Karnataka High Court
Vijaykumar @ Beby vs State Of Karnataka on 8 June, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.2334/2022
BETWEEN
VIJAYKUMAR @ BEBY
S/O ANANDAN
AGED ABOUT 26 YEARS
R/AT NO 2-152/A
TANNIR PANDAL GRAMA
VALAYAPALYAM GRAM AND PANCHATH
AVINASHI TALUKU,
TIRUPURU DISTRICT
TAMILUNADU STATE-641653
...PETITIONER
(BY SRI SHIVARAMU H C, ADVOCATE)
AND
STATE OF KARNATAKA
BY ALANAHALLI POLICE STATION
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001
... RESPONDENT
(BY SRI MAHESH SHETTY, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CRIME No.95/2021 OF ALANAHALLY POLICE STATION, MYSURU
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376D, 397,
120B, 109, 324, 325, 326 OF IPC AND ETC.
2
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.95/2021 of Alanahally Police Station, Mysuru for the offences punishable under Sections 376D, 397, 120B, 109, 324, 325, 326 of IPC.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case is that this petitioner and other accused persons have conspired with each other with an intention to commit the offence of sexual act and accused Nos.1 to 5 have committed gang rape and that this petitioner took accused Nos.1 to 5 in his vehicle and dropped them and also there is an allegation against this petitioner in the charge sheet that he also instructed the other accused that when the victim girl is found to call him, hence, he would also be a part of the said offence. The Charge sheet also discloses that he was not a part in committing the gang rape but after the gang rape 3 was committed he took accused Nos.1 to 5 in his vehicle and hence, the offence under Sections 120B and 109 of IPC was invoked against this petitioner.
4. The learned counsel appearing for the petitioner would submit that this petitioner had dropped accused Nos.1 to 5 to the particular place and he was not at the spot when other accused committed gang rape and the only allegation against this petitioner is that he was part of conspiracy and he had committed an offence of abetment and this petitioner is in custody from 03.09.2021 and that investigation is completed and charge sheet is also filed hence, further custodial trial is not required hence, he may be enlarged on bail.
5. Per contra, the learned High Court Government Pleader appearing for the State would submit that all of them have conspired with each other in the shop of CW68 and CW17 is the last seen witness and CW17 states that this petitioner was along with accused Nos.1 to 5 and if bail is granted, it would give wrongful message to the society and hence, there is a prima- facie case of committing the heinous offence of gang rape and prayed to dismiss the petition.
4
6. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record particularly, the charge sheet discloses accusation against this petitioner is invoked under Sections 120B and 109 of IPC and not under Sections 376D and 397 of IPC and the only accusation against this petitioner is that he took accused Nos.1 to 5 to a particular place and left them there and thereafter, he picked accused Nos.1 to 5 from the spot. When such being the case and when no ingredients are available against this petitioner, which attracts offence under Sections 367D and 397 of IPC, which were invoked against accused Nos.1 to 5. Whether he was part of conspiracy in committing the said heinous offence is a matter of trial to be considered during the course of trial and also statement of CW17 and CW68 to be considered during trial. But, the fact is that this petitioner was not in the place of incident and also not a part in committing the offence punishable under Section 376D and the only allegation is that he took accused Nos.1 to 5, who committed the said heinous offence of gang rape and at the time of committing the said offence, this petitioner was not present. When such being the material on record by invoking Sections 120B as well as 109 of IPC and also 5 taking note of the accusation against this petitioner, he cannot be detained in custody as personal liberty of a person is also involved and this Court has to taking note of the said fact into consideration that this petitioner is in custody from 03.09.2021, it is a fit case to exercise the discretion in favour of the petitioner since the accusation made against this petitioner in the charge sheet is that he was only a driver of the vehicle, in which accused Nos.1 to 5 have traveled to the place of incident.
7. In view of the discussions made above, I pass the following:
ORDER The petition is allowed. Consequently, the petitioner/accused No.6 shall be released on bail in connection with Crime No.95/2021 of Alanahally Police Station, Mysuru for the offences punishable under Sections 376D, 397, 120B, 109, 324, 325, 326 of IPC, subject to the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.6
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.
Sd/-
JUDGE SN