Karnataka High Court
Akash S/O Parameshwar Ningad vs The State Of Karnataka on 27 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200509/2020
Between:
Akash S/o Parameshwar Ningad
Age: 22 Years, Occ: Working at Medical Shop
R/o Morkhandi, Tq. Basavakalyan
Dist. Bidar-585 401
... Petitioner
(Sri Ashok B. Mulage &
Sri Baburao Mangane, Advocates)
And:
The State of Karnataka through
Police Basavakalyan Rural Police Station
Tq. Basavakalyan, Dist. Bidar-585 401
Represented by Addl. SPP
High Court of Karnataka
Kalaburagi Bench-585 107
... Respondent
(By Sri Gururaj Hasilkar, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C, praying to allow the petition and enlarge the
petitioner on bail in Crime No.70/2019 of Basavakalyan
Rural P.S., Tq. Basavakalyan, Dist. Bidar for the offences
punishable under Sections 341, 504, 506 and 302 of IPC.
2
This petition coming on for Orders this day, the Court
made the following:
ORDER
(Through Virtual Court) This petition is filed by the petitioner / accused No.1 under Section 439 of Cr.P.C., seeking to enlarge him on bail.
2. Brief facts of the case as per FIS and Charge- sheet are as under;
It is alleged by the wife of the deceased that there is a property dispute between her and the petitioner, and their father-Parameshwara. In this regard, a case is pending before the Civil Court. It is alleged in the complaint that the father of the petitioner and his brother have started construction of a house on the land which is belonging to the complainant and which is objected by the complainant and the deceased. In this regard, there were many altercations took place between them and also case is pending before the Civil Court. When this being the fact, on 22.09.2019 at 8.00 a.m. 3 there was quarrel took place between the complainant on one side and the petitioner and his father on the other hand. Then, when the deceased had been to near Hanuman Temple to bring his grandson at 2.00 p.m., on the same day therein the petitioner and his father and brother have come there and picked up quarrel with the deceased and brother and father of the petitioner have held the deceased and the petitioner had assaulted on the left side neck of the deceased with sword (Talavar) and committed grievous injuries and with that assault the deceased died on the spot, this is witnessed by the eyewitnesses stated in the FIS. Therefore, in this regard a complaint is lodged before the police and accordingly a crime came to be registered as against the petitioner as well as father and brother in the FIS.
3. After investigation, charge sheet came to be filed by the investigating officer and in the charge sheet, it is alleged that the petitioner alone had committed the 4 offence of murder and had not filed charge sheet against the father and brother of the petitioner. Therefore, as per the charge sheet only the petitoner is facing charges for the offence punishable under Section 302, 341, 504 and 506 of IPC.
4. The learned counsel for petitioner submits that there is a property dispute between the deceased and the father and brother of the petitioner. The father of the petitioner started construction in his land which is not belonging to the deceased and even though in this regard the deceased had filed a suit and filed an appliation for grant of temporary injunction, but the application for temporary injunction filed by the deceased was dismissed. Therefore, prima facie it shows that the construction is made on his land, but not on the land of the deceased. Further, submitted that even though there are eyewitnesses as stated in the charge sheet but they have not really witnessed the incident, they are planted eyewitnesses. Further stated that the 5 petitioner himself voluntarily surrendered before the police which shows the petitioner is a law abiding citizen. Further submitted that the offence under Section 302 of IPC is not attracted since at the most the quarrel taken place at the spur of moment and the petitioner having lost control over his emotions and such incident might have been happened. Therefore, prayed to grant bail on these grounds.
5. On the other hand, learned HCGP would submit that the petitioner had committed a henious offence of murder of the deceased by using Sword and there are eyewitnesses to the incident who are C.Ws.12 to 15 and further as per the P.M. report the death of the deceased is due to injuries to the neck major vessels and might have caused by sharp object. Therefore, the prosecution has ample materials against the petitoner and the petitioner had committed offence of brutal murder of the deceased and when the case is pending 6 before the Civil Court, then the petitioner should not have taken the law into his hand and therefore prayed to reject the bail petition.
6. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the State.
7. Upon considering the complaint averments and charge-sheet materials initially in the complaint given by the complainant, it is alleged against the petitioner and his father and brother that all have shared common intention and have taken up quarrel with the deceased and have held the deceased and the petitioner took out sword and assaulted on the neck and the deceased fell down and died on the spot. But in the charge sheet the father and brother of the petitioner are not arraigned as accused and now the charge sheet is filed only against the petitioner. As per the charge sheet materials it prima facie discloses that the 7 petitioner had used Sword (Talwar) while assaulting the deceased on his neck. Therefore, the prosecution prima facie shows that the nature of weapon used is a danger weapon and targeting the neck of the deceased which is a vital part of the human body and if a foricible assault is made with weapon like, sword then certainly chances of committing murder is more and therefore which shows the prima facie intention on the part of the petitioner in order to commit the offence alleged. Further upon perusing the PM report which is revealed that the death of the deceased is due to injuries to the neck major vessels and might have caused by sharp object. Therefore, this prima facie shows that the complicity of the involvement in the crime in commission of murder of the deceased. Further, as per the charge sheet materials C.Ws.12 to 15 are the eyewitnesses to the incident. Further, prima facie discloses that there is a property dispute between the petitioner, his father and brother on the one side and 8 the deceased on the other side and in this regard even though the deceased had filed a suit in the Civil Court, but the petitioner had committed the offence alleged. The submission made by the learned counsel for the petitioner that the application for grant of temporary injunction is dismissed by the Civil Court, therefore it prima facie shows that the property is belonging to the petitioner and his father that cannot be considered at this stage since it is a matter before the Civil Court to decide who is the owner and in possession of the property. Prima facie on records it shows when case is pending before the Civil Court, the petitioner had committed the murder of the deceased.
8. Therefore, considering the gravity of the offences as alleged and considering the parameters to grant bail while exercising the power under Section 439 of Cr.P.C by following the guidelines of the Hon'ble Apex Court in the case of Myakala Dharmarajam and others vs. State of Telangana and another [(2020) 2 9 Supreme Court Cases 743], wherein at para 7, it has been held as under ;-
"7. The factors to be considered while granting bail have been held by this Court to be the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the evidence and witnesses, and obstructing the course of justice, etc. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. For the purpose of bail, the court must not undertake meticulous examination for the evidence collected by the police and comment on the same. (Kanwar Singh Meena v. State of Rajasthan - (2012) 12 SCC 180]."
9. Further the Hon'ble Apex Court in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee and another [(2010) 14 Supreme Court Cases 496]. Wherein at para 9, it has been held as under;-
"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally 10 incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are :
(i) whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
[See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21] (SCC p.31, para 18), Prahlad Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280], and Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598]."
10. Therefore, upon considering the factual matrix in the present case while consideirng the bail petition as discussed above, it is the case of the 11 prosecution that the petitioner had committed murder by using sword (Talwar) in day brought light at 2.00 p.m. by assaulting with sword on the neck of the deceased which all shows that the petitioner has intention to commit the murder of the deceased over the property dispute. Even though the case is pending before the Civil Court when such brutal murder of the deceased committed, considering the gravity of the offence alleged and the severity of the offence prescribed in the said offence alleged, therefore, I am of the opinion that if the petitioner is released on bail then there would be every chances of absconding and fleeing away from the justice and also threatening the eyewitnesses who are the wife of the deceased having 6 girl children. Hence, this court is of the opinion that there are concrete chances of threatening the witnesses much particularly the complainant and her children, therefore considering all these factors discussed above, the present bail petition is liable to be dismissed. 12
Accordingly, the present petition is dismissed.
Sd/-
JUDGE BL