Karnataka High Court
Shivanand Talawar @ Shivappa vs The State Of Karnataka on 18 September, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
Criminal Petition No.101027 of 2020
Between:
Shivanand Talawar @ Shivappa,
S/o Basappa, Age: 30 years,
Occ: Agriculture, R/o: Gulaganji Oni,
Hosa Tegur Village,
Tq: & Dist: Dharwad. ...Petitioner
(By Sri. K.M.Shiralli, Advocate)
A n d:
The State of Karnataka,
Through Garag Police Station,
R/by State Public Prosecutor,
High Court of Karnataka,
Bench Dharwad. ...Respondent
(By Smt. Seema Shiva Naik, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to order the release of this petitioner on
bail in C.C. No.353/2020, registered for the offences
punishable under Section 323, 302 of IPC, arising out of
Garag Police Station Crime NO.23/2020 pending on the
file of the I Additional Civil Judge & JMFC, Dharwad.
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This Criminal Petition coming on for Orders this
day, the Court made the following:
ORDER
This petition is filed by the accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.23/2020 of Garag Police Station, registered for the offences punishable under Sections 323 and 302 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity).
2. The case of the prosecution is that on 18.02.2020, at about 14-15 hours, one Nagaraj, Son of Ulavappa Appannavar, a resident of Hosa Tegur Village, Dharwad Taluk, lodged a complaint with the Garag Police Station alleging that about two years ago, they had given hand loan of Rs.35,000/- to the petitioner- accused, who in turn repaid the same in a sum of Rs.31,000/-, and still there was balance of Rs.4,000/-. It is further alleged that on 17.02.2020 at 7.30 p.m., 3 when the complainant went to the house of the petitioner-accused and demanded balance of Rs.4,000/- the petitioner-accused replied that he has balance of Rs.3,000/- only to be paid. On hearing the same, the complainant called his father over phone. When his father came to that place, he informed the petitioner- accused that he has to pay balance of Rs.4,000/-. It is further alleged that, at that time, the petitioner-accused assaulted the complainant's father with a stick on his head as a result of which he fell down and become unconscious. The complainant's father was shifted to KIMS Hospital, Hubballi, for treatment. A crime was registered for the offences under Sections 326 and 307 of IPC. The petitioner was arrested on 19.02.2020. The injured Ulavappa succumbed to the injuries at 12.15 p.m. on 20.02.2020. The police have filed charge sheet for the offences under Sections 323 and 302 of IPC. The bail application filed by the petitioner-accused in Crl. Misc. No.219/2020, before the Principal Sessions 4 Judge, Dharwad, came to be rejected by order dated 23.06.2020. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. Learned counsel for the petitioner submits that the incident has taken place on 17.02.2020 at 7.30 p.m., but the complaint came to be filed at 2.15 p.m. on 18.02.2020 and thus there is a delay in lodging the complaint. It is his further submission that in the history column of the summary sheet of the KIMS Hospital, Hubballi, the time of the incident is stated as 8.30 p.m. on 17.02.2020, but the complainant, in his further statement, has given the time of the incident as 7.30 p.m.. It is his further submission that the injury sustained by the deceased is only a contusion and the same has been mentioned in the case sheet of the 5 deceased Ulavappa. It is his further submission that as per the summary sheet of the deceased Ulavappa, there is a mention regarding the deceased taking treatment in Cancer Hospital, Navanagar, and he having undergone chemotherapy treatment about two years prior to the incident. It is his further submission that the incident had taken place under the grave and sudden provocation and the assault, which is made by a thin stick, would not attract the offence under Section 302 of IPC, and at the most the same would attract the offence under Section 323 and 326 of IPC. It is further submission that even though the deceased was alive for three days, his dying declaration has not been recorded. With these, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader submitted that the deceased is the father of the complainant. There was a dispute regarding the balance of the hand loan between the accused and the deceased and therefore, the petitioner-accused assaulted the 6 deceased with the stick. It is her further submission that there are four eyewitnesses to the incident. It is her further submission that in the Post-Mortem Report, it is mentioned that the cause of death is due to respiratory failure as a result of head injuries sustained. There is a prima facie case to show that the petitioner-accused has committed the offence alleged against him. It is her further submission that if the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. Hence, she prayed to dismiss the petition.
6. Having regard to the submissions made by the learned counsel for the petitioner-accused and the learned High Court Government Pleader, this Court has gone through the charge sheet records. As per the charge sheet, the incident has taken place in front of the house of the petitioner-accused when the deceased and his son went there to demand repayment of balance hand loan of Rs.4,000/-. There was dispute regarding the balance of hand loan to be paid by the petitioner- 7 accused. As per the complainant, the balance of hand loan to be paid is Rs.4,000/- and as per the petitioner- accused, it is Rs.3,000/-. The assault made by the petitioner-accused on the head of the deceased is with a small thin stick which has been seized by the police. The photograph of the said stick is produced along with the charge sheet. The incident has taken place under the grave and sudden provocation. The injury sustained by the deceased is only a contusion. The deceased was treated for cancer and he had undergone chemotherapy treatment in cancer Hospital two years prior to the incident. The doctor, who conducted the post-mortem examination over the dead body of the deceased, has noted the presence of abraded contusion measuring 3.5 cms. x 2 cms. over top of head (right parietal region), and has opined that the cause of death is due to respiratory failure as a result of head injuries sustained. The investigation has been completed and the charge sheet has been filed. C.Ws.8 to 11 are mentioned as 8 eyewitnesses to the incident. Whether the offence under Section 302 of IPC is attracted or not is a matter for trial as the deceased was suffering and treated for cancer, and that the stick used for assault is a small thin stick.
7. It is well settled that matters to be considered in 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 charge;
(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;
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(vii) reasonable apprehension of the
witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."
8. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under:
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is 10 another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."
9. In the present case, investigation has been completed and the charge sheet has been filed. No grounds have been made out by the prosecution to show that the custodial interrogation of the petitioner is necessary. There are no criminal antecedents of the petitioner-accused. The petitioner is a resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that 11 in the event of granting bail, the petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions.
10. In the facts and circumstances of the case and submissions of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner shall be released on bail in Crime No.23/2020 of Garag Police Station subject to the following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to 12 furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety.
ii) The petitioner shall not indulge in tampering the prosecution witnesses.
iii) The petitioner shall attend the Court regularly and co-operate in speedy disposal of the case.
Sd/-
JUDGE Kms