Sri Basavanaiah vs State of Karnataka

Jawad Rahim, J.—The petitioner is the 5th accused in Cr. No. 30/2009 facing charge for the offence punishable u/s 302 read with Section 341 IPC. which after investigation is converted to C.C. No. 260/2009 on the file of learned C.J.M., K.R. Pet, Mandya, now in Sessions Case.

The prosecution case is based on the report of one Thimmegowda alleging that his son Dhananjaya and he were taken into custody on 24-02-2009 at 11-00 AM on the pretext of conducting enquiry relating to whereabouts of one Bhaskara. After taking them into custody the Police Officers i.e., Nagesh. Police Sub-Inspector - accused No. 1, Kumar, Police Constable - accused No. 2 and Basavannaiah, Head Constable - accused No. 5 (petitioner herein) brutally assaulted them. Consequently, Thimmegowda and Dhananjaya suffered severe injuries.

Again on the following day Nagesh - accused No. 1 directed his subordinate officials to take Thimmegowda and Dhananjaya in a jeep to other places compel them to admit that they were responsible for disappearance of Bhaskara. As Dhananjaya was not physically fit due to suffering of severe injuries, he was carried into police jeep and taken near river. At that spot Nagesh directed other accused to bring out Dhananjaya, out he was unable to even move. Nagesh then directed the petitioner and others to deal with him severely so that he would accept the guilt. Accordingly, Dhananjaya was taken out from the jeep, but he fell on the ground. Thereafter he was beaten again with lathi causing further injuries, due to which he succumbed. This is in short the case of the prosecution.

The learned Counsel for petitioner would submit that the petitioner has not played any role and he had no intention to cause injuries or death of the victim. He was part of the team investigating the case and therefore, he would be liable for offence punishable u/s 302 IPC. He would submit that similarly placed accused Govindaiah has been granted bail by this Court and also relied on the decision of the Apex Court in the case of Laxman Mahadeo Sariputra v. State of Maharashtra reported in 2001(3) Crimes 183 (SC) to show that in similar circumstances the Apex Court took a view that such acts do not come under 302 IPC. but fall u/s 304 IPC.

Keeping in mind what is urged I have examined the case projected by the State. There is no dispute that on 24-02-2009 at 11-30 AM the officials of K.R. Pet Rural Police Station took Dhananjaya and his father Thimmegowda into custody. Thereafter no case was registered, but they were questioned in Cr. No. 25/2009 regarding missing of one Mooga @ Bhaskara. It is during such interrogation Dhananjaya has been brutally dealt with. The fact that he suffered multiple injuries is spoken to by the witnesses themselves who were in custody and it is also noticed that Nagesh, Police Sub-Inspector, petitioner - Head Constable and two Police Constables were incharge of the custody of the victim, who died.

Undoubtedly, when the victim was in their custody they are responsible for his safe custody. They have dealt him with such brutality, he was not able to speak and he was unconscious when he was taken in the jeep. After dragging out of jeep he was again assault and reference is made to the petitioner as one who had taken the victim in jeep along with driver Ramesh. No doubt, physical assault is attributed to the driver Ramesh and Govindaiah and but we have to keep in mind the person incharge of the custody. Petitioner being the Head Constable was incharge of custody of two persons, whom they apprehend in Cr. No. 25/2009. Therefore, he cannot accept the plea that the death of Dhananjaya is not due to consequence of his act. Thimmegowda, who was also in custody along with the deceased has vividly described what transpired. It reveals horrifying facts relating to how suspect has been dealt with.

The mandate of the Apex Court as to how the person in custody has be dealt with by the Officer incharge. and the procedure to be followed has been totally-flouted and Dhananjaya has been brutally assaulted resulting in his death. ''

The learned Counsel relies on the order passed by this Court in Crl. P. No. 4651/2009 and in Crl. P. No. 6070/2009 dated 22-01-2010 in favour of accused No. 4 -Ravi.

I hove examined the order granting bail in favour of accused No. 4 - Ravi. It is only on the basis that he was a driver of the jeep and as nothing was stated by the Complainant against him and no overt act was attributed to him, he has been admitted to bail. Therefore, grant of bail to Ravi in no way could be used as parity to grant bail to the petitioner.

As regards Govindaiah is concerned the reason for grant of bail could be noticed in Para-7 of the order dated 22-02-2009. In para-7 this Court has taken note of the fact that Govindaiah is alleged to have compelled the deceased Dhananjaya and Thimmegowda to remove their clothes. This court accepted Govindaiah''s contention that clothes were removed from the person of Dhananjaya and Thimmegowda to prevent them from committing suicide, and there was no nexus between their acts and injuries suffered by the deceased.

The second aspect taken notice is that when Dhananjaya was taken in a jeep and he was removed from the jeep. Govindaiah directed the other accused to assault him. He did not assault him. On that ground Govindaiah was granted bail. But, so far as petitioner is concerned, it is noticed that Thimmegowda has directly alleged that he assaulted deceased in the Police Station and it is he who had accompanied Thimmegowda and Dhananjaya in jeep to the place where ultimately Dhananjaya was dealt with blows to which he succumbed.

Therefore, do not find any ground to grant bail to the petitioner herein. Even otherwise parity is to be used to avoid inconsistency in approach. When there is direct material indicating the applicant, and overt acts attributed him are of such serious gravity that nexus is established between his acts and ultimate death of the victim. Hence, merely because co-accused have been granted bail does not justify grant of bail to him.

Incidentally, it is noticed that petitioner had applied to this Court not long ago, but just a month ago for bail and after arguing for some time petition was withdrawn as seen from the order dated 16-02-2010 in Cr. No. 366/2002.

Therefore, no case is made out to grant the relief as sought for by the petitioner. Accordingly, it is dismissed.