Karnataka High Court
Sri Umesh S/O Ramesh Kamble vs The State Of Karnataka on 26 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102388 OF 2022
C/W
CRIMINAL PETITION NO. 102683 OF 2022
IN CRIMINAL PETITION NO. 102388 OF 2022
BETWEEN:
SRI UMESH S/O RAMESH KAMBLE,
AGE:35 YEARS, OCC: BUSINESS,
R/O GO-RAKSHN MAL,
NEAR MAHAVEER HOTEL,
BESIDES KEB SANKESHWAR,
TQ: HUKKERI, DIST: BELAGAVI-591313.
...PETITIONER
(BY SHRI GANAPATI M. BHAT, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
ITS POLICE INSPECTOR,
SANKESHWAR POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-011.
...RESPONDENT
(BY SHRI PRASHANTH V.MOGALI, ADVOCATE)
***
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C, SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.1 ON
BAIL IN CRIME NO.7/2022 OF SANKESHWAR POLICE STATION
REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
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CRL.P No. 102388 of 2022
C/W CRL.P No. 102683 of 2022
302, 451, 120B R/W SEC.34 OF IPC AND R/W RULE 3 R/W 25(1B) A,
OF INDIAN ARMS ACT, IN THE INTEREST OF JUSTICE AND EQUITY.
IN CRIMINAL PETITION NO. 102383 OF 2022
BETWEEN:
SHRI AKHILESH @ LIMBYA
S/O. MAHESH DARURMATH,
AGE: 27 YEARS, OCC: PLOT NO.22,
TARA NIVAS, MARKET ROAD, SANGLI,
(MAHARASTRA)- 416406.
...PETITIONER
(BY SHRI MAHANTESH S. HIREMATH., ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD
(THROUGH SANKESHWARA POLICE STATION
VIDE CRIME NO.7/2022)
...RESPONDENT
(BY SHRI PRASHANT V.MOGALI., HCGP)
***
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C, SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.2 ON
BAIL IN CRIME NO.7/2022 OF SANKESHWAR POLICE STATION
REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
302, 451, 120B R/W SEC.34 OF IPC AND R/W RULE 3 R/W 25(1B) A,
OF INDIAN ARMS ACT, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 102388 of 2022
C/W CRL.P No. 102683 of 2022
ORDER
The Criminal Petition No.102388/2022 is filed by accused No.1 and Criminal Petition No.102683/2022 is filed by accused No.2. Both the petitions are filed under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) seeking bail in crime No.7/2022 of Sankeshwar Police Station registered for the offences punishable under Sections 120(B), 451 and 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity) and Section 3 read with Section 25(1B) (a) of Indian Arms Act, 1959.
2. The case of the prosecution is that, one Shivanand Kempanaik Sangnaik of Savadatti has filed complaint stating that one Smt. Shailaja Niranjan Subedhar is his distinct relative as aunty and she lost her husband 15 years back and she has no children and hence, she is residing alone at Badakundi of Hukkeri taluk. -4- CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 He will assist her whenever she called due to her alone living. She for her livelihood, has been doing money business with known persons and on 10.01.2022, she was at her home, she called him and informed him that one Ravi Rathod of Gadahinglaz took Rs.20,00,000/- from her and he will return that amount in this week and hence, she kept the complainant with her for safer side. Earlier to 2-3 days from the date of filing of complaint, his brother Doddagouda Kempanaik Sangnaik also came and joined them and hence, both of them are sleeping in shop at night, which situated at ground floor of her house. On the previous night, all the three at about 8:30 p.m had dinner at the house of the deceased at first floor and slept at ground floor shop. The deceased was slept alone at her house. In the morning at about 4:45 a.m on 16.01.2022, she called his brother and informed him not to come to her house since one person is coming to her house to return money and he may not give money if he see any other person and if he is called her to difference place, she will -5- CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 inform them for accompanying her. Therefore, they kept quite and due to no call from their aunty for long gap and she was alone at house, his brother made a phone call to her at 7:30 a.m, but she did not pick the phone and hence, by using upstairs, when he rushed to her house, he saw her dead body fallen facing down and immediately his brother also joined him and both saw bullet near the spot and live bullet in bucket. Immediately they told relatives and informed the death of their aunty. It is stated that some unknown persons for unknown reason murdered his aunty in between 5:45 a.m and 8:00 a.m, by using pistol. The said complaint came to be registered in Crime No.7/2022 of Sankeshwar Police Station for the offences punishable under Sections 451, 302 of IPC and Section 25(1B) (a) of the Indian Arms Act, 1959 against unknown persons. On 19.01.2022, the police arrested the petitioner/accused No.1 and he is in judicial custody. The petitioner is arrayed as accused No.1. The police recorded his voluntary statement and arrested one Akilesh @ -6- CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 Limbya Mahesh Daroormath of Sangli and arrayed him as accused No.2 and one Rahul S/o Raju @ Raju Singh Rajapooth of Sangli and arrayed him as accused No.3 and further shown one Ajay Sarawa of Madhya Pradesh State as accused No.4. After completing investigation, the investigating officer filed charge-sheet against accused Nos.1 to 4 for the offences punishable under Sections 120(B), 451 and 302 read with Section 34 of IPC and Section 3 read with Section 25(1B) (a) of Indian Arms Act, 1959. The petitioner/accused No.1 filed Criminal Miscellaneous No.5444/2022 seeking bail and the same came to be rejected by VII Additional District and Sessions Judge, Belagavi, Sitting at Chikkodi vide order dated 21.07.2022. Therefore, the petitioner/accused No.1 is before this Court seeking bail. The petitioner/accused No.2 filed Criminal Miscellaneous No.5558/2022 seeking bail and the same came to be rejected by VII Additional District and Sessions Judge, Belagavi, Sitting at Chikkodi -7- CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 vide order dated 05.09.2022. Therefore, the petitioner/accused No.2 is before this Court seeking bail.
3. Heard the arguments of learned counsel appearing for the petitioners/accused Nos.1, 2 and learned High Court Government Pleader for the respondent/State.
4. Learned counsel for petitioner in Criminal Petition No.102388/2022 (accused No.1) would contend that, there are no eye witnesses to the incident. There are no last seen theory and the petitioner/accused No.1 came to be arrested after 4 days of the incident and his voluntary statement has been recorded. The fingerprint experts were secured to the spot but, they did not get any fingerprint and dogs squad also visited to the spot but, did not find any clue. There are no documents regarding money lending by the deceased to the petitioner/accused No.1. The CCTV footages does not tally with the alleged timings of the crime. The experts who examined the cartridge has not given any opinion regarding date and -8- CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 time of use. It is his further submission that the complainant and his brother were sleeping in the ground floor of the shop but, they could not hear any sound of firing the pistol and the complainant in his further statement has stated due to sound of lorry, they were unable to hear the sound of firing. It is his further submission that as the charge-sheet is filed, the petitioner/accused No.1 is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Learned counsel for the petitioner in Criminal Petition No.102683/2022 (accused No.2) would contend that, no overtact is alleged against this petitioner/accused No.2 in the complaint. The case is based on circumstantial evidence. The money transaction is between accused No.1 and the deceased. This petitioner/accused No.2 is alleged to have acted as a mediator between accused Nos.1 and 4 to secure the pistol. The petitioner-accused No.2 was not present in the spot at the time of incident and he has been -9- CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 implicated only on the basis of voluntary statement of accused No.1. There is no recovery at the instance of petitioner/accused No.2. It is his further submission that charge-sheet is filed, therefore, the petitioner/accused No.2 is not required for custodial interrogation. Learned counsel for the petitioner/accused No.2 relied on the decision of Hon'ble Apex Court in the case of Lt.Col. Prasad Purohit Vs State of Maharashtra reported in [2017] ACR 937 and contends that though at the stage of granting bail a detailed examination of evidence and elaborate documentation of merit of case need not be undertaken, there is a need to indicate in such orders reasons for prima-facie including why bail was being granted particularly where accused is charged of having committed a serious offence. He further placed reliance on the decision of this Court in the case of Ajjappa Vs State of Karnataka reported in 2018 (1) KCCR 318 and would contend that the allegation of illicit connections and both have committed murder is a matter of trial. Since,
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CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 investigation is completed and charge-sheet is filed, accused is required to be granted bail with conditions.
6. Per contra, learned High Court Government Pleader would contend that, the offences alleged against these petitioners/accused Nos.1 and 2 are heinous offences punishable with death or imprisonment for life. The voluntary statement of accused No.1 clearly reveal his involvement in commission of the murder of deceased and also involvement of accused Nos.2 and 3 in securing the country made pistol from accused No.4 at Gwalior. The pistol is recovered at the instance of accused No.1 from his house and so also the mobile phone used by the accused No.1 to make a call to the deceased. The empty cartridges and unused cartridge found on the spot at the time of Mahazar have been sent to expert for examination so also, the mobile seized at the instance of accused No.1. The expert has opined that the said pistol is in using condition and the used cartridges found on the spot were
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CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 fired from the said pistol. It is his further submission that the call details of the mobile phone of accused No.1 have been secured wherein, there are calls between accused No.1 and the deceased on the date of incident and also the previous date. It is his further submission that the call details of the mobile phone of accused No.1 also reveal that he contacted accused Nos.2 and 3 for securing the pistol. It is his further submission that the charge-sheet material shows prima-facie case against the petitioners- accused Nos.1 and 2 for the offences alleged against them. If the petitioners/accused Nos.1 and 2 are granted bail, there are chances of they threatening the complainant and other prosecution witnesses and flee from justice. It is his further submission that bail petition of accused No.3 who is similarly placed to that of the petitioner/accused No.2, has been rejected by this Court. With this, he prayed to reject the petitions.
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CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022
7. Having regard to the submissions made by learned counsel for the petitioners/accused Nos.1, 2 and learned High Court Government Pleader for respondent/State, this Court has gone through the charge- sheet material.
8. As per the charge-sheet papers, the petitioner/accused No.1 had borrowed Rs.25,00,000/- from the deceased. The deceased was insisting accused No.1 for repayment of the said amount borrowed and she has insulted him asking repayment and abusing him in public place. Therefore, he was having grudge against the deceased. The call detail record of the mobile phone of accused No.1, which is recovered at his instance reveal that on the date of incident and also on the previous date, there were several calls between accused No.1 and the deceased. The CCTV footages of the shop in the road near the house of deceased reveal the movement of the petitioner on the date of incident. The pistol has been
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CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 recovered at the instance of the petitioner/accused No.1 from his house. The used and live cartridge found on the spot were sent to the expert along with pistol for examination. The expert opined that the said pistol is a country made pistol and it is in working condition and the empty cartridges were fired from the said pistol. All these circumstances along with other charge-sheet material show prima-facie case against the petitioner/accused No.1 for the offences alleged against him. Therefore, the petitioner/accused No.1 is not entitled for grant of bail.
9. The accusation against the petitioner/accused No.2 is that he introduced accused No.3 to accused No.1 and all accused Nos.1 to 3 went to Gwalior for purchasing unlicensed country made pistol for the purpose of committing murder of Smt. Shailaja. They purchased the country made pistol from accused No.4 for Rs.30,000/-. Accused No.1 used the said pistol, secured with the assistance of accused Nos.2 and 3 from accused No.4 and
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CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 committed murder of deceased Shailaja. Therefore, the contention of the learned counsel for the petitioner that accused No.2 has no role in committing murder of deceased, cannot be accepted. Accused Nos.2 and 3 took accused No.1 to Gwalior and they were successful in purchasing country made gun by paying Rs.30,000/- from accused No.4. Accused No.4 is still absconding. The police is unable to arrest accused No.4. The petitioner/accused No.2 is the main cause for purchasing country made pistol by accused No.1. The petitioner/accused No.2 is resident of Sangli, Maharastra State, if the petitioner/accused No.2 is released on bail, there is every possibility of absconding and fleeing from justice is not ruled out. Apart from that, he may give suggestions to other accused also for purchasing gun or taking revenge by accused persons who wants to commit murder, they may approach this petitioner/accused No.2 for purchasing the gun i.e, country made pistol. The bail petition filed by accused No.3 who is similarly placed to that of this
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CRL.P No. 102388 of 2022 C/W CRL.P No. 102683 of 2022 petitioner/accused No.2 has been rejected by this Court in Criminal Petition No.101864/2022 by order dated 13.07.2022. If the petitioners/accused No.1 and 2 are granted bail, there are chances of they threatening the complainant and other prosecution witnesses. On perusal of the entire charge-sheet material, there is prima-facie case against the petitioners/accused Nos.1 and 2 for the offences alleged against them. The petitioners/accused Nos.1 and 2 have not made out any ground for grant of bail.
10. Hence, both the Criminal Petitions are dismissed.
SD/-
JUDGE AM