Sri S.R. Abhishek vs State of Karnataka

H.S. Kempanna, J.—The petitioner, who is arrayed as accused No. 29 in CC NO. 1696/2012 on the file of the. JMFC, Nelamangala registered for the offences punishable under Sections 143, 147, 148, 120B, 341, 323, 324, 302, 307, 427, 506, 114 read with Section 149 of IPC and under Sections 25 and 27 of the Indian Arms Act, 1959 is before this Court praying for enlarging him on bail. It is the case of the prosecution, deceased B.M.L. Krishnappa was a member of the Zilla Panchayat, Bangalore Rural District, Bangalore. There were differences between him and A1 in connection with A1 having murdered one Basaiah in the year 2005, who was a follower of the present deceased B.M.L. Krishnappa. Further, in retaliation to the same, in the year 2009, one Devi-brother of A1 had been murdered by the followers of the present deceased B.M.L. Krishnappa. Apart from this, A1 and his followers had made an attempt on the life of the present deceased in the year 2009. On account of this, they were nursing grudge against each other. It is the case of the prosecution, the accused in the case, on account of the rivalry that existed between A1 and the deceased, hatched a conspiracy to finish off the deceased. Such conspiracy, according to the prosecution, had been hatched by the accused in the case since 10.07.2012. Such being the position, it is the case of the prosecution, on 25.7.2012, the deceased accompanied with C.Ws. 1, 2, 12 and 13 proceeded in a Innova Car driven by CW 3 towards his village Arashinakunte, coming within the jurisdiction of Nelamangala Police Station. He was followed by C.Ws. 4, 12 and 13 in another car. Apart from that, C.Ws. 5, 7, 8, 9 and 10 followed the deceased in Pajero car. When the deceased was about to take a deviation to proceed to his village Arashinakunte near the service road junction located at NH 4, the accused, who had formed themselves into an unlawful assembly, armed with deadly weapons and were waiting for the deceased at the said place sitting in their respective cars intercepted the car of the deceased at the said place. Thereafter, it is alleged the accused in pursuance of the conspiracy hatched and in pursuance of the common object of unlawful assembly, they hackled the deceased after dragging him out of the car. Further, when CW 1 intervened to rescue the deceased, he was also assaulted by the accused and attempted to commit his murder. Apart from this, the other witnesses, who were following the deceased, among whom CW 4-Gunman, who was in the second car along with C.Ws. 12 and 13, seeing the deceased being attacked and heckled by the accused, opened fire with the SBBL gun, which was provided to him, on the accused. The shot fired by him landed on A9, who died at the spot. Thereafter, it is the case of the prosecution, altercations took place between the two groups in which accused are alleged to have assaulted and caused injuries to CW 3-driver of the car. After committing the offence, according to the prosecution, the accused left the spot.

The present accused, who is accused No. 29, came to be arrested by the Police during the course of investigation on 30.7.2012 and since then he is in custody.

Learned counsel for the petitioner submits the overt act attributed to this accused is that he had caused damage to one of the cars by hitting with an iron rod as revealed from the statements of C.Ws. 6, 11 and 19. He further submits the other material placed on record is that this petitioner is identified as accused by CW 199, as being present at the time of occurrence. He further submits except this material as against this petitioner, there are no other circumstances pointing towards his guilt. The statements of C.Ws. 6, 11 and 19 have come to be recorded on 24.7.2012, 27.7.2012 and 28.7.2012 respectively. Apart from the same, further statements of C.Ws. 11 and 19 have been recorded on 30.7.2012 and 2.8.2012. Having regard to the delay, in these witnesses coming out with the version of participation of the present petitioner in the crime, it does not lend any credence to rely on the same. Insofar as CW 169 is concerned, he submits he does not say that the petitioner was present at the time of occurrence when he was shown the accused at the police station. CW 199 no doubt identified this accused in the police station as one of the accused being present at the spot. Their statement has been recorded on 30.7.2012 and 12.9.2012. Further CW 37 does not identify this person as accused, though he was arrested on the very day and was identified by CW 199. Having regard to the delay in these witnesses coming out with their version implicating the petitioner, it does not lend any credence to rely the same. He further submits an iron rod has been recovered at the instance of this petitioner. Since accused Nos. 34, 35, 38 and 41 have been granted bail by this Court in the very same case as the petitioner does not stand on a different footing than that of those accused, the petitioner be also released on bail since he is in custody from 30.7.2012.

Per contra, Sri H.M. Thimmarayappa, learned Special SPP contended the presence of this petitioner on the spot is spoken to in unequivocal terms by C.Ws. 6, 11 and 19. He has been identified by CW 199 as the person, who was present at the time of occurrence. He further submitted that the said C.W. 199 disclosed that this petitioner along with other accused chased the inmates of Qualis car and scared them away. Apart from the same, an iron rod with which the present petitioner had caused damage to the car has been recovered at the instance of the petitioner. Therefore, these materials would constitute the offence punishable u/s 302 of IPC as against the petitioner. Hence, the petitioner is not entitled to be released on bail.

Accused Nos. 34, 35, 38 and 41 have been granted bail by this Court. Though C.Ws. 6, 11 and 19 have stated that the petitioner was present at the time of occurrence and he had caused damage to one of the car by hitting with an iron rod, which has been seized at his instance, the said witnesses have come out with this version belatedly. The identity of this person as stated by C.W. 199 is also after lapse of time. Since the petitioner is in custody since 30.7.2012, as the investigation is completed and final report has been filed, there is no justifiable reason to decline the request of the petitioner. Accordingly, I pass the following:

ORDER

Petition is allowed.

(i) The petitioner is ordered to be released on bail on his executing a personal bond in a sum of Rs. 2,00,000/- with two sureties for the likesum to the satisfaction of the committal Magistrate or to the Sessions Judge, if case is committed to the Court of sessions subject to the following conditions:-

(ii) He shall not tamper with the prosecution witnesses.

(iii) He shall not leave the jurisdiction of the Committal Court without the express permission of the committal Magistrate till the case is committed and if the case is committed, without the express permission of the Sessions Judge till the conclusion of the trial in the case except for attending to the Court at Bangalore City;

(iv) He shall also mark his attendance before the Nelamangala Police Station between 10.00 a.m. and 3.00 p.m. on every Wednesday and Sunday till the conclusion of the trial;

(v) If any of these conditions are violated by the petitioner, the bail granted to him stands automatically cancelled and the Court concerned shall take him to custody forth-with.