Y. Vijayakumar @ Viji vs State of Karnataka

H.S. Kfmpanna

The petitioner, who is arrayed as a accused No. 1 in SC No. 560/2011 on the file of the Presiding officer, Fast Track Court 16, Bangalore City, has prayed for releasing him on bail pending disposal of the aforesaid sessions case. The petitioner along with two others are facing trial on the charges for the offences punishable under Sections 364, 302, 201 r/w 34 I.P.C. Apart from these accused, there is also a juvenile offender who is (sic) trial for the very same offences before the Juvenile Court.

It is the case of the prosecution that on the morring of 14.12.2010, deceased Krishnamurthy, who was working as Assistant Executive Engineer in the Vigilance Squad of BESCOM, left his house to the office at about 9.00 am in his official car driven by CW6 Nagaraju. It is further the case of the prosecution that on that day at about 5.00 pro, the deceased took a lift in his official car driven by CW6 near Sadvani circle situated on M.G. Road and at the said place, after getting down from the car. he asked the driver to take the car to the house along with his official bag and informed the inmates of the house that he would be coming late in the night. Accordingly, CW6 came to the house of the deceased and informed his children and others in the house that the deceased would be coming late on that day. Ac that time, the wife of the deceased was not in the house and she was informed about the same by her children on her return to the house an that day. It is further the case of the prosecution that thereafter the deceased, went to the garment factory of accused No. 1 situated at K.G. Garden which is located behind Lal Bagh in Bangalore. After he went to the said place, accused No. 1 secured his employees-accused Nos. 2 and 3 and there they committed the murder of the deceased and thereafter they removed the body of the deceased in the, Swift oar belonging to the deceased brought by accused No. 4 to a place called Mannampoondi village situated near Krishnagiri in Tamilnadu Stats and there they threw the same into a well and abandoned the car at some distance and sped away from the said place.

It is also the case of the prosecution that after the deceased went to the factory of accused No. 1, accused No. 4 made a call from the cell phone to the complainant and informed that her husband/deceased has been trapped by Lokeyuktha police while accepting bribe of Rs. 1,00,000/- and in order to save him from the said trap, she has to bring cash of Rs. 11,00,000/- and ultimately she was informed on phone to come with atleast Rs. 5,00,000/- near puttanna Chetty Town Hall, Bangalore and accordingly the complainant, after making arrangement, procured a sum of Rs. 3,00,000/- and came in Swill car belonging to the deceased near Puttanna Chetty Town Hall and there she handed over the cash of Rs. 3,00,000/- to accused No. 4, who in turn handed over a packet which contained the photo of deceased along with the lady which was given by him to establish the identity to the complainant, Thereafter A4 left the said place along with cash and the Swift car belonging to the deceased.

It is further the case of the prosecution that on the morning of 15.12.2010 at about 1.00 p.m., CW29, a passer-by noticed an unknown dead body floating in the well situated at Mannampoondi village near Krishnagiri and he informed the same to Vollimedu Petal police station. The said police, on the basis of the said information, registered case in Crime No. 180/2010 for an offence u/s 302 of I.P.C and took up investigation. The said police also held inquest on the very day and also subjected the body for post mortem examination on 16.4.2010.

In the meantime, since the deceased did not turn up to the house, CW1 the complainant lodged missing complaint with Cubbon park police on 15.12.2010 at 1.30 p.m. The said police, on the basis of the said information lodged by CW1, registered a case for the offences punishable under Sections 364 (A), 342, 419, and 420 of I.P.C and took up investigation.

The said police during the course of investigation arrested accused No. 4 on the basis of the calls made by him to CW1 in the cell phone. After his arrest they also arrested the accused NOS. 2 and 3 on the information furnished by him Later, they also arrested accused No. 1 on the basis of the information furnished by the aforesaid A-2 to A-4. After the accused were arrested by Cubbon park police on the basis of the information furnished by this petitioner, the police recovered the cash of Rs. 2,64,000/- from his house situated at K.G. Garden behind Lal Bagh at Bangalore. Before that, on the basis of the information given by A-2 and A-3, they also drew up mahazer of the place of occurrence as pointed out by the said accused. Thereafter, Cubbon park police came to know that Vellimedu petai police having registered the case in connection with the unknown dead body, they went to the said police station and collected the papers in connection with Crime No. 100/ 2010 of their police station as the said investigation papers were connected to Crime No. 303/2010 of their police station, Thereafter CW1 identified the body that had been preserved by Tamilnadu police as that her deceased husband apart from the basis of the articles that had seized found on the body. Thereafter, the police on completion of the investigation submitted final report before the jurisdictional Magistrate who in turn committed the case of the accused to the Court of sessions which is now pending in SC 560/2011 in which the accused are facing trial

Learned Counsel appearing for the petitioner contended that the entire case of the prosecution is based on circumstantial evidence. The circumstance that has been pressed into service to connect the petitioner is only the recovery of the cash of Rs. 2,64,000/- made from his house at his instance alter his arrest. He further contended that this petitioner was arrested by the police on the basis of the information furnished by A-2 to A-4. In this case, except the recovery of cash of Rs. 2,64,000/-, there is no other incriminating material available against this petitioner. The recovery of cash, according to the learned counsel, by itself is not sufficient to held that he is responsible for the homicidal death of the deceased. He further contended that the medical officer who has conducted the post mortem has opined that the death might have occurred three to five days prior to his conducting postmortem examination, which has been conducted on 16.4.2010 at 12.50 pm and if that is taken into consideration, the case of the prosecution that the deceased was done to death on 14.12.2010 in the factory premises of accused No. 1 give rise to a strong suspicion and further as the medical officer has also reserved the opinion as to the case of death, it cannot be said that the material now Available on record discloses that the deceased has died on homicidal death and having regard to the circumstance that has been pointed out against the petitioner it may not be sufficient to hold against him for releasing him on bail and therefore as he is in custody since 16.2.2010 and as two other accused in this very case namely A-3 and A-4 have already released on bail by the learned Session Judge, the petitioner also be released on bail pending disposal of the trail.

Per contra, the learned High Court Government pleader vehemently contended that as the material now on record reveals that the deceased has been to done to death by the account in this case including this petitioner on account of the enmity that existed between them in respect of financial transaction he is not entitled to be released on bail. He further submitted that the statement of CW-27 and 28 reveals that they have been the deceased in the company of the accused in the factory premises of this petitioner for the last occasion, and thereafter dead body of the deceased has been found in the well and having regard to the injuries found on the body of the deceased there is ample material to show that the accused are responsible for the murder of the deceased. Further, in view of the recovery that has been made at the instance of the accused, petitioner is not entitled to be released on bail.

From the material now on record made available, the entire case of the prosecution is baaed upon circumstantial evidence. It is the case of the prosecution that on 14.12.2010 when the deceased Krishnamurthy came to the factory of'' the accused No. 1, A-1 secured his employees A-2 and A-3 and committed his murder in the factory premium. Thereafter removed the body in the ear belonging to the deceased himself which in the mean time bad been brought by A-4 to a place called Mannampoondi village near Krishnagiri in Tamilnadu and was thrown in a well and car was abandoned. The material on record reveals the present petitioner came to be arrested on 16.12.2010 on the information of accused Nos. 2 to 4 who had been arrested earlier to him After his arrest the prosecution has legged him on the basis of the recovery of cash of Rs. 2,64,000/-made at his instance on his information. This is the only strong circumstance that is glaring against the petitioner. Further, the prosecution has also relied upon the statement of CW27 and 28 who claim to have been the deceased in the company of the accused in the factory of A-1 for the last occasion, A perusal of the statement discloses that they have only heard some crisis of the person but there is nothing to show that they have actually seen the deceased in the company of the accused. A-3 and, A-4 in the case as submitted by the learned counsel for the petitioner have already been released on a bail. The present petitioner is in custody since 16.2.2010 i.e., nearly for about one year four months. Therefore having regard to the materials now placed on record as against this petitioner in the facts and circumstances, I do not find any justification to decline the request of the petitioner for releasing him on bail, In the result, I proceed to pass the following:-

ORDER

(i) Criminal Petition is allowed.

(ii) The petitioner is ordered to be released on bail on his executing a personal, bond in a sum of Rs. 1,00,000/- with two sureties fir the like sum to the satisfaction of the Trial Judge, subject to the following conditions;

(a) He shall not tamper with the prosection withnesses.

(b) He shall attend the ''Trail Court an all the heading date without fail