Karnataka High Court
Mylappa vs State Of Karnataka on 17 September, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL PETITION No.5829/2018
BETWEEN:
1.MYLAPPA
S/O.PARASAPPA,
AGED ABOUT 28 YEARS
OCCUPATION:LABOUR,
R/O 2ND CROSS, A.K.COLONY,
DAVANAGERE DISTRICT-577601.
2.MANJUNATHA
S/O.PARASAPPA,
AGED ABOUT 23 YEARS
OCCUPATION:STUDENT,
R/O 2ND CROSS, A.K.COLONY,
DAVANAGERE DISTRICT-577601. ..PETITIONERS
(BY SRI C H JADHAV, SENIOR COUNSEL ALONG WITH
Ms.RASHMI JADHAV, ADVOCATE)
AND:
STATE OF KARNATAKA
BY HARIHARA POLICE STATION,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001. ..RESPONDENT
(BY SRI K P YOGANNA, HCGP)
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THIS CRIMINAL PETITION IS FILED U/S.439 OF
CR.P.C BY THE ADVOCATE FOR THE PETITIONERS
PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN
CRIME NO.195/2017 OF HARIHARA TOWN POLICE
STATION, DAVANAGERE DISTRICT AND IN
S.C.NO.60/2018 PENDING ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 323, 324, 506
AND 504 READ WITH SECTION 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition has been filed by the petitioners- accused Nos.1 and 2 under Section 439 of Code of Criminal Procedure seeking their release on bail for the alleged offence punishable under Sections 323, 324, 504 and 506 read with Section 34 of IPC in Crime No.195/2017 of Harihara Town Police Station.
2. I have heard learned Senior counsel Sri C H Jadhav on behalf of petitioners-accused Nos.1 and 2 and also heard learned HCGP for respondent-State. 3
3. The genesis of the complaint are that one Nethravathi, informed the complainant that petitioners assaulted his father and he sustained injuries and immediately complainant came to said place and when he enquired about the incident, the injured explained that injured used to put food to the birds on the terrace of his house and petitioners picked up quarrel stating that he is doing black magic and to stop the same. Even inspite of telling the same on the alleged date of incident, the injured started chanting mantra and was smearing water and also doing some acts. Petitioners under the impression that again he is doing black magic went and started quarrelling and injured also quarreled with the petitioners and at that time accused No.1 assaulted deceased with brick on his face, head and other parts. So also accused No.2 assaulted by fisting and accused No.3 also assaulted with hands.
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4. On the basis of the said complaint, a case was registered in Crime No.195/2017 against the petitioners for the offence punishable under Sections 506, 504, 323, 324 read with Section 34 of IPC.
5. It is the contention of the learned Senior Counsel that the alleged incident has taken place in a spur of a movement when there was a quarrel between the deceased and the accused persons being enraged, accused No.1 took a brick and assaulted on the injured. He further submitted that there is four days delay in filing the complaint. He further submitted that already charge sheet has been filed and even assuming that if the entire case of the prosecution is taken as it is at the most said offence attracts Section 304 Part II of IPC and do not fall within Section 302 of IPC as accused persons did not have any intention to cause death. He also submits that petitioners-accused 5 persons are young students and pursuing their studies and if they are not released their future educational career is also effected. He further submitted that earlier their petitions came to be dismissed as charge sheet was not filed and now under the changed circumstances, charge sheet being filed and even accused No.3 has not been sent for trial, the present petition has been filed. He further submitted that if reasonable conditions are imposed and accused- petitioners are released on bail they would abide by the conditions imposed on them. On these grounds he prays for release of accused Nos.1 and 2- petitioners on bail.
6. Per contra, learned HCGP vehemently argued and submitted that there is prima facie material to show that the accused persons are involved in the alleged offence under Section 302 of IPC and there 6 are eye witnesses and eye witness one Ganganna in his statement has specifically stated with regard to the overt acts of each of the persons. He further submitted that the accused-petitioners have assaulted the deceased with brick and even post mortem report indicates the fact that the deceased died due to head injuries. He further submitted that earlier bail petition came to be dismissed by considering all the materials. There are no good grounds made out so as to reconsider the bail application filed by the accused- petitioners. He further submitted that if petitioners are released they may abscond and will not be available for trial. On these grounds he prays for dismissal of the petition.
7. I have carefully and cautiously gone through the contents of the complaint and earlier order and even other materials which has been placed for the purpose 7 of perusal of this court. By going through the contents of the complaint as narrated therein, it indicates that the petitioners picked up quarrel in connection with the deceased doing black magic against them and thereby they have been put in trouble. As could be seen from the contents of the complaint and other materials it indicates that when quarrel was going on, at that time it is accused No.1 who took a brick and assaulted on the deceased and accused No.2 fisted on the deceased and as a result of the same, deceased fell down and subsequently died on 15.12.2017. Though it is the contention of the learned HCGP that earlier petition filed under Section 439 of Code of Criminal Procedure came to be dismissed vide order dated 23.02.2018. But by perusing the records it is seen that at that time charge sheet materials were not available before this court and now charge sheet has also been filed. Under such 8 changed circumstances, this court can entertain second petition which has been filed under Section 439 of Code of Criminal Procedure. By going through the contents of the complaint and earlier order and on perusal of the records, it indicates accused No.1 who assaulted deceased with a brick on face, head and other parts of the body and even post mortem report also indicates that deceased died due to head injuries and that there is material as against accused No.1 to show that it is because of the assault by petitioner- accused No.1 deceased succumbed to injuries. So far as accused No.2 is concerned he has only fisted and assaulted on the deceased and there is no serious allegation against petitioner-accused No.2. Taking into consideration the overt acts of each of the accused, there is prima facie material as against accused No.1 to show that he is involved in serious offence punishable under Section 302 of IPC. Though 9 learned Senior counsel submitted that alleged incident has taken place in a spur of a movement when they were quarreling with accused No.1 and assaulted the deceased, which requires to be considered at the time of trial and at this stage this court cannot hold a mini trial and see whether it comes under Section 302 or Section 304 Part II of IPC. In that light insofar as petitioner-accused No.1 is concerned, his prayer is rejected. Insofar as petitioner -accused No.2 is concerned there is no serious allegation. The only allegation made in the complaint is that he fisted on the deceased and even assuming that said act is done by accused No.2 and no serious injuries are sustained that would result in death. By imposing stringent conditions if petitioner-accused No.2 is enlarged on bail, it would meet the ends of justice.
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Hence, petition is partly allowed. Petition filed by petitioner-accused No.1 is dismissed. Insofar as petitioner-accused No.2 is concerned he is enlarged on bail on executing a personal bond for a sum of `1,00,000/- with two sureties for the likesum to the satisfaction of the trial court. He shall not tamper with prosecution evidence in any manner. He shall not leave the jurisdiction of the court without prior permission and shall be regular in attending court till trial is concluded.
Sd/-
JUDGE SBN