Karnataka High Court
Sri Raghavendra Desai S/O Manohar Desai vs State Of Karnataka on 8 December, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 103733 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103733 OF 2022
BETWEEN:
SRI RAGHAVENDRA DESAI
S/O MANOHAR DESAI
AGE.48 YEARS, OCC. AGRICULTURE,
R/O. KAVALUR, TQ. AND DIST. KOPPAL-583226
...PETITIONER
(BY SRI. NEELENDRA.D.GUNDE, ADVOCATE)
AND:
STATE OF KARNATAKA
By ALWANDI PS
R/BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD-580001
...RESPONDENT
(BY SRI. PRASHANTH V. MOGALI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO GRANT THE PETITIONER/ACCUSED NO.1 ON
REGULAR BAIL IN THE CRIME NO.89/2022 OF ALWANDI POLICE
STATION, REGISTERED FOR THE OFFENCES PUNISHABLE U/S
302, 307, 109, R/W 34 OF IPC AND SECTION 25, 27(2), 27(3), 30
OF ARMS ACT 1959, PENDING BEFORE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KOPPAL IN S.C. NO.67/2022.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 103733 of 2022
ORDER
This petition is filed by accused No.1 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.89/2022 of Alwandi Police Station registered for the offences punishable under Sections 307, 302 and 109 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 25, 27(2) & (3) and 30 of the Arms Act, 1959.
2. The case of the prosecution is that, one Yogesh Desai has filed the complaint stating that on 04.06.2022 at about 11.00 a.m., when he and his brother came from Bengaluru to Kavaloor and they came to know that the accused persons cultivated the land and the land belongs to them. Then, the complainant and Vinay went to the spot with CW-23- Shabir on his tractor for cultivation. At that time, accused No.4-Manohar Desai and accused No.5-Smt. -3- CRL.P No. 103733 of 2022 Kalavathi, accused No.1-Raghavendra(petitioner) and Anjamma and Gundanna Karadi have instigated the petitioner/accused No.1-Raghavendra and his wife accused No.2-Laxmi and at that time the petitioner/accused No.1 was holding rifle and accused No.2 was holding sickle in her hands. It is further stated that when they were quarreling, CW- 13 T. Shivanna came and tried to pacify the quarrel but the accused persons informed that they have cultivated the land and now complainant and his brother are trying to take possession. After that, the petitioner/accused No.1-Raghavendra suddenly came by taking gun, which was owned by the complainant's father and the complainant escaped from the gun shot, however the bullet pierced the deceased-Vinay on right side of neck and he fell down. Accused No.2 came with holding pepper spray and sprayed on the face of the complainant and she assaulted the complainant with sickle on the backside of head of the complainant and he fell -4- CRL.P No. 103733 of 2022 down. When the complainant woke up, he saw that deceased-Vinay sustained several injuries and he was dead and accused Nos.1 and 2 went with the gun on bike. The said complaint came to be registered in Crime No.89/2022 of Alwandi Police Station for the offences punishable under Sections 109, 149, 302, 307 of IPC and Section 25 of Arms Act, 1959. The petitioner/accused No.1 came to be arrested on 05.06.2022 and he is in judicial custody. The Investigating officer after investigation filed charge sheet for the offences under Sections 307, 203 and 109 read with Section 34 of IPC and Sections 25, 27(2) & (3) and 30 of Arms Act. The petitioner filed bail application in SC No.67/2022 and the same came to be rejected by the learned Principal District and Sessions Judge, Koppal, by order dated 16.1.2022. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioner and the learned -5- CRL.P No. 103733 of 2022 High Court Government Pleader for the respondent- State.
4. The learned counsel for the petitioner would contend that, as per the statements of the witnesses i.e. CWs.13 and 23, the land is cultivated by accused No.1 and his family members and the complainant and his brother came to take possession of the land cultivated by accused No.1 and therefore with an intention to protect his property, he has fired and it is in his self defence and it accidentally caused injury to deceased Vinay who succumbed to the injury. It is his further submission that the petitioner is having a right of private defence to protect his property under Section 97 of IPC. It is his further submission that, on perusal of the entire charge sheet material, the case of the prosecution falls under exception (2) of Section 300 or Section 301 of IPC and it does not attract offence under Section 302 of IPC. At most, the offences alleged against the petitioner attracts Section 304 part I or -6- CRL.P No. 103733 of 2022 Part II of IPC which is not punishable with death or imprisonment for life. It is his further submission that as charge sheet is filed, the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader would contend that, the averments of the complaint itself shows that, there is civil dispute with regard to the property and civil cases are pending. It is his further submission that this petitioner and his wife came on bike holding DBBL gun which itself shows his intention. It is his further submission that the statements of CWs.13 and 23 reveal that they are eyewitnesses to the incident and they have witnessed the firing by this petitioner/accused No.1 at the complainant which hit the deceased and caused his death. The said gun has been seized at the instance of the petitioner under mahazar. The Doctor who conducted postmortem examination over the deadbody of the -7- CRL.P No. 103733 of 2022 deceased has noted gun shot injury over the dead body of the deceased and opined that the death is due to hemorrhage, secondary to neck and thoracic trauma sustained as a result of firearm injury. The test report reveal that the DBBL gun of this petitioner is in working condition. The voluntary statement of this petitioners reveal his involvement in the commission of the crime. Charge sheet material shows prima facie case against the petitioner/accused No.1 for the offences alleged against him. Whether the alleged overt act attract Section 302 or 301 of IPC is a matter of trail. Even if it attracts Section 304 of IPC, it is punishable with imprisonment for life or imprisonment for a period of 10 years. If the petitioner is granted bail, there is threat to the complainant and other prosecution witnesses. With this, he prayed to reject the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the -8- CRL.P No. 103733 of 2022 learned High Court Government Pleader, this Court has gone through the charge sheet records.
7. The petitioner, complainant and deceased Vinay are brothers. As per the averments of the complaint, there is dispute with regard to the properties between the complainant and accused persons and there are civil disputes pending in civil Courts and therefore, the accused persons are wrecking grudge against the complainant and his brother. It is the case of the prosecution that this petitioner along with accused No.2 came on motorcycle holding gun and at that time, this petitioner quarreled with the complainant and he fired his gun to kill the complainant but he escaped and the gunshot hit Vinay who sustained injuries and succumbed to the injuries. The Doctor who conducted postmortem examination over the dead body of the deceased has noted firearm injury over the dead body of the deceased and opined that death is due to hemorrhage, secondary to neck and -9- CRL.P No. 103733 of 2022 thoracic trauma sustained as a result of firearm injury. CWs.13 and 23 are eyewitnesses to the incident who have specifically stated about the overt act of this petitioner firing at the complainant which caused gun shot injury to the deceased who succumbed to the injury. The said gun has been seized at the instance of the petitioner under mahazar. The test report reveal that the said DBBL gun which is in possession of the petitioner is in working condition. Whether this petitioner is having right of private defence and whether his act of firing comes under exception (2) of Section 300 or 304 of IPC is a matter of trial. Even if it is considered it as a culpable homicide attracting offence under Section 304 of IPC, it is punishable with imprisonment for life or imprisonment for a period of ten years.
8. On considering the charge sheet material, there is prima facie case against the petitioner for the offences alleged against him. If the petitioner is granted bail, there is threat to the complainant and
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CRL.P No. 103733 of 2022 other prosecution witnesses. The petitioner has not made out any ground for grant of bail.
Accordingly, the criminal petition is dismissed.
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JUDGE kmv