Karnataka High Court
Shivalingappa S/O Lingappa Kumbar vs State Of Karnataka on 4 September, 2019
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4 T H DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL PETITION NO.101597/2019
BETWEEN:
1. SHIVALINGAPPA S/O LINGAPPA K UMBAR
AGE: 35 YEARS, OCC: COOLIE,
R/O: KALAKERI, TQ: KANAKAGIRI ,
DIST: KOPPAL.
2. SHIVALINGAPPA S/O DEVAPPA ULLAGADDI
AGE: 35 YEARS, OCC: COOLIE,
R/O: KALAKERI, TQ: KANAKAGIRI ,
DIST: KOPPAL.
... PETITIONERS
(BY SRI. M.B.GUNDAWADE, ADVOCATE)
AND
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUT OR,
HIGH COURT OF K ARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH KANAKAGIRI POLI CE STAT ION.
... RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK , HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C. SEEKING TO ENLARGE THE PETITIONERS ON
BAIL IN KANAKAGIRI P.S. CR.NO.20/ 2019, ON THE
FILE OF ADDL. CIVIL JUDGE & JMFC COURT,
GANGAVATHI, FOR THE ALLEGED OFFENCES U/S 120B,
363, 302, 201, 109 R/W 34 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This criminal petition is filed by the petitioners-accused Nos.3 and 4 under Section 439 of the Code of Criminal Procedure in connection with Kanakagiri P.S. Crime No.20/2019 for the offences punishable under Sections 302, 201 of IPC. Since from the date of their arrest, the petitioners-accused are in judicial custody. Therefore, the learned counsel for the petitioners is praying for enlargement of the petitioners on regular bail among the grounds urged therein.
2. Heard the learned counsel for the petitioners and the learned HCGP for the respondent - State.
3. Factual matrix of this petition are as under:
It is stated in the complaint that on 19.02.2019 at about 8.00 a.m., the :3: complainant came to know that dead body of an unknown person was thrown into the water tank at K.Katapur village. The hands and legs of the dead body of an unknown person were tied with means of nylon rope. The dead body was floating in the aforesaid water tank. The complainant who visited the said water tank, he saw Kanakagiri Police and also staff members of fire fighter and also dead body which was floating in the water tank. The Police of Kanakagiri P.S. and also the fire fighter staff members took out the dead body of an unknown person from the water tank. The neck part and legs of the deceased were tied with a nylon rope. The private part of the deceased was also tied with means of iron wire and the dead body of an unknown person was completely decomposed. The photos of the said dead body was taken by the police authorities :4: during the course of the investigation and the crime came to be registered against the accused persons. The complainant suspected that some unknown persons have committed the murder of the deceased, as where dead body of an unknown person was floating in the water tank situated in the limit of K.Katapur village. Based upon the complaint filed by the complainant, the crime came to be registered and recorded the FIR. Thereafter, the case has been taken up for investigation by the Investigating Officer in order to lay the charge sheet against the accused. During investigation, the Investigating Officer has held inquest over the dead body in the presence of the panch witnesses and drew mahazar. During inquest proceedings, the Investigating Officer has seized the cloths and :5: also other materials found on the dead body of an unknown person.
4. Subsequent to completion of the investigation by the Investigating Officer and he laid the charge sheet against the accused before the committal court for the offences punishable under Sections 302 and 201 of IPC. Subsequently, the remaining offences were lugged against the accused in a charge sheet laid by the Investigating Officer. These petitioners are arraigned as accused Nos.3 and
4. The learned counsel has produced the entire charge sheet which consists of statement of witnesses and so also the seizure mahazar said to be conducted by the Investigating Officer in the presence of the panch witnesses and also having seized cloths and so also other materials. The said documents are produced by the learned counsel for the petitioners for the :6: purpose of perusal and also the Investigating Officer has laid the charge sheet against the accused after completion of the investigation. It is further stated that the accused No.2- Durgamma, is none other than the daughter of accused No.1-Yankappa. The said Durgamma is none other than the wife of the deceased Kanakappa. Therefore, it is said that the deceased Kanakappa is the son-in-law of accused No.1-Yankappa. The said accused No.2-Durgamma used to attend the coolie work in the land of accused No.4-Shivalingappa Ullagaddi. Said Durgamma had developed illicit intimacy with accused No.4-Shivalingappa Ullagaddi. On coming to know the said fact, relating to illicit relationship with accused No.4 by accused No.2-Durgamma, the deceased Kanakappa suspected her fidelity and also started to pick up quarrel insisting her not to :7: work in the land of accused No.4. It is further revealed in the charge sheet laid by the Investigating Officer that on 14.02.2019, accused No.2-Durgamma and her father accused No.1 informed to accused Nos.3 and 4 that from the date of her marriage with the deceased Kanakappa, she was fed up with her husband, as the deceased was made to assault her and also not allowing to do work and she was facing difficulty in the hands of her husband. The accused persons alleged to commit the murder of Kanakappa and threw dead body of the deceased in the water tank situated in the limit of K.Katapur village. However, these petitioners-accused as well as other accused held conspiracy to eliminate the deceased Kanakappa. On the fateful day, at around 8.00 p.m., the accused Nos.3 and 4 went to the house of the deceased Kanakappa :8: on a motorcycle bearing registration No.KA-37/ EB-3194 and secured the deceased Kanakappa and also instigated him to consume alcohol at Kanakagiri and went to Kanakagiri Brandy Shop situated therein and made the deceased Kanakappa to consume alcohol and they returned to the land of accused No.4 around 10.30 p.m., where accused No.4 caught hold Kanakappa. In the meanwhile, accused No.1 and accused No.3 alleged to commit the murder of the deceased Kanakappa by using materials such as, nylon rope, tied around his neck and private part of the deceased was also tied with means of iron wire. These are all the allegations made in the charge sheet laid by the Investigating Officer against the accused. Accused Nos.1, 3 and 4 in order to destroy the evidence, they shifted the dead body of Kanakappa from the scene of crime situated in :9: the land of accused No.4 in a motorcycle to the water tank situated in the limit of K.Katapur village, therein the legs and hands of the deceased Kanakappa was tied with means of nylon rope and tied with a stone on his waist part and threw the dead body in the water tank situated in the limit of K.Katapur village.
5. Whereas, the learned counsel for the petitioners, who has taken me through the averments made in the complaint and so also the substances of the charge sheet laid by the Investigating Officer against the accused. It is further submitted that there is no direct overt- act attributed against the accused, even though they have been lugged into the heinous offences by laying the charge sheet.
6. It is further submitted that one Durgamma alleged to be the wife of deceased she had seen the deceased Kanakappa : 10 : proceeding with accused Nos.3 and 4 and she has not taken any steps about missing of Kanakappa for a considerable period of 1½ months. The said Durgappa cited as a witness and he accompanied with the sister of accused No.1 Yankappa namely Ambamma and she is none other than the mother of the deceased. But after lapse of 45 days, Ambamma identified the dead body of Kanakappa said to be her son, but the dead body was floating in water tank situated in the limit of K.Katapur village, but the same has been identified by her after lapse of 45 days. The said materials were collected by the Investigating Officer during the course of investigation and that indicates the involvement of these petitioners-accused Nos.3 and 4.
7. It is further stated that accused No.4- Shivalingappa Ullagaddi alleged to have an : 11 : illicit intimacy with accused No.2-Durgamma, who is none other than the wife of the deceased Kanakappa and so also the son-in-law of accused No.1. The said accused No.2 did not come forward to file a complaint before the respondent-police even though her husband was missing. However, the entire charge sheet reveals that the complainant had not filed any complaint with respect to missing of the deceased. The investigating materials do not disclose that there are eyewitnesses for the prosecution in order to reveal that the accused were participated in the alleged incident even though it has taken in the scene of crime of a land belonging to accused No.4. There is a considerable delay in registration of the crime against the accused even though heinous crime alleged to have committed by the accused. But no legal admissible reasons are forthcoming for : 12 : the said delay in recording the FIR and also proceeding with the case for investigating and to lay the charge sheet by recording the statement of witnesses as well as in drawing the mahazar in the presence of the panch witnesses and so also the inquest held over the dead body and also having seized the materials such as cloths were found on the dead body. The materials such as nylon rope and iron wire, the same were subjected to property forms relating to crime registered by the police against the accused. As this contention taken by the learned counsel for the petitioners as where the ingredients made in the complaint and so also the averments made in the FIR, but there is no direct overt-act attributed against the accused.
8. The second limb of the argument has been taken by the learned counsel for the : 13 : petitioners that even though the Investigating Officer has laid the charge sheet against the accused, but initially FIR has been recorded for the offences under Sections 302 and 201 of IPC in Crime No.20/2019 of Kanakagiri P.S. But later-on, the offences under Sections 120B, 363, 109 r/w 34 of IPC has been invoked in a charge sheet laid by the I.O., and nowhere required for any custodial interrogation of these accused, due to the said reasons that the Investigating Officer has laid the charge sheet after completion of the investigation relating to the murder of the deceased. Nowhere it is found in the charge sheet that at the instance of these accused persons, the material objects such, as nylon rope and also iron wire and so also tied with stone said to used by the accused. But in the charge sheet, it consisting PF subjected to those articles. The stone which : 14 : is said to have been used by the accused tied with nylon rope and threw the dead body of Kanakappa into the water tank situated at K.Katapur village has not been seized and the same has not been specifically revealed in the PF subjected by the investigating Officer.
9. Lastly, learned counsel submits that the petitioners being arraigned as accused Nos.3 and 4 in the heinous crime, but there is no direct overt-act attributed against them. But accused No.2-Durgamma had an illicit intimacy with accused No.4, because of that reason enmity took in between accused No.2- Durgamma and her husband Kanakappa, as where the deceased Kanakappa was insisted her not to attend any coolie work in the field of that accused No.4. Because of that reason there was a quarrel took between them. But Durgamma did not come forward to give any : 15 : complaint, as her husband was missing for a considerable period of 1½ months. The same has been revealed in the charge sheet laid by the Investigating Officer. The petitioners accused are the sources to the family members to eke out the life and if they were kept behind the bar for longer period, then the family members of the petitioners would be ruined in the society.
10. Learned counsel further submitted that the petitioners are ready to abide by any terms and conditions imposed by this Court, while granting bail to them. The learned counsel submitted that the petitioners are in judicial custody since from the date of arrest. These are all the contentions taken in order to secure the relief of bail and the charge sheet has been laid against the accused and even at a cursory glance, the prosecution case revolve : 16 : around the circumstantial witness, the same is revealed in the statement of C.Ws.20, 22, 23, 24, 25 and 26. But there are inconsistencies and contradictions arise in the material witnesses such as circumstantial evidence. But at this stage, it cannot be considered that there are strong materials against these petitioners being arraigned as accused Nos.3 and 4 in order to decline the relief of bail. Therefore, the learned counsel for the petitioners prayed to enlarge the petitioners on bail.
11. Per contra, the learned HCGP for the respondent - State has taken me through the averments made in the complaint and so also the charge sheet filed by the Investigating Officer against the accused. On a cursory glance of a charge sheet, it reveals that these petitioners being arraigned as accused Nos.3 : 17 : and 4 and so also accused Nos.1 and 2 that they held a conspiracy to each other to eliminate the deceased Kanakappa. There is no dispute about that deceased Kanakappa is none other than the husband of accused No.2- Durgamma. The accused had committed murder of the deceased by using materials such as nylon rope and also iron wire, the said wire has been tied to the private parts of the deceased, which found there and the same has been seized by the Investigating Officer during the course of investigation and the said iron wire has been subjected in PF. That itself indicates that the accused were having an intention to eliminate the deceased, as the said Kanakappa had some quarrel in nature with his wife accused No.2. The said Durgamma had an illicit intimacy with accused No.4-Shivalingappa Ullagaddi. Because of that reason, these : 18 : petitioners-accused Nos.3 and 4 as well as accused Nos.1 and 2 hatched a conspiracy to each other and therefore, Section 120B of IPC has been lugged against them and so also Section 363 of I.P.C. as wherein the deceased Kanakappa was carried in a motorcycle belonged to accused No.4. Subsequent to committing the murder of the deceased Kanakappa that the said motorcycle has been used for carrying the dead body and thrown into the water tank situated in the limit of K.Katapur village with an intention to destroy the evidence and so also escape from the legal punishment. The same has been revealed in the entire charge sheet laid by the Investigating Officer against the accused. The Investigating Officer has investigated the case thoroughly and laid the charge sheet, which consisting the statement of the aforesaid : 19 : witnesses. But the said witnesses statements are found in the charge sheet having vital in nature as such entire case is based upon the circumstantial evidence to establish the guilt of the accused. However, it indicates that the accused having an intention to eliminate the deceased Kanakappa as wherein that Kanakappa had come in the way of his wife, who had an illicit intimacy with accused No.4. Though the FIR has been recorded by the police, it is based upon the complaint filed by the complainant. Initially the offence under Section 302 and 201 of IPC has been lugged in Crime No.20/2019, but subsequent to registration of the crime and after the thorough investigation, offences under Sections 363, 109 and 120B of IPC have been invoked. Merely because invoking for the said sections, it cannot be the ground that there are no : 20 : strong materials against these accused to participate with other accused Nos.1 and 2 in order to eliminate the deceased Kanakappa.
12. It is further contended that the Investigating Officer has held inquest over the dead body of the deceased by drawing mahazar in the presence of panch witnesses, but the dead body has been identified by the mother of the deceased. The said Akkamahadevi has been cited as witness in the charge sheet and she has stated in her statement which are consisting with the statement of her mother and also with the voluntary statements of accused Nos.3 and 4. In the last paragraph of the voluntary statement of the accused, it reveals as the modus operandi of the accused in order to eliminate the deceased. That itself indicates that accused No.3 had also : 21 : participated with accused Nos.1 and 2 in order to eliminate the deceased.
13. It is further submitted that the prosecution has relied upon the statements of C.Ws.20, 22 and 23 and their statements have been recorded by the Investigating Officer. The prosecution is also required to establish the guilt of the accused as a last scene theory in a heinous offence committed by the accused persons. These are all the materials placed in the charge sheet laid by the Investigating Officer against the accused.
14. It is furthers submitted that there are strong prima facie materials which collected by the Investigating Officer. Therefore, the accused are required to face the trial as the case of the prosecution is based upon the circumstantial evidence in nature and the accused have been involved in a heinous : 22 : offence to eliminate the deceased Kanakappa with the assistance of accused Nos.1 and 2. Therefore, it appears that there are prima facie materials against the accused and hence, the accused do not deserve for bail. However, if the accused are supposed to be released on bail, certainly there shall be an adverse impact on the society. These are all the contentions taken by the learned HCGP and prayed to reject the bail petition, as the petitioners do not deserve for the bail as sought for.
15. In the backdrop of the contentions taken by the learned counsel for the petitioners and so also the severe contention taken by the learned HCGP for the State, as where these accused said to have participated with accused Nos.1 and 2 in order to eliminate the deceased Kanakappa. The deceased Kanakappa who is none other than the husband of accused No.2- : 23 : Durgamma. The deceased Kanakappa was the relative of accused No.1, who is none other than the father-in-law of the deceased. CW17- Ambamma who is none other than the sister of accused No.1 and also being mother of deceased Kanakappa. She has identified the dead body of an unknown person, which was found in decomposition and the same was identified after the lapse of 45 days. Accused No.2-Durgamma did not come forward to file a missing complaint or even after the dead body has been noticed by the complainant. Accused No.4 had an illicit intimacy with accused- Durgamma, as the said Durgamma had a criminal conspiracy to eliminate the deceased. She has been used to attend the coolie work. On the fateful day at around 8.00 p.m. the accused Nos.3 and 4 went to the house of the deceased Kanakappa on a motorcycle bearing : 24 : registration No.KA-37/EB-3194 and secured the deceased Kanakappa and also made him to consume the alcohol at Kanakagiri and went to Kanakagiri Brandy Shop situated therein and again made the deceased Kanakappa to consume alcohol and return to the land of accused No.4 and after returning to the land of accused No.4 at around 10.30 p.m., the accused No.4 caught hold Kanakappa. In the meanwhile, accused No.1 and accused No.3 alleged to have committed the murder of the deceased Kanakappa by using materials such as, nylon rope which was tied around his neck and private part of the deceased was also tied with means of iron wire.
16. Keeping in view of the contention taken by the learned counsel for the petitioners and also the similar contentions as addressed by the learned HCGP, the entire case is rests : 25 : on the statements of C.Ws.20, 22, 23, 24, 25 and 26. These petitioners are arraigned as accused Nos.3 and 4 and either based on any material aspect or based upon any co-accused statement or based on an extra judicial confession, still these remain suspicion to the prosecution case. However, the case of the prosecution is entirely based upon the statement of the aforesaid witnesses and it has to be established by the prosecution beyond all reasonable doubt.
17. It is seen that during the investigation, the Investigating Officer has visited the scene of crime and conducted panchanama in the presence of the panch witnesses and the murder was taken place in the land belonged to accused No.4. However, the motorcycle belonged to accused No.4- Shivalingappa Ullagaddi has been seized during : 26 : the course of investigation and so also the cloths belonged to the deceased was also seized and nylon rope which has alleged to use by the accused for having tied with the vital parts of the deceased and also used to tie the neck of the deceased, the same were seized in the presence of panchas. However, the charge sheet has been laid against the accused by securing material documents. Therefore, it is said that the materials secured by the Investigating Officer are enough materials to lay the charge sheet against the accused, but it cannot be said that the materials which are collected by the Investigating Officer during the course of investigation are enough materials to decline the relief of bail. The entire case of the prosecution is based upon the circumstantial evidence and if the accused are kept behind the bar, the family members of : 27 : the petitioners - accused would be ruined in the society, as this fact is also required to be considered as well as other grounds which are urged by the learned counsel for the petitioners. Therefore, at this stage, it is said that it does not require for any detailed discussion, while considering the bail petition filed by the petitioners, as there are substances in the contention of the learned counsel for the petitioners seeking for the relief of bail.
18. Whereas, the learned HCGP submits that if the petitioners are supposed to be released on bail, certainly they would come in the way of prosecution case and would destroy the evidence. Whereas, the apprehension expressed by the learned HCGP, could be curtailed by imposing certain suitable : 28 : conditions to safeguard the interest of the prosecution.
19. Therefore, for the aforesaid reasons as well as under the circumstances of the case, I am of the considered opinion that the petitioners are deserving for bail. Accordingly, I proceed to pass the following:
ORDER The bail petition filed by the petitioners under Section 439 of the Code of Criminal Procedure is hereby allowed, subject to the following conditions:
(i) The petitioners-accused Nos.3 and 4 shall execute a bond in a sum of Rs.1,00,000/- each with like sum surety to the satisfaction of the Court as where the case in Crime : 29 : No.20/2019 of Kanakagiri P.S. is pending.
(ii) The petitioners shall not tamper or hamper the case of prosecution witnesses.
(iii) The petitioners shall appear before the Court of law on all the dates of hearing without fail.
(iv) The petitioners shall not indulge with any other criminal activities henceforth.
(v) The petitioners shall mark their attendance once in a month i.e. first Sunday in between 10:00 a.m. and 05:00 p.m. before the concerned SHO pending disposal of the entire case.: 30 :
(vi) The petitioners shall not leave the jurisdiction of Koppal District without prior permission from the competent Court of law.
If the petitioners violate any of the above conditions, the bail order shall automatically stands ceased.
SD JUDGE CLK