Nandeesha vs State of Karnataka

H.S. Kempanna, J.—The petitioner who is arrayed as accused in C.C. No. 103/2013 on the file of the Principal Civil Judge, (Senior Division) and JMFC, Pandavapum Mandya District, registered for the offences under Section- 376A and 302 of the Indian Penal Code is before this court praying for enlarging him on bail. It is the case of the prosecution that the present petitioner prior to the present occurrence which took place on the intervening night of 22/23.05.2013 had attempted to molest the deceased Pramila, by trespassing into her house and threatened her with dire consequence. In that connection, on the complaint filed by the deceased a case had been registered, investigation had been completed and charge-sheet had been submitted and the accused is facing trial in the said case.

It is further the case of prosecution CW-7 who is the husband of deceased suspecting the accused to be in illicit connection with his wife the deceased had requested the accused not to talk to his wife and in that connection the accused was nursing grudge against the deceased and CW-7. Such being the position, it is alleged that on 22.05.2013, when the deceased along with her son CW-2 had taken their cattle for grazing, the accused went to the said place and after sending CW-2, at about 4.00 p.m., took the deceased alongwith him to an undaunted place i.e., near Bogappa''s land situated in Anthanahalli Village, there he strangulated her due to which she became unconscious and thereafter the accused left the said place. Thereafter, the villagers finding her body on the morning of 23.05.2013, took her to K.R. Hospital, Mysore, where she expired on 05.06.2013 while undergoing treatment. Hence, the petitioner has committed the aforementioned offences.

Learned counsel for the petitioner contends that the case of the prosecution rests upon circumstantial evidence. The circumstances that are pressed into service are the statement of CW-2, the son of the deceased recorded on 04.06.2013 and on 18.06.2013. Nextly, the case that has been launched against the accused in respect of the deceased having been molested at his hands which is pending in the court. She submits insofar as the statement of CW-2, the son of the deceased, though the charge-sheet specifies that his statement has been recorded on 04.06.2013 no statement is placed on record. Insofar as the statement dated 18.06.2013 implicating the accused as a person who had taken the deceased on 22.05.2013 while they were grazing cattle, she submits having regard to the delay in recording the said statement and in view of the fact that the accused is facing trial in respect of the earlier incident, the same does not lend any credence to believe the same.

She further submits that so far as the earlier case is concerned, it is made as a tool to falsely implicate the accused in the present case. As there is no other material implicating the accused with the crime and as the petitioner is in custody from 23.05.2013 on which date he was taken to the custody from his house in the village and as the investigation is completed and charge-sheet is filed he be released on bail.

The application filed by the petitioner is opposed by the State.

The case of the prosecution as submitted by the counsel for the petitioner rests on circumstantial evidence. CW-2 is the sole witness in this case, whose statement reveals that the deceased was taken by the accused on 22.05.2013 when he along with his mother, the deceased, were grazing the cattle near the spot of occurrence. Though his statement has been recorded on 18.06.2013 in the facts and circumstances of the case, having regard to the background in which the occurrence has taken place, more particularly, taking into account that this petitioner had molested the deceased for which he is facing trial, in the facts and circumstances, in my view it is not a fit case to exercise the discretion vested in this Court under Section- 439 of Cr.P.C. in favour of the petitioner. Accordingly, I do not find any merit in the petition and it is dismissed.