Karnataka High Court
Bhimanagouda S/O Shenkreppa vs The State Of Karnataka on 30 January, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 30TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.16057/2012
BETWEEN:
Bhimanagouda S/o Shankreppa
@ Shivashankreppa Chattarki,
Age: 28 Years, Occ: Agriculture,
R/o: Kerutagi, Taluk: Sindagi. ... PETITIONER
(By Shri. Ishwar Raj.S.Chowdapur, Advocate)
AND:
The State of Karnataka
(Through Kalakeri Police Station)
Represented by
Additional State Public Prosecutor,
Circuit Bench,
Gulbarga. ... RESPONDENT
(By Shri S.S.Aspalli, Government Pleader)
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This Criminal Petition is filed under Section 439 of
Criminal Procedure Code by the advocate for the petitioner
praying that this Court to enlarge the petitioner on bail in Crime
No.30/2011 of Kalkeri police station (C.C.No.201/2011 JMFC.,
Sindagi), which is registered for the offence punishable under
Sections 143, 147, 148, 504, 302, 447 read with 149 of Indian
Penal Code.
This petition coming on for Orders this day, the Court
made the following:
ORDER
Heard the learned counsel for the petitioner and the learned Government Pleader.
2. The petitioner is before this court on rejection of his bail petition by the trial court. The facts leading up to this petition are as here under:
It transpires that there was a boundary dispute in respect of the petitioner's land and the land of one Basannagouda Chattarki. It was alleged that the present petitioner had encroached the land of Chattarki and in this regard there was panchayat held in the village and it was decided that the 3 petitioner should remove the bund which had been constructed by about 18 guntas into his land. This decision had created bitterness according to the prosecution between the petitioner and Chattarki. On 23.04.2011, a quarrel had erupted between the Balappagouda and Shankreppagouda who are sons of the Basannagouda Chattarki. On 24.4.2011, it transpires that the petitioner went to his land so also Balappa had gone to his land. Balappa then had informed the complainant namely the mother of the deceased Balappagouda, Bhimangouda and others were quarreling. Therefore she must rushed to the spot, as they needed help to resist the attack by Balappagouda and others. Thereafter the complainant Mallamma along with her husband Basanagouda, Basayya and others rushed to the spot, which was about two kilometers away from their houses. It is alleged that they came to the spot and the complainant saw the petitioner assaulting Balappagouda with Jambay on his head and other accused assaulted Balappagouda and Bhimangouda who succumb to the injuries while being shifted to the hospital. 4
3. Thereafter on the basis of the complaint a case was registered against 13 accused. In the course of time the investigation officer has thought it fit to deleted accused No.7 Ayyappa, Accused No.12 Sangamma and accused No.13 Shobha from the chargesheet as no prima facie could be made out against the case is at a stage where the magistrate is to commit same to the Sessions court for trial court having regard to the offences alleged. The several of the accused had approached this court and have been granted bail. The present petitioner's bail petition has been rejected on the ground that the allegation against the petitioner is that he had assaulted the deceased with the Jambay and since, the complainant is categorical, in this regard an eyewitness. The deceased having suffered multiple injuries. The petitioner has been held responsible for causing the death since he was using deadly weapons in the assault and therefore the petition has been rejected.
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4. The learned counsel for the petitioner would submit that the very case of the complainant is difficult to accept. Admittedly, the complainant was informed telephonically of a fight or a quarrel and an attack taking place at their land and that she had sought the assistance of others including her husband and had rushed to the spot which was two kilometres away. If this indeed was the circumstance for the prosecution to establish that the attack continued for over 20 to 30 minutes, as it would take not less than 20 minutes for a person moving briskly or even jogging, to cover two kilometres. Therefore the further circumstance that the complainant had originally stated as to the overt act attributed to the petitioner has thought that she saw the petitioner attack the deceased with a stick. The complaint has been subsequently altered to strike out the word "stick" and incorporate "jambay". This clearly was an interpolation merely to implicate the petitioner and to ensure that he was accused of a more grievous act. It is also pointed out that a jambay is a curved dagger and any injury caused with 6 the same would result in a punctured wound. The deceased had died as a result of head injuries and a punctured wound to his elbow there are no other wounds on any vital parts of the bodies except on his head. If indeed the petitioner was wielding a jambay and had inflicted a wound to the elbow it would not have resulted in the death of the deceased. The death has occasioned on account other wounds to other parts of his body, possibly caused by other weapons and not with a Jambay as evident from the medical report.
5. The learned counsel would submit that the accused being a large number of persons and given the sequence of events it is highly doubtful that the complainant had witnessed any such attack and it is doubtful as to which of the accused had used what weapon and whether the accused were even present at the spot. Therefore, the prosecution would have to establish its case beyond all reasonable doubt in order to bring home the charges and the court having opined that the charges against the 7 other accused would necessarily have to be proved at the trial and having granted them bail, by a parity of reasoning, the petitioner is also entitled to bail.
6. The learned Government Pleader would vehemently oppose the bail petition and would submit that the court below has considered the case of the petitioner not once but twice and having regard to the grievous nature of injuries suffered by the deceased and the eyewitnesses account of the petitioner's participation and the allegation that he was using a deadly weapon has persuaded the court below to take a strong view against the petitioner's conduct. Therefore, he would submit that the arguments of the counsel for the petitioner that the sequence of events were not clear and that it was not possible for the quarrel to have continued for while and that the complainant could not have witnessed the incident is not an acceptable argument such a prolonged quarrel and final attack after that point of time is not impossible and the complaint 8 could not be negated as there can be no denial that there are two deaths have occasioned as a result of the incident. The contention that the weapon alighted to have been used by the petitioner was a curved deadly weapon and therefore, injuries caused by a such weapon could only be punctured wounds is not entively correct. The same can also be used to slash the victim's body, apart from causing stab wounds and hence the use of the weapon in causing the death need for necessarily by punctured wounds. Therefore, the court below has rightly rejected the bail petition and it does not warrant interference.
7. Given the above rival contentions it is not denied that several accused persons have been enlarged on bail. Unless there was cogency in the sequence of events, it cannot be said with certainity that the petitioner had indeed used a jambay to attack the deceased. It is only the say of the complainant. The complainant also having made allegations against several other accused, the investigating officer has thought it fit to drop the 9 said accused from the case. This would indicate that the account of the complainant was not accurate. It is also possible that by the time the complainant and others had arrived on the scene the attack had already been accomplished and it is possible that the accused including the petitioner have been implicated without the complainant having witnessed the entire scene. If there were 13 accused persons attacking the deceased it is difficult for any person, including the complainant, to recount the same with graphic detail as to which accused used what weapon and attacked the deceased on which part of his body.
8. Therefore by a parity of reasoning in enlarging the several accused on bail the present petitioner is also entitled to be enlarged on bail. Notwithstanding the serious allegation that he had used a jambay in causing the injuries to the deceased this would, however, have to be established by the prosecution at the trial beyond all reasonable doubt. Hence, the petitioner shall be enlarged on bail, subject to the following conditions: 10
i. The petitioner shall furnish a self-bond for a sum of `30,000/- with solvent surety for a like sum, to the satisfaction of the trial court.
ii. The petitioner shall not leave the jurisdiction of the Court below, without the leave of the court. iii. He shall not in any manner, seek to tamper with the prosecution evidence.
iv. The petitioner shall attend the court below on all dates of hearing in the proceedings that would ensue.
Sd/-
JUDGE msr