Karnataka High Court
Shri.Devadas S/O Rajaram Gavakar vs The State Of Karnataka on 1 October, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18 T H DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.100877 OF 2020
BETWEEN
1. SHRI.DEVADAS S/O RAJARAM GAVAKAR
AGE: 28 YEARS, OCC: AGRICLTURE,
2. SHRI.SANTOSH S/O SOMA GAVAKAR
AGE: 32 YEARS, OCC: AGRICLTURE,
3. SHRI.VITHAL S/O GANAPATI NAYAK
AGE: 40 YEARS, OCC: AGRICLTURE,
4. SHRI.RAMA S/O GANAPATI NAYAK
AGE: 20 YEARS, OCC: AGRICLTURE,
PETITIONER NOS. 1 TO 4 ARE
R/O: JAMBOTI, TQ: KHANAPUR,
DIST: BELAGAVI.
5. SHRI.PRASHANT S/O GANAPATI SUTAR
AGE: 28 YEARS, OCC: AGRICLTURE,
R/O: JAMBOTI, TQ: KHANAPUR,
DIST: BELAGAVI.
... PETITIONERS
(BY SRI.VISHWANATH BADIGER, ADVOCATE)
AND
THE STATE OF KARNATAKA
(KHANAPUR P.S.),
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
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HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
AT: DHARWAD.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.439 OF
CR.P.C., PRAYING TO ALLOW THIS PETITION AND ENLARGE THE
PETITIONERS / ACCUSED NOS.1 TO 5 ON REGULAR BAIL IN
CRIME NO.56/2020 REGISTERED BY THE KHANAPUR POLICE
FOR THE OFFENCE PUNISHABLE U/S 304, 201 & 202 OF IPC &
SEC.3(2)(v) OF SC/ST(POA) ACT-1989 AND SEC.25 OF THE
INDIAN ARMS ACT, 1959.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioners-accused Nos. 1 to 5 under Section 439 of Cr.P.C. seeking bail in Crime No.56/2020 of Khanpur Police Station registered for the offence punishable under Sections 304, 201, 202 and Section 3(2)(v) of SC/ST(POA) Act,1989 and Section 25 of Arms Act,1959.
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2. The case of the prosecution in brief is that complainant Tejaswini Tanaji wife of deceased Tanaji Nayak resident of Amate village has filed complaint stating that on 10.03.2020 at about 4 p.m. her mother-in-law returned home from the agriculture filed and informed that their cattle were gone into the jungle area for grazing, inspite of search the cattle are not traced. So on 11.03.2020 at about 9 a.m. the deceased has gone for searching of escaped cattle in the jungle area and the complainant gone for washing clothes and after returning to home one Dondu Nayak informed that one Bear was attacked on her husband and the said incident was informed by one Devidas Rajaram Gavakar in the village. The complainant came to her house and there are many number of persons gathered in her house and thereafter herself and other village persons were rushed to the spot and noticed that dead body of her husband was lying down below the tree and also noticed that blood was oozing from his right ear, forehead and backside of dead body. The 4 death of her husband was caused by attack of bear or any other wild animal but she suspected about his cause of death and accordingly, she lodged the complaint on 11.03.2020. The Medical officer while conducting the post mortem of the dead body found six bullets in the body and after informing the same to her and she stated that on 11.03.2020 the accused persons and others were taken her husband to the forest area and because of some reasons they have committed the murder by firing on him between 9.00 p.m. to 12.30 midnight and thrown the dead body below the tree and the said complaint was registered on 14.03.2020 in Khanapur Police Station Crime No.56/2020 against the petitioners-accused Nos.1 to 5 for the offence punishable under Sections 302, 201 of IPC and Section 3(2)(va) of the SC/ST(POA) Act, 1989. Police arrested the petitioners-accused Nos.1 to 5 on 15.03.2020 and recorded the voluntary statement of Petitioners. Petitioner-accused No.1 in his voluntary statement narrated that he know the deceased as they are 5 doing agriculture in the same village and he on 10.03.2020 at evening gone to the house of deceased and asked to go for hunting in the forest areas as they are free on account of Holi festival and accordingly the relatives of deceased Vittal Ganapati Nayak, Rama Ganapati Nayak and Santosh Ganapati Nayaks and also informed to Prashant Sutar of Jamboti village and thereafter accused No.5 brought the gun and kept in the house of accused No.2-Santosh and accordingly on the next day i.e on 11.03.2020 the deceased told to accused No.1 to proceed and the accused No.1 brought the gun of accused No.5 and accused No.2 brought his gun along with 3 bullets and proceeded in his motorcycle bearing KA-22/HE-8153 at about 9 p.m. from Amate village to Gouliwad village and wherein he asked accused Nos.6 to 9 to come with them for hunting and accordingly they proceeded with him. Meanwhile the deceased was brought the gun of one Vasudev Soma Bhat and accused No.3 took the gun of deceased Tanaji and accused No.6 brought the Sickle and the accused No.5 6 brought 4 bullets and accused No.2 gave 2 bullets to deceased and one bullet to accused No.3. Thereafter all are together proceeded near jungle area within limits of Golyal for hunting of animals. They proceeded about one k.m. from Gavaliwad in the forest area by walk and raised noise for wake up of wild animals at that time deceased saw one Bear and asked others to climb the tree and he fired on the Bear and being enrage by the said Bear they escaped some where and again all the accused together searched the bear by its blood which was drop in the down, when they proceed some distance when they saw the said Bear and the accused No.5 fired one bullet on the bear, then the Bear suddenly attacked on the deceased, then the accused No.1 by taking gun from accused No.3 fired on the said Bear but he did not know that whether the bullet was hit on the Bear or deceased and suddenly the deceased was lie down and the Bear bitten on the face of the deceased, at that time the accused No.1 to save the life of the deceased shot on the Bear by gun and the bear 7 ran away and the gun was broken. They all saw the deceased Tanaji and noticed that he was died on the spot and they brought the deceased towards Gavaliwad Forest area and there to brought him to Amate village near his land and kept below the tree and he washed his blood stained clothes and broken gun and kept in his shed. Thereafter he telephonically informed about incident to the chairman of the village by name Laxman Kasarlekar. The other accused also stated similarly that of accused No.1 in their voluntary statements. Based on the entire investigation and materials and statement of the witnesses the Investigating officer has deleted the offence of Sec.302 of IPC by inserting Section 304, 201 and 202 of IPC. Investigating Officer submitted the final charge sheet against the petitioners-accused Nos.1 to 5 for the offence punishable under Sections 304, 201, 202 and Section 3(2)(v) of SC/ST (POA) Act, 1989 and Section 25 of Indian Arms Act, 1959. The petitioners-accused Nos.1 to 5 have filed bail application under Section 439 of Cr.P.C. in 8 Crl.Misc.No.830/2020 before III Addl. Sessions Judge, Belagavi and the same is dismissed by order dated 07.07.2020. Therefore, the petitioners are before this Court seeking bail.
3. Heard the learned counsel for the petitioners- accused Nos.1 to 5 and learned HCGP for respondent- State.
4. It is the submission of the learned counsel for the petitioners-accused Nos.1 to 5 that on looking to the entire accusations made in the charge sheet, there was no intention on the part of accused No.1 to kill the deceased Tanaji and accidentally gun shot hit the deceased and he died. It is his further submission that only an offence under Section 304(ii) IPC is attracted which is punishable up to ten years or fine or with both. It is his further submission that there was no enmity between the accused and the deceased. It is his further submission that overt act alleged against petitioner accused No.1 is only based 9 on circumstantial evidence. With this he prayed to allow the petition.
5. Per contra, the learned HCGP contended that as per voluntary statement of accused No.1, they went for hunting which is illegal. The accused No.1 fired with the gun of accused No.5 on the deceased and deceased died on the spot. Accused Nos.2 to 9 have accompanied accused No.1 for hunting. They brought the dead body and kept under a tree and tried to screen the evidence. It is her further submission that in postmortem report, bullets are found in the body of the deceased and death was due to bullets injury sustained. It is her further submission that if the petitioner-accused Nos.1 to 5 are granted with bail, they will tamper the prosecution witnesses and flee from justice. With this, she prays to reject the bail petition.
6. Having regard to the submission made by the learned counsel for the petitioners-accused Nos.1 to 5 and the learned HCGP, this Court has gone through the charge 10 sheet records. Even according to the accusation made in the charge sheet, accused Nos.1 to 9 and deceased who went for hunting and Bear attacked the deceased, accused No.1 fired gun shot on the Bear to save the deceased but gun shot hit the deceased and he died. On looking to the said accusation, there was no intention on the part of the accused No.1 to kill the deceased Tanaji. The offence alleged under Section 304 of IPC is punishable with imprisonment for 10 years or fine or both. The investigation is completed and charge sheet has been filed and the case of the prosecution is based on the circumstantial evidence. No overt acts are alleged against the accused Nos.2 to 9.
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 11 fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (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 Vs. 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 another matter and does not detract from the fundamental postulate in respect of other offences.12
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 the investigation is completed, charge sheet has been filed and no grounds have been made out by the prosecution to show that custodial interrogation of the petitioners-accused Nos.1 to 5 is necessary. The petitioners-accused Nos.1 to 5 are residing in the address shown in the cause title and it is not disputed. The main objection of the prosecution is that in the event of grant of bail, the petitioners-accused Nos.1 to 5 are likely to cause threat to the complainant and prosecution witnesses. The said objection may be set right by imposing some stringent conditions. 13
10. In the facts and circumstances of the case, this Court is of the considered view that there are valid grounds for grant of bail subject to conditions. Hence, I pass the following.
ORDER The petition filed under Section 439 of Cr.P.C. is allowed.
The petitioners-accused *Nos.1 to 5 shall be released on bail in Crime No.56/2020 of Khanapur Police Station, subject to the following conditions.
i) The petitioners shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) each with one surety for the like sum to the satisfaction of the jurisdictional Court. In view of the Covid-19 petitioners are permitted to furnish surety within two months. If circumstances arise, jurisdictional court is permitted to extend the time for furnishing surety. * Corrected Vide Order dated 01.10.2020 Sd/-
JUDGE 14
ii) The petitioners shall not indulge in tampering the prosecution witnesses in any manner.
iii) The petitioners shall appear before the Court regularly and co-operate in speedy disposal of the case registered against them.
Sd/-
JUDGE Hm b 15 Crl.P.No.100877/2020 SAJ:
01.10.2020 ORDER ON BEING SPOKEN TO Heard the learned counsel for the petitioners on memo for being spoken to.
This petition is filed by five petitioners. The petition filed by all the petitioners came to be allowed. In the operative portion of the order, by typographical error, it is mentioned as petitioners-accused Nos.1 to 3 instead of Petitioners-accused Nos.1 to 5. Hence, the said typographical error requires to be rectified.
Office is directed to correct the said typographical mistake and thereafter issue a fresh certified copy to the counsel for the petitioners.
The learned counsel for the petitioners is directed to surrender the certified copy of the order already obtained.
Sd/-
JUDGE HMB