Karnataka High Court
Shankargouda @ Shankarling vs The State Of Karnataka on 28 July, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC-K:5940
CRL.P No. 200881 of 2023
IN THE HIGH COURT OF KARNATAKA,KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 200881 OF 2023 (439-)
BETWEEN:
1. SRI.SHANKARGOUDA @ SHANKARLING
S/O. APPASAHEB BIRADAR @ KARIGOUDAR
AGED ABOUT: 36 YEARS OCC: AGRICULTURE
R/O. BUDIHAL PH, TQ. SINDAGI DIST. VIJAYAPUR
...PETITIONER
(BY SRI. S S MAMADAPUR,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA THROUGH
PSI SINDAGI POLICE STATION VIJAYAPUR
REPRESENTED BY ITS ADDL.STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE
HIGH COURT BUILDING, KALABURAGI 585102.
2. SHRIMANT S/O CHANNAGONDAPPA YARAGOL
R/O. DEVARA NAVADAGI,TQ. SINDAGI DIST. VIJAYAPUR
Digitally signed 586101
by (AMENDED VIDE COURT ORDER DATED 24/7/23)
LUCYGRACE
Location: HIGH ...RESPONDENT
COURT OF (BY SRI. GURURAJ V. HASILKAR ,HCGP FOR R1;
KARNATAKA SRI. S. R. KADLOOR AND SRI. VADIRAJ KADLOOR,
ADVOCATES FOR R2)
THIS CRL.P. IS FILED U/S. 439 OF CR.P.C PRAYING TO,
RELEASE THE PETITIONER ON BAIL IN CRIME NO.116/2022 OF
SINDAGI P.S, DIST. VIJAYAPURA, FOR THE OFFENCES PUNISHABLE
U/SEC. 498(A), 302, 201, 109, 202, 212 R/W SEC.149 IPC -
PENDING BEFORE THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE VIJAYAPUR.THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE VIJAYAPUR HAS REJECTED THE BAIL PETITION IN
CRL.MISC.721/2023 ON 09.06.2023.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
-2-
NC: 2023:KHC-K:5940
CRL.P No. 200881 of 2023
ORDER
The petitioner, who is sought to be prosecuted for the offences punishable under Sections 498A, 302, 201, 109, 202, 212 read with Section 149 of IPC, has filed this petition under Section 439 of Cr.PC.
2. The case of the prosecution is that, the accused No.1 is the husband of the daughter of the complainant, and in the said wedlock, they had begotten four children. Since there was incompatibility between them, and also the accused was quarreling with her and assaulted her, the daughter of the complainant was staying at the matrimonial home. On 6.6.2022 at about 1.00 p.m., the complainant received a phone call from his brother stating that, his daughter and brother, who were going to Budhihal on motorcycle to bring the school documents of children of Rajashree, the petitioner - accused No.1 has murdered both of them.
3. Heard the learned counsel for the petitioner - accused No.1 and the learned High Court Government for the respondent No.1 - State and the learned counsel for the respondent No.2 - defacto complainant.
4. CWs.27, 28, 29 and 31 are alleged eye witnesses to the incident. The incident has taken place on 6.6.2022, and the statements of CW27 on 23.6.2022, CW.28 were recorded on 7.7.2022, CW31 on 22.8.2022 respectively. The accused No.1 was arrested on 9.6.2022. The blood stained cloth of the -3- NC: 2023:KHC-K:5940 CRL.P No. 200881 of 2023 accused was recovered from agricultural field on the same day, where he was hiding.
5. The contention of the petitioner - accused No.1 is that, the recovery of the blood stained cloth of the accused cannot be said to be a piece of incriminating evidence against him. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Sonvir v. State (NCT of Delhi), (2018) 8 SCC 24, wherein the Apex Court has held as follows:
"26.3. Alleged recovery of bloodstained shirt 26.3.1. As per the prosecution, a bloodstained shirt was recovered at the instance of Sonvir alias Somvir (Appellant- Accused 2) from his room in the house of Teja Chaudhary, at the time of his arrest. The bloodstained shirt was sent for analysis to the FSL. As per the FSL report (Ext. PW 33/A), the shirt allegedly recovered from Sonvir alias Somvir (Appellant- Accused 2) was found to be stained with human blood of "B"
group, which was the same "blood group" as that of the deceased.
26.3.2. In para 20, the High Court held the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant- Accused 2) to be incriminating against him, since the blood samples taken from the bedsheet at the scene of crime, were also found to be of the same blood group.
26.3.3. It is relevant to note that as per the FSL report (Ext. PW 33/A), both the bloodstained shirt allegedly recovered from Sonvir alias Somvir (Appellant-Accused 2) and the blood samples taken from the bedsheet at the scene of crime were found to be stained with human blood of "B" group.
26.3.4. The mere matching of the blood group of the blood samples taken from the bedsheet at the scene of crime, and the bloodstained shirt recovered from Sonvir alias Somvir (Appellant-Accused 2) cannot lead to the conclusion that the appellant had been involved in the commission of the crime.
-4-NC: 2023:KHC-K:5940 CRL.P No. 200881 of 2023 26.3.5. On this issue, reliance can be placed on two decisions of this Court in Prakash v. State of Karnataka [Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642] , paras 41 and 45 and Debapriya Pal v. State of W.B. [Debapriya Pal v. State of W.B., (2017) 11 SCC 31 : (2017) 3 SCC (Cri) 832] , para 8 wherein this Court while deciding cases based on circumstantial evidence had held that mere matching of the blood group cannot lead to the conclusion of the culpability of the accused, in the absence of a detailed serological comparison, since millions of people would have the same blood group.
26.3.6. In the present case, the prosecution has not proved that the room from where the bloodstained knife and bloodstained shirt were allegedly recovered, was in the exclusive possession of the appellant. The prosecution case is that the said room was in the house owned by one Teja Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said room was rented to Sonvir alias Somvir and/or was in the exclusive custody of the appellant.
26.3.7. Therefore, the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant-Accused 2) cannot be used as an incriminating piece of evidence."
6. The motorcycle, on which the accused was allegedly riding as on the date of incident, was recovered from the spot. However, the case of the prosecution is that, the accused No.6 helped the accused No.1 to escape from the spot. CW31 in his statement has stated that, he had seen five persons assaulting the deceased as on the date of incident. The accused No.1 is in judicial custody since 9.6.2022. The statements of the alleged eye witnesses to the incident were recorded after 17 days from the date of incident and recovery of the blood stained cloth of the deceased is to be proved at the time of trial. The FSL report indicates that the blood stained clothes of the deceased and that of the accused were examined and it is opined that, -5- NC: 2023:KHC-K:5940 CRL.P No. 200881 of 2023 the blood stained cloth of the deceased wife of the accused were stained with human blood and with `O' group, and that of the accused and the deceased brother-in-law of the accused were stained with human blood and with `A' blood group. The Serology report is not clear as to whether the clothes of the accused were stained with blood of the deceased. The petitioner has made out a prima facie case to enlarge him on bail. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) The petitioner-accused No.1 is enlarged on bail in Crime No.32/2023 registered by the Saidapur Police Station, pending on the file of the learned Sessions Judge, Special Court, Yadgir in Special Case No.54/2023, subject to the following conditions:
(a) The petitioner/accused No.1 shall furnish a personal bond for a sum of Rs.1 lakh with one surety for the like sum to the satisfaction of the Trial Court.
(b) He shall appear before the Court as and when required.
(c) He shall not threaten or allure the prosecution witnesses in whatsoever manner.
(d) He shall not get involved in similar offences.
(e) He shall not leave the territorial limits of the Trial Court without prior permission of the Trial Court.
Sd/-
JUDGE BKM List No.: 1 Sl No.: 16