Karnataka High Court
Shri Shailesh S/O. Sambhaji Bodale vs The State Of Karnataka on 3 April, 2024
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NC: 2024:KHC-D:6106
CRL.A No. 100138 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100138 OF 2024 (U/S 14 A(2) of SC
and ST ACT)
BETWEEN:
SHRI SHAILESH S/O SAMBHAJI BODALE,
AGE: 24 YEARS, OCC. AGENT OF SELLING OF OLD VEHICLE,
R/O. H. NO.225, SHINTRE COLONY, NIPPANI,
TQ: NIPPANI, DIST: BELAGAVI - 591237.
...APPELLANT
(BY SRI SHARAD V. MAGADUM & A.M.GUNDAWADE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH NIPPON TOWN POLICE STATION.
Digitally signed 2. SMT. RENUKA W/O. RAHUL SUBHANGOL,
by SAROJA AGE: 24 YEARS, OCC: HOUSEWIFE,
HANGARAKI R/O. HITANI VILLAGE, TQ: HUKKERI,
Location: HIGH DIST: BELAGAVI,
COURT OF
KARNATAKA PRESENT ADDRESS
DHARWAD C/O. RAUT HOUSABAI COLONY NIPPANI,
BENCH TQ: NIPPANI, DIST: BELAGAVI-591237.
DHARWAD
...RESPONDENTS
(BY SRI PRAVEENA Y. DEVAREDDIYAVAR, HCGP FOR R1;
SRI. S.P.KANDAGAL, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S 14A(2) OF SC/ST (POA)
ACT 1989., SEEKING TO ENLARGE THE APPELLANT/ACCUSED NO.1
REGULAR ON BAIL IN SPECIAL CASE NO. 670/023 ARISING OUT OF
NIPANI TOWN PS CRIME NO.128/2023, ON THE FILE OF III ADDL.
DISTRICT AND SESSIONS JUDGE BELAGAVI, FOR THE ALLEGED
OFFENCES U/S 120B, 364, 302, 201 R/W 34 OF IPC AND SEC. 3(2)
(V) OF SC/ST P.A ACT 1989.
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NC: 2024:KHC-D:6106
CRL.A No. 100138 of 2024
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/accused No.1 feeling aggrieved by the order of Trial Court on the file of III Additional District and Sessions Judge, Belagavi (Special Court to try the offences under SC/ST (POA) Act) in Crl.Misc.No.1387/2023 dated 19.01.2024 in rejecting the bail application filed under Section 439 of Cr.P.C. preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal of charge sheet materials, the following points arise for consideration:
(i) Whether the impugned order of Trial Court under appeal in rejecting the bail application of accused No.1 filed under -3- NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 Section 439 of Cr.P.C. is perverse, capricious and legally not sustainable?
(ii) Whether interference of this Court is required?
5. On the strength of missing complaint filed by Smt.Renuka Rahul Subhanagol, criminal law was set into motion by registering the case in Nippani Town P.S. Crime No.128/2023 for the offence under Section 363 of IPC. The complaint allegations are to the effect that complainant about 6 years back was in love with Rahul and married him. Out of the wedlock they have got daughter by name Rahi and started residing at Hitani village in Hukkeri taluk. One Shailesh Sambhaji Bhodale used to come to the house of complainant. When complainant questioned her husband about visit of Shailesh Sambhaji Bhodale to the house, she was told that due to his intervention Amar has advanced loan of Rs.2,00,000/- to Shailesh Sambhaji Bhodale and now Amar is demanding his money back and in connection with the said transaction Shailesh Sambhaji Bhodale is visiting to the house of complainant. -4-
NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 5(a). On 02.01.2023 while complainant was in the house at 12.00 noon, Shailesh Sambhaji Bhodale came to the house on his Activa Honda Motorcycle and questioned about the husband of complainant and she told that he has gone out of the house. The said Shailesh Sambhaji Bhodale again came back to the house of complainant at 5.00 p.m. and at that time also the husband of complainant had not returned to the house. However, Shailesh Sambhaji Bhodale was waiting for the husband of complainant in front of the house of complainant. After 10- 15 minutes the husband of complainant came to the house and after having lunch he went along with Shailesh Sambhaji Bhodale on his assurance that he will pay money to the husband of complainant. However, the husband of complainant did not return to the home. At about 7.30 p.m., complainant went to the house of Uttam Kamate friend of husband of complainant and enquired about her husband. He told that the husband of complainant had gone to Kolhapur, since Shailesh Sambhaji Bhodale has taken him stating that he is going to give money, further -5- NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 he has received live location from WhatsApp which showed that they were proceeded towards Gargooti and he did not know what happened thereafter. It is on the next day at 7.00 a.m complainant filed the complaint. On these allegations made in the complaint, the Investigating Officer having completed investigation, filed the charge sheet.
6. Learned High Court Government Pleader has filed objections opposing the bail application contending that the case of prosecution rests on circumstantial evidence and there are sufficient material evidence against the accused to connect with the charges levelled against him. Accused No.1 and 2 have voluntarily surrendered before the police and there is recovery of incriminating materials at the instance of accused. If the accused is released on bail, he may abscond from the process of law and tamper with prosecution witnesses. Therefore, prayed for dismissal of the appeal.
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7. Respondent No.2 though has appeared through counsel, has not filed any separate objections, but made oral submissions.
8. On perusal of charge sheet materials, it would go to show that the entire case of prosecution rests on circumstantial evidence. The incident of missing of husband of complainant took place on 02.10.2023 at about 5.00 p.m. Complainant filed missing complaint of her husband on 03.10.2023 at 7.00 a.m. and accordingly case was registered for the offence under Section 363 of IPC. On the very same day at 11.30 complainant gave her first further statement and second further statement is also recorded on the same date and the third further statement of complainant came to be recorded on 11.10.2023. Looking to the complaint allegations and the charge sheet materials, it would go to show that the loan transaction was between Amar of Vengurla and accused No.1 Shailesh Sambhaji Bhodale. The husband of complainant was alleged to be the middle person for -7- NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 Shailesh getting loan from Amar and the said Amar was demanding back his money of Rs.2,00,000/- given as loan to Shailesh Sambhaji Bhodale. The said material witness Amar of Vengurla is not cited as charge sheet witness. The complaint allegations would go to show that complainant approached Uttam Kamate friend of her husband to enquire as to where her husband has gone, since he did not return to the home even after 7.30 p.m. and he is cited as CW.16 in the charge sheet and his statement came to be recorded on 18.10.2023. On perusal of the statement of this material witness of prosecution CW.16, it would go to show that himself and his brother Vijay Kamate, Jayasingh Tikale and Ashraf Mulla on the basis of live location received by him went in search of Rahul in Gargooti and then Budargad fort where they found to have seen blood stains on the road, since it was isolated place they came back to Nippani. On the next day morning they went to the said place and found the blood stains, chappals, further they found the dead body of Rahul having injuries and dead body was taken for postmortem -8- NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 examination by Budargad police. If this statement of CW.16 Uttam Kamate is perused in view of the fact that accused No.1 and 2 have surrendered before Avinash Kavatel, Inspector on 03.10.2023 at 21.33 hours and they have been arrested by Laxmipuri Police Station, Maharashtra on 03.10.2023 itself, then it is evident that whatever he has stated in his statement is based on the information given by the police which they have received after the arrest of accused. The statement of family members and other witnesses would speak about they having come to know about the death of husband of complainant Rahul. Another material witness of prosecution is CW.22-Nagesh Shamrao Patil. On perusal of his statement, it would go to show that both the accused were there at poultry of Arjun Nagar and on enquiry both of them made extra judicial confession before him that they have committed the murder of Rahul, since he was repeatedly asking the money and to repay the loan availed from Amar. This statement of CW.22- Nagesh Shamrao Patil came to be recorded on 14.11.2023 after more than -9- NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 a month. The statement of CW.16-Uttam Vishnu Kamate, CW.17-Vijay Vishnu Kamate, CW.18-Ashraf Dastagir Mulla and CW.19-Jayasingh Shankar Tikale would go to show that they went in search of Rahul on the basis of live location, whereas the complaint allegations itself would go to show that the live location was stopped on the night of 02.10.2023 itself. Therefore, they having found the dead body and the articles as stated in their statement based on live location is very much doubtful.
9. Accused No.1 and 2 having shown the spot and preparation of panchanama is alleged to be based on the voluntary statement said to be given by accused No.1 and 2 before the Investigating Officer on 04.10.2023. The Investigating Officer filed requisitions dated 06.11.2023 for giving accused No.1 and 2 to police custody. The Trial Court has granted the police custody of accused No.1 and 2 and they have showed the places of incident and accordingly panchanama was prepared. Learned counsel for accused No.1 in support of his contention that after
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NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 expiry of first 15 days from the date of arrest of accused further police remand cannot be obtained, relied on the judgment of Hon'ble Apex Court in Budh Singh vs. State of Punjab reported in 2000 (9) SCC 266 wherein it has been observed and held that the order of police remand for further period of 7 days after the expiry of first 15 days period is invalid. On the same point, another latest judgment of Hon'ble Apex Court is relied in Central Bureau of Investigation vs. Vikas Mishra Alias Vikash Mishra reported in (2023) 6 SCC 49, wherein also it has been held that remand to police custody after elapse of first 15 days from the date of arrest is not permissible under law.
10. In the present case, admittedly the case of prosecution rests on circumstantial evidence based on last seen theory, extra judicial confession said to have been made before CW.22- Nagesh Shamrao Patil and lastly showing of very same places by accused No.1 and 2 pursuant to their voluntary statement. Whether the said
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NC: 2024:KHC-D:6106 CRL.A No. 100138 of 2024 circumstances relied by the prosecution would be sufficient to prove the guilt against the accused or not is a matter of trial. Accused No.1 is in judicial custody since from the date of his arrest on 03.10.2023. It is not in dispute that accused No.1 is the permanent resident of the address given in the cause title. The investigation in this case has already been completed and charge sheet has been filed. The presence of accused No.1 before the Court can be secured through the process of law. Therefore, under these circumstances, accused No.1 is entitled for bail. Consequently, proceed to pass the following:
ORDER The criminal appeal filed by appellant/accused No.1 is hereby allowed.
Accused No.1 is ordered to be released on bail on his executing personal bond and surety bond for a sum of Rs.1,00,000/- with one surety for the likesum amount to the satisfaction of the Trial Court, subject to following conditions:
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(i) Accused No.1 shall produce address proof document of himself and that of his surety subject to police verification.
(ii) Accused No.1 shall keep informing the Trial Court regarding change of address, if any, so as to secure his presence before the Court during trial.
(iii) Accused No.1 shall not tamper with prosecution witnesses in any manner.
Sd/-
JUDGE SH CT:GSM List No.: 1 Sl No.: 4