Shiva vs The State of Karnataka

This petition is filed by the petitioner/accused No.3 under Section 439 of Cr.P.C. seeking his release on bail for the alleged offences punishable

under Sections 109, 143, 144, 147, 148, 341, 326, 307, 302, 114 read with 149 of IPC registered in respondent-police station Crime No.

211/2016.

Heard the arguments of the learned counsel appearing for the petitioner/accused No.3, so also learned High Court Government Pleader

appearing for the respondent - State.

The case of the prosecution as per the complaint averments, the grand father of the complainant had seven sons and two daughters and all of

them are married and residing separately and there was a property dispute with regard to right of way between accused No.1, Thammaiah, Shiva,

Kumara, Dyavappa and complaints were filed the matter was amicably settled in the police station. On 21.09.2016 at about 10 p.m., when the

complainant''s father by name Devarajappa was coming near Thammaiah''s house, Ramesh, Thammaiah, Dyavappa blocked the road and

assaulted his father and in that regard, complainant''s uncle Somashekar and his friend Sachin had come to Hassan from Bengaluru to see his father

and later came to their village. On 22.09.2016, when complainant, Somshekar, Sachin, Shivakumar, Ashok were going near Thammaiah''s house

at about 11.30 p.m., at that time, Ramesh @ Suresh, Thammaiah, Shiva, Kumara, Dyavappa, Manja, Rajappa and Ravi formed themselves into

an unlawful assembly holding deadly weapons and blocked them from ahead and Shiva assaulted on the complainant''s uncle with a chopper,

Ramesh assaulted with club on the legs of Somashekara and thereafter, Ramesh and Thammaiah assaulted with club on the head of Sachin, Shiva

assaulted with chopper on Ashok, Somshekar and Kumara assaulted with chopper on the head of Shiva Kumar, Dyvappa assaulted with stone

and thereafter, Manja and Rajappa threw the stone on Shiva Kumar and Sachin. Ravi kicked them with his legs. The further allegation is that when

the complainant screamed loudly, his aunt and others interfered and pacified the galata and all the accused threw the deadly weapons on the spot

and went away. Thereafter, all the injured were taken to Hospital but Shiva Kumar was declared dead and Sachin also died during the treatment.

On the basis of the said complaint, FIR came to be registered for the alleged offences.

Learned counsel for the petitioner submitted that as per the complaint averments, the allegation is against the present petitioner that he assaulted

the injured - Somshekar. He submitted that there is no allegation in the complaint that the present petitioner assaulted any of the deceased either

Shiva Kumar or Sachin. It is also his submission that even if the statement of CWs.8 and 9 is taken into consideration by this Court, though they

have stated that the petitioner was holding deadly weapon assaulted Shiva Kumar on the head portion but their statement came to be recorded

after a lapse of nearly two months. Hence, learned counsel submitted that there is no prima-facie material placed by the prosecution and by

imposing reasonable conditions, the petitioner can be admitted to regular bail.

Per contra, learned High Court Government Pleader referred the case file and submitted that CWs. 8 and 9 namely Somashekar and Ashoka,

who were also injured witnesses, made a clear statement before the police during investigation that they have seen the present petitioner assaulting

one of the deceased - Shiva Kumar with deadly weapon on the head portion and other parts of the body. He also submitted that the injuries were

sustained by Shiva Kumar and Sachin also. As mentioned by the Doctor in the Post Mortem report, cause of death is due to shock and

Haemorrhage as a result of multiple injuries and head injury sustained. Learned HCGP further submitted that voluntary statement of the present

petitioner has been recorded by the Investigating Officer during investigation and at his instance, the deadly weapon has been seized, in the

presence of panch witnesses. Hence, he submits that in view of these materials and as per the opinion of two eyewitnesses, there is a prima-facie

case against the present petitioner also. Therefore, he is not entitled to be granted a bail.

I have perused the grounds urged in the bail petition, FIR, complaint and other materials produced by the learned HCGP at the time of hearing

the petition.

It is true, as submitted by the learned counsel for the petitioner and looking to the complaint averments, the allegation against the petitioner is that

he assaulted the injured-Somshekar and there is no specific allegation in the compliant that he has assaulted either of the deceased either Shiva

Kumar or Sachin. CWs.8 and 9, in their statement have stated that Shiva/accused No.3 who was holding Machhu in his hand, assaulted on the

head of Shiva Kumar and thereafter Thammaiah/accused No.2 holding Ripies patty assaulted the Shiva Kumar. Therefore as per CW.8 -

Somashekar, there is an allegation against the petitioner/Shivu and CW.9 - Ashoka, another witness also similarly stated that Shivu/the petitioner

who was holding Machhu and assaulted Shiva kumar/deceased on his head portion and the other accused persons also assaulted the deceased.

Therefore, CWs. 8 and 9, both of them have consistently stated about the assault made by the petitioner on Shiva Kumar, one of the deceased in

this case. As submitted by the learned HCGP, the voluntary statement of the present petitioner has been recorded by the Investigating Officer

during investigation and at his instance, Machhu has been recovered during investigation in the presence of the panch witnesses under seizure

mahazar. The Post Mortem report submitted by the Doctor regarding the injuries and also the opinion regarding the cause of death is consistent

with the prosecution material but, so far as the learned counsel appearing for the petitioner regarding delay in recording the statement of these two

eyewitnesses is concerned, no doubt there is a delay but when all other materials point out against the petitioner and the statement of these two

witnesses who are injured witnesses, only on the ground of delay at this stage, their statement cannot be disbelieved, ignoring all other materials,

which are produced in support of the prosecution case.

In view of the above, more particularly, the statement of CWs. 8 and 9 and I am of the opinion that it is not a fit case to exercise discretion in

favour of the petitioner/accused No.3. Accordingly, petition is hereby rejected.