V. Narayan vs State

K.N. Keshavanarayana, J.—In this petition filed u/s 439 of Cr.P.C., petitioner arrayed as accused No. 1 in C.C. No. 298/2013 on the file of JMFC, H.D. Kote, registered for the offence punishable u/s 302 r/w Section 34 of IPC has sought for an order to enlarge him on bail inter alia contending that he is innocent and has not committed the offence alleged and that he has been falsely implicated in the case, therefore, he is entitled to be enlarged on bail. The petition is opposed by the respondent-State.

I have heard the learned counsel appearing on both the sides. Perused the copy of the charge sheet papers, copies which have been produced.

One G.V. Srinivas, is the deceased in this case. The case of the prosecution as could be seen from the charge sheet papers rests on circumstantial evidence, as there are no eye-witnesses to the alleged incident. According to the case of the prosecution, in the intervening night of 24/25.2.2013, this petitioner, deceased G.V. Srinivas and accused No. 2-Murthy together had liquor party in the farm house of the deceased near Kabini Colony, Beechanahalli Village, H.D. Kote Taluk. After drinking liquor, a quarrel ensued between them under intoxication of liquor and thereafter, the petitioner and accused No. 2 by assaulting the deceased, killed him and thereafter went away from the place. It is further case of the prosecution that in the morning of 25.2.2013, this petitioner informed CW 13-Bhasker over phone about the deceased Srinivas lying in the farm house and when he went to the farm house to get back his helmet, in spite of his attempt to wake up the deceased, he did not woke up and since he was in a hurry to go to his work he asked CW 13 to go there and find out as to what has happened to the deceased. Immediately CW 13 informed this to CW 6, one of the brothers of the deceased, CW 7 & CW 9 about the same. Immediately, CW 13, 7 & 9 went to the farm house and found the deceased lying dead. By that time CW 1, another brother of the deceased and CW 6, reached the scene of occurrence. In the meanwhile, CW 1 had also received telephonic message from this petitioner about the petitioner, deceased and accused No. 2 having liquor party in the farm house, during the previous night. On the basis of this information and after seeing the injuries on the dead body, CW 1 lodged a report before the jurisdictional police at 12.30 p.m. on 25.5.2013 suspecting the role of this petitioner and accused No. 2 in the death of the deceased. On the basis of the said report lodged by CW 1, case in Crime No. 31/13 for the offence u/s 302 r/w Section 34 of IPC came to be registered by showing this petitioner and accused No. 2 as suspected persons. At 2.00 p.m. on 25.5.2013, according to the prosecution, accused No. 2 was arrested and his voluntary statement was recorded. According to the prosecution, the statement of the owner of the Bar CW 17 revealed that at 2.00 p.m. on 24.2.2013, deceased along with the petitioner herein came to the bar and purchased 3 bottles of 8 pm Brandy and again between 4.00 and 4.30 p.m., the deceased along with the accused No. 2 came to the bar and purchased three bottles of 8 pm brandy and went away from the place.

During investigation, inquest was held over the dead body and later the same was subjected to the post mortem examination. During post mortem examination, the Doctor noticed the deceased having consumed liquor. He also noticed injuries on the head and other parts of the body. The viscera preserved during post mortem examination was subjected to chemical examination and ultimately, the Doctor opined that the death was due to intra cranial hemorrhage on account of severe chest injury over the left side, as a result of blunt force. During investigation, this petitioner was arrested. Thereafter, he was subjected to judicial custody. On completion of the investigation, charge sheet came to be filed.

It is the submission of the learned counsel for the petitioner that even if all the materials on record are accepted at its face value, it would not make out a prima facie case against this petitioner for the offence alleged and therefore, he is entitled to be enlarged on bail.

However, according to the learned Government Pleader, the circumstantial evidence would prima facie establish that this petitioner is guilty of the aforesaid offence and therefore, having regard to the nature and gravity of the offence, the petitioner is not entitled for the relief of bail.

No doubt, the contents of the post mortem report and the opinion furnished by the Doctor would prima facie indicate the death of the deceased as homicidal. Even according to the materials produced along with charge sheet, theory of last seen together with the petitioner was only at 2.00 p.m. as according to the statement of CW 17, the deceased and this petitioner came to the bar at about 2.00 p.m. and purchased some liquor and went away. Even according to the statement of CW 17, the deceased was seen in the said bar again at 4.30 p.m. along with accused No. 2. Therefore, as against this petitioner, the theory of last seen together prima facie is of no significance, since, the deceased was seen alive in the company of accused No. 2 at a later point of time. As could be seen from the entire case of the prosecution, the prosecution relies strongly on the alleged extra-judicial confession said to have been made by this petitioner to CW 1 over the phone about he along with deceased and accused No. 2 having liquor party in the previous night. Having regard to the facts and circumstances of the case, I am of the considered opinion that the materials produced along with the charge sheet, at this stage do not prima facie indicate the role of this petitioner for the homicidal death of the deceased. Therefore, the petitioner is entitled to be enlarged on bail. The apprehension of the prosecution regarding tampering and absconding could be allayed by imposing strict conditions.

Hence, the petition is allowed. The petitioner is ordered to be enlarged on bail C.C. No. 298/13 on the file of JMFC, H.D. Kote (Cr. No. 31/2013 of Beechanahalli P.S., Mysore Dist), on his executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties for the like sum to the satisfaction of the jurisdictional Magistrate/Sessions Judge and subject to the further conditions that:

i) He shall not tamper or terrorise the prosecution witnesses in any manner;

ii) He shall appear before the jurisdictional court on all hearing dates without fail;

iii) He shall not go out of the jurisdiction of the court of sessions without prior permission thereof.

iv) He shall mark his attendance with the jurisdictional police station on very 10th & 25th of each calendar month till the disposal of the case.