Karnataka High Court
Shivappa And Ors vs The State And Anr on 6 July, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.200105/2021
BETWEEN:
1. Shivappa S/o. Malappa Biradar
Age: 45 years, Occ: Agriculture
2. Vithal S/o. Laxman Biradar
Age: 32 years, Occ: Agriculture
3. Shivappa S/o. Kobbanna Pujari
Age: 25 years, Occ: Agriculture
4. Kumar S/o. Lagamanna Biradar
Age: 19 years, Occ: Agriculture
5. Revappa S/o. Mahadevappa Biradar
Age: 24 years, Occ: Agriculture
6. Kenchappa S/o. Toppanna Biradar
Age: 58 years, Occ: Agriculture
All are R/o. Tontapur village
Tq: Sindagi, Dist: Vijayapur
...Appellants
(By Sri Anil Kumar Navadagi, Advocate)
2
AND:
1. The State of Karnataka
Through Almel Police Station
Tq: Sindagi, Dist: Vijayapur
By the Additional
State Public Prosecutor, High Court
of Karnataka, Kalaburagi Bench
2. Dayanand S/o. Huchappa Madar
Age: 28 years, Occ: Coolie
R/o. Tontapur village, Tq: Sindagi
Dist: Vijayapur - 586202
... Respondents
(By Sri Sharanabasappa M. Patil, HCGP for R1;
R2 served)
This Criminal Appeal is filed under Section 14A(2) of
SC/ST (PA) Act praying to allow the appeal and set aside
the order dated 05.04.2021 in Crl.Misc.No.330/2021
rejecting the bail petition filed by the appellants under
Section 439 of Cr.P.C. and enlarge the appellants on bail in
Crime No.14/2021 of Almel P.S. of Vijayapura district
which is now pending on the file of II Addl. Dist. &
Sessions Judge/Spl. Judge, Vijayapura in Spl.Case SC/ST
No.24/2021 registered for offences under Sections 143,
147, 148, 323, 324, 326, 341, 307, 504, 506 read with
Section 149 of IPC and Section 3(1)(r)(s) of SC/ST PA Act,
2015.
This Appeal coming on for Admission this day, the
Court delivered the following:
3
JUDGMENT
The appellants/accused Nos.3 to 5 and 9 to 11 have filed this appeal under Section 14A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( for short, 'SC/ST (PA) Act') challenging the order dated 05.04.2021 passed in Crl.Misc.No.330/2021 on the file of II Additional Sessions Judge, Vijayapura, pending in Special Case (SC/ST) No.24/2021, whereby the learned Sessions Judge has rejected the application filed by the appellants under Section 439 of Cr.P.C.
2. The factual matrix leading to this case are that on 27.02.2021, at about 8.00 p.m., the present appellants along with other accused persons were proceedings from Arjunagi to Vibhutihalli village and they were lighting fire crackers in procession and it was passing in front of the house of CW.12. Then, CW.12 has requested the accused persons to light the crackers at some distance as the oxen are frightened. Then the present appellants along with other accused persons abused CW.12 and assaulted. Then 4 the complainant and CWs.6 to 11 intervened and they were also abused. In the said tussle, some injuries have been caused to CWs.6, 7, 8 and 12. It is further alleged that then CWs.1, 11 and 14 were shifting CW.12 in tum- tum vehicle in order to go to Almel for providing him treatment and on the way, the present appellants and other accused persons have blocked the road by using a iron loaded tractor-trailer and then, the present appellants and other accused persons picked up quarrel with the complainant and others. It is also alleged that the present appellant No.1/accsued No.3 has assaulted by stick on the head of CW.12, appellant No.2/accused No.4 has assaulted CW.11 by iron road on his head and appellant No.3/accused No.5 has assaulted CW.14 by club on his head and chest causing injuries. It is further alleged that the other appellants and other accused persons abused them in filthy language with reference to their caste and also instigated others to take away the life of CWs.11, 12, 13 and they have sustained grievous injuries. In this regard, a complaint came to be lodged. On the basis of 5 the complaint, the investigating officer has issued FIR in Crime No.14/2021 of Almel police station for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 341, 307, 504, 506 read with Section 149 of IPC and under Section 3(1)(r)(s) of SC/ST (PA) Act. Subsequently, after completion of the investigation, the investigating officer has also submitted the charge sheet against the present appellants and other accused persons. The present appellants are arrayed as accused Nos.3 to 5 and 9 to 11 in the charge sheet and in the FIR, they are shown as accused Nos.3 to 5, 10, 14 and 15. The appellants were arrested and were produced before the Special Court and then they were remanded to judicial custody.
3. The appellants have filed a petition under Section 439 of Cr.P.C. for enlarging them on bail before the II Additional Sessions Judge, Vijayapura. But, the learned Sessions Judge by his order dated 05.04.2021 has rejected the bail petition filed by the appellants on the ground that the investigation is still under progress and 6 certain overt-acts have been alleged against the present appellants. Thereafter, the appellants have filed a criminal petition before this Court under Section 482 of Cr.P.C. and subsequently, they have withdrew it and filed this appeal under Section 14A(2) of the SC/ST (PA) Act challenging the impugned order of the learned Sessions Judge and sought for setting aside the impugned order by admitting the appellants on bail.
4. Heard the arguments advanced by the learned counsel for the appellants and learned High Court Government Pleader for respondent No.1 - State. Respondent No.2 though served, is unrepresented. Perused the records.
5. The learned counsel for the appellants would submit that the appellants have been falsely implicated in this case and in the complaint, no specific overt-acts have been alleged but, only in subsequent statement of the complainant, specific overt-acts have been alleged that too after 15 days from the date of the incident. It is further 7 alleged that no specific overt-acts or role is assigned to the appellants and some of the accused persons have been granted anticipatory bail by the learned Sessions Judge, but, the ground of parity is not made applicable to the present appellants. It is also asserted that the appellants are permanent resident of Tontapur village in Vijayapura district, possessing movable and immovable properties having deep roots in the society. It is also contended that the appellants also undertake to abide by the terms and conditions to be imposed by this Court. Hence, it is prayed for admitting the appellants on bail by setting aside the impugned order of the learned Sessions Judge.
6. Per contra, the learned High Court Government Pleader has seriously resisted the appeal on the ground that there are specific overt-acts alleged against the present appellant Nos.1 to 3, who are accused Nos.3 to 5 in the charge sheet. He further contended that all the appellants with common intention abused the complainant and other witnesses with reference to their caste and 8 attacked them by using clubs and iron rods and that too they attacked on vital part of the body i.e., head, causing grievous injuries to some witnesses and simple injuries to complainant and others. It is asserted that prima facie material clearly discloses that the appellants by abusing the complainant and others with reference to their caste, having brutally assaulted having knowledge of the consequences and hence, he contended that the learned Sessions Judge is justified in rejecting their bail petition and he further apprehends that in case the appellants are enlarged on bail, there is every possibility of they tampering the prosecution witnesses and jumping bail. Accordingly, he has sought for dismissal of the appeal.
7. Having heard the arguments and perusing the records, it is evident that the present appellants have been charge sheeted for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 341, 307, 504, 506 read with Section 149 of IPC and under Section 3(1)(r)(s) of SC/ST (PA) Act. The allegations disclose that initially the 9 incident has taken place on 27.02.2021, at about 8.00 p.m., in front of the house of CW.12 and he objected the present appellants for firing crackers and he was assaulted by abusing with reference to caste. It is further alleged that then CW.12 was being shifted in tum-tum vehicle to Almel for treatment. But, the appellants and other accused persons blocked the road and appellant Nos.1 to 3/accused Nos.3 to 5 attacked the victims by iron rods and clubs while other accused persons assaulted them by hands and abused them in filthy language with reference to their caste.
8. The learned Sessions Judge has rejected the bail petition on the ground that the investigation is still pending. However, now it is evident that the charge sheet has been already submitted and the present appellants are alleged to be in custody from 02.03.2021. However, the allegations regarding caste is that they were abused the complainant and other witnesses with reference to their caste asserting that 'K ªÀiÁzÀgÀ ¸Àƽ ªÀÄPÀ¼ Ì Áå' and this is the only 10 simple allegation regarding the offence under the provisions of SC/ST (PA) Act. Further, the allegations made in the further statement and charge sheet disclose that appellant No.1/accused No.3 has assaulted CW.12 by stick on his head while appellant No.2/accused No.4 has assaulted CW.11 by iron rod on his head and legs while appellant No.3/accused No.5 has assaulted CW.14 by club on his head and chest. The wound certificates of these witnesses namely, Shankar, Gopal and Huchappa clearly disclose that they suffered injuries on right parietal area, left frontal area and right frontal area respectively. Further, it is also evident from the wound certificates that the injuries are grievous in nature. The wound certificate of Huchappa further disclose that he has suffered fracture of temporal bone and also comminuted undisplaced fracture involving roof of right orbit. It is evident that the attack was also on the vital part of the body by the appellant Nos.1 to 3, who are accused Nos.3 to 5 in the charge sheet. The specific overt-acts are alleged against these appellants and these appellant Nos.1 to 3 have used 11 clubs and iron rods to assault the injured victims and that too assault is on the vital part of the body and thereby caused grievous injuries, which would have been fatal. Hence, there is prima facie material evidence as against appellant Nos.1 to 3. As such, question of admitting them on bail at this juncture does not arise at all. The ground that the investigation is concluded and charge sheet has been submitted cannot be considered, as there is likelihood of they tampering the prosecution witnesses and jumping bail.
9. As regard appellant Nos.4 to 6, who are accused Nos.9 to 11 in the charge sheet, no specific overt- act is alleged against them and only simple allegation is that they assaulted the witnesses by hands and abused the complainant and other witnesses with reference to their caste. Looking to the allegations and the overt-act alleged against these appellant Nos.4 to 6 and considering the fact that the investigation is completed, I am of the considered opinion that their continuation in the custody is not 12 warranted and they can be admitted on regular bail. The other apprehensions raised by the learned High Court Government Pleader can be meted out by imposing certain conditions insofar as appellant Nos.4 to 6 are concerned. Hence, the appeal is required to be allowed partly insofar as appellant Nos.4 to 6 alone. Accordingly, I proceed to pass the following:
ORDER The appeal is partly allowed so far as it relates to appellant Nos.4 to 6 alone by setting aside the impugned order passed by the II Additional Sessions Judge, Vijayapura in Cril.Misc.No.330/2021, dated 05.04.2021 and they are ordered to be enlarged on bail in Almel police station Crime No.14/2021 of Vijayapura district, registered for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 341, 307, 504, 506 read with Section 149 of IPC and under Section 3(1)(r)(s) of SC/ST (PA) Act, on each of them executing personal bond in a sum of Rs.1,00,000/- with one sound surety for the like-sum to 13 the satisfaction of the said Court subject to following conditions:
i) Appellant Nos.4 to 6 shall not tamper with the prosecution witnesses directly or indirectly;
ii) Appellant Nos.4 to 6 shall appear before the Trial Court on all the hearing dates without fail, unless they were specifically exempted by the Court;
iii) Appellant Nos.4 to 6 shall not indulge in any criminal activities.
However, the appeal filed by appellant Nos.1 to 3/accused Nos.3 to 5 stands rejected.
Sd/-
JUDGE Srt