. Further according to him accused himself informed about the incident to him. Moreover, though the prosecution relied the statement of C.Ws.4 and 5 that they are the eyewitnesses to the incident, on perusal of their statement they also clearly stated that they came to know about the incident through C.W.3-Basavanna. As such, according to the learned counsel, there are no eyewitnesses to the alleged incident. Alternatively, he has also contend that even if the entire incident is taken into to consideration on the face of the materials available on record, it clearly depicts that the incident caused in a spur of moment without any such intention or motive on the part of the petitioner to do away the life of the deceased. Hence, the ingredients of Section 302 of IPC does not attract in this case against the petitioner. Accordingly, he prays to allow the bail petition.
Per contra, learned HCGP would contend that on perusal of the charge sheet materials, the petitioner being the sole accused committed the incident on 26.09.2023 and after 15 days the deceased died due to the assault made by the petitioner on his head. Further, C.Ws.3, 4 and 5 are the eyewitnesses to the incident, they categorically stated in their statement that they were witnessed the incident. In such circumstances, the petitioner is not entitle for grant of regular bail. Accordingly, he prays to dismiss the bail petition.
Having heard the learned counsel for the petitioner so also learned HCGP and having given my anxious consideration on the records made available before me including the impugned order passed by the learned Sessions Judge, it could be seen from the records that the prosecution mainly relied the statement of alleged eyewitness i.e., C.W.3 one Sri Basavanna recorded on 28.09.2023. Wherein, he has stated that he had witnessed the incident however on the next day i.e., on 29.09.2023 the respondent-Police recorded his statement before the learned Magistrate under Section 164 of Cr.P.C. On careful perusal of the said statement recorded on 29.09.2023 the same clearly depicts that he is not the eyewitness to the incident and after the incident the accused himself stated him that he caused the injury to the deceased. Nevertheless, C.Ws.4 and 5 though cited as an eyewitnesses to the incident in the charge sheet by the respondent-Police on careful perusal of their statement they categorically stated that both of them have came to know about the incident through C.W.3-Sri Basavanna. As such, they have to be treated as a hearsay witnesses to the incident. Even otherwise, as rightly contended by the learned counsel for the petitioner, the entire incident said to have been committed in a spur of moment for the reason that the deceased had an illicit affair with the mother of the accused and on the fateful day while the accused entered the house, he found the deceased backside of the house and apart from that the deceased abused the accused in a filthy language by mentioning the character of his mother. Enraged by the same, the accused assaulted the deceased by a cement block which is lying on the said spot. Hence, there is considerable force in the submission made by the learned counsel for the petitioner that the prima facie the offence punishable under Section 302 of IPC may not attract in this case. However, without expressing any opinion on the merits of the case, I proceed to pass the following order.
ORDER
The petition is allowed. The petitioner is directed to be enlarged on bail in Crime No.172/2023 of Kollegala Rural Police Station registered for the offences punishable under Sections 504 and 302 of IPC, subject to the following conditions:
Petitioner shall execute personal bond for a sum of Rs.1,00,000/- (one lakh) with two sureties for the likesum, to the satisfaction of the jurisdictional Court;
The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;
The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;
The petitioner shall not involve in similar offences in future;
The petitioner shall not leave the jurisdiction of the Trial Court without permission of the Said Court until the case registered against him is disposed off.