SRI RAKESH H @ RAKI vs STATE

This petition is filed by the petitioner/accused No.1 under Section 439 of Cr.P.C., seeking his release on bail of the alleged offences punishable

under Section 302 r/w. section 34 of IPC, registered in respondent ? police station Crime No.102/2017.

Brief facts of the prosecution case are that the brother of the deceased is the complainant in this case. On 20.03.2017 at about 1.15 a.m. in the

morning, the complainant appeared before the respondent with a complaint alleging that his brother was a painter and he was married. That on

19.3.2017 at about 10.45 p.m., he was informed that his brother was lying with injuries near Sridhar Complex at Raghavendra Nagar. The

complainant went to the spot and found that his brother was dead. Therefore, he suspected a foul play by unknown persons who had enmity with

his brother. On the basis of the said complaint, case came to be registered for the alleged offences. F.I.R. was registered initially against unknown

persons, but during the course of investigation, the present petitioner has been arrayed as accused No.1.

Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and also the learned High Court Government Pleader

appearing for the respondent-State.

Learned counsel appearing for the petitioner made a submission that looking to the allegations made in the complaint it goes to show that there

was exchange of words between the deceased and accused persons. The deceased abused the petitioner and other accused persons in a vulgar

language. Not only that, when the deceased threw the television towards the petitioner, it was broken. The allegation is that, at that moment, the

petitioner took the broken glass piece and stabbed on the stomach portion of the deceased. In this connection, learned counsel made the

submission that the offence will not come under section 302 of Indian Penal Code, but at the most it may come under section 304 Part II of Indian

Penal Code which is not punishable with death or imprisonment for life. He also refers to the statement of two eye-witnesses CW.2 and CW.3 and

submits that the materials goes to show that it is the deceased who abused the petitioner and others and he is the main cause for the incident is

concerned. Learned counsel further submitted that the accused Nos.2 and 4 have already been granted bail by order of this court and has

produced copies of the bail orders. Hence, the learned counsel submitted that by imposing reasonable conditions, the petitioner/accused No.1 may

be admitted to regular bail.

Per contra, learned High Court Government Pleader made a submission that looking to the prosecution materials, they go to show that it is the

petitioner herein who took the broken glass piece and assaulted on the stomach portion of the deceased. As per the statement of eye-witnesses

CW.2 and 3, they have clearly mentioned in their statements that the petitioner assaulted the deceased with broken glass piece on the stomach

portion of the deceased. He also submitted that the medical evidence and the opinion of the Doctor regarding cause of death are also consistent

with the story of the prosecution. Hence he submitted that the petitioner is not entitled to be granted with bail.

I have perused the grounds urged in the bail petition, FIR, complaint and other materials produced in the case.

So also I have perused the order passed by this court dated 07.09.2017 in Criminal Petition No.6051/2017. It is in respect of accused No.4.

The observations made by this Court in para 4 of the said order reads as under:-

CW2 and CW3 are direct eye witnesses to the incident. They have categorically stated about the provocative language uttered by

the deceased, enraged by which the accused persons manhandled on him and also about the deceased targeting a T.V. at the

accused persons, which fell on the ground and the 1st accused has taken broken glass piece of the said T.V. and stabbed on the

stomach of the deceased.

After making the above observations, this Court granted bail to accused No.4.

Similarly, this Court granted bail to accused No.2 by order dated 21.09.2017 passed in Criminal Petition No.6963/2017.

Even in the bail orders passed by this Court, there is an observation regarding assault said to have been made by the present petitioner on the

stomach portion of the deceased with the broken glass piece of T.V. I have also perused the medical records. The Doctor who conducted the

autopsy over the dead body noticed four injuries on the body of the deceased. It reads as under:-

(1) Stab injury of size 3 x 0.5 cm., vertically placed at umbilicus, margins clean cut, red. Coils of small intestine protruded. Edges

erected. Stab penetrates peritoneum coils of intestine. Greater omentum and root of mesentery. Diffuse hemorrhage with clots about

1000 cc. present in cavity. Direction of injury is front to backwards at L4 vertebrae.

(2) Three small abrasions each measures 0.5 cms. x 1 cm. at outer aspect of right eye red.

(3) Abrasion 1 x 1 cm. at outer aspect of left eye.

(4) Abrasion 6 x 4 cm. in front of left ear over face red colour.

Therefore, even looking to the injury No.1, as mentioned by the Doctor, it is consistent with the allegation made in the complaint and

statements of the eye-witnesses that the present petitioner assaulted the deceased on the stomach portion. Other three injuries are said to be small

abrasions. Looking to the materials placed on record, the contention of the learned counsel for the petitioner herein that the offences would not fall

under section 302 of Indian Penal Code, at the most it would be section 304 Part II of Indian Penal Code cannot be accepted. Therefore, when

there is prima facie material as against the petitioner herein, he is not entitled to be granted with bail. Ground of parity is also not made applicable

to the present petitioner.

Accordingly, the petition is rejected.

At this stage, learned counsel for the petitioner - accused No.1 made a submission that from the date of arrest, he is in custody. Hence, the

concerned Sessions Court is directed to take up the matter on priority basis and dispose of the matter as early as possible.