Karnataka High Court
Gadigeyya S/O Basalingayya Hiremath vs State Of Karnataka on 1 September, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 s t DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100948/2020
BETWEEN:
GADIGEYYA
S/O BASA LINGAYYA HIREMATH
AGED ABOUT: 45 YEARS,
OCC: COOLI E, R/O: BENCHI HALLI ,
TQ & DIST: HAVERI.
...PETITIONER
(BY SRI.ARAVIND D. KULKARNI, ADV OCATE)
AND:
STATE OF KARNATAKA
THROUGH HAV ERI RURAL POLICE ST ATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF K ARNATAKA,
HIGH COURT BUILDING, D HARWAD.
... RES PONDENT
(BY SRI. RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.439 OF
CR.P.C., PRAYING TO ALLOW T HE PETITION AN D
ENLARGE THE PETITIONER ON BAIL IN HAVERI RURAL
POLI CE STA TION CRIME NO.17/ 2020
(C.C.NO.339/ 2020 PENDING ON THE FILE OF CIVI L
JUDGE AND JMF C, HAV ERI) REGI STERED FOR THE
OFFENCES PUNIS HABLE UND ER S ECTION 326, 302,
504 & 506 OF I PC.
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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.17/2020 of Haveri Rural Police Station registered for the offences punishable under Sections 326, 302, 504 and 506 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity).
2. The case of the prosecution is that one Santosh Irayya Hiremath has filed a complaint on 04.02.2020 alleging that he is residing with his father- Irayya, mother-Drakshyani and wife-Rekha and leading their family by doing coolie work. It is further alleged that his father has two brothers and two sisters. Among the said brothers, Uncle Kumarswamy is residing in 3 Hombali village, tq. Hangal and the other Uncle is residing in Sirsi. All the brothers and sisters of the complainant's father are married and sisters are residing in their respective matrimonial home. It is further alleged that they are having an ancestral vacant site situated near Udachamma temple and insofar as this property is concerned there is no partition. Insofar as the said property is concerned, the petitioner Gadagayya was claiming that it belongs to him and that the deceased i.e., the father of the complainant has no interest in the said property. It is further alleged that on 04.02.2020 at about 9.00 am, the petitioner/accused was cleaning the said vacant site with the help of JCB, and, at that time, Irayya-deceased raised objection and there was verbal quarrel and the petitioner started to abuse the complainant's father in filthy language and threatened him. Even at the same time, the petitioner picked up a wet club and assaulted Irayya on his head and other parts of the body. It is also alleged that 4 Irayya became unconscious and was shifted to District Hospital, Haveri, and for further treatment referred to KIMS, Hubli. The said complaint has been registered in Crime No.17/2020 for the offences punishable under Sections 326, 307, 504 and 506 of IPC. The petitioner came to be arrested on 04.02.2020. During treatment in KIMS hospital-Irayya died on 15.02.2020. The Investigating Officer filed a memo requesting to add Section 302 of IPC. The Investigating Officer filed charge sheet for the offences under Sections 326, 302, 504 and 506 of IPC. The petitioner filed bail application in Crl.Misc. No.29/2020 and the same came to be rejected by order dated 11.06.2020. Therefore, the petitioner is before this Court seeking bail.
3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
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4. It is the contention of the learned counsel for the petitioner that the incident has taken place on 04.02.2020 and Irayya died on 15.02.2020 and he was alive for 11 days and no dying declaration of Irayya was recorded. It is his further submission that investigation is over and charge sheet has been filed and the petitioner is not required for any custodial interrogation. It is his further submission that the two witnesses, who have been named in the complaint, have stated in their statements that the petitioner/accused assaulted on the head of the deceased and also on shoulder and leg and that there are no corresponding injuries on the shoulder and leg of the deceased. It is his further submission that in the charge sheet, the Investigating Officer has cited six eyewitnesses but only names of two persons have been mentioned in the complaint. It is his further submission that there is no pre-meditation for committing the offence since the deceased has come to the place of the accused and there is only one injury on 6 the head of the deceased. It is his further submission that the petitioner is having, wife and 3 children and he is the only earning member of the family. The petitioner has placed reliance on the following decisions:
a. a. Sita Ram v. State (NCT of Delhi) reported in (2019) 7 SCC 531 b. b. Dataram Singh v. State of Uttara Pradesh and Another reported in (2018) 3 SCC 22 c. c. Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40 It is his further submission that the case is at the stage of committal and pending before the JMFC, Haveri, and there is delay in conclusion of the trial and therefore, the petitioner is entitled to grant of bail on that ground also. With these, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader has contended that the petitioner/accused has assaulted the deceased on the head and in the postmortem report, it is opined that the death of Irayya is due to head injury. It is his further submission that 7 there are six eyewitnesses. It is his further submission that there is a prima facie case against the petitioner for the offences alleged against him. It is his further submission that if the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, he prayed to dismiss the petition.
6. In the case of Sita Ram v. State (NCT of Delhi) reported in (2019) 7 SCC 531, the Hon'ble Apex Court has observed as under:
" 10. In order to attract Exception 4 to Section 300 IPC the following ingredients have to be established:
(i) The Crime must be committed without
premeditation;
(ii) It must be committed in a sudden fight in
the heat of passion upon a sudden
quarrel;
(iii) The offender should not have taken
undue advantage;
(iv) The offender should not have acted in a
cruel or unusual manner.
11. As discussed earlier the occurrence was without premeditation and sudden fight between the parties started in the heat of passion upon a sudden quarrel.8
The occurrence happened when deceased Mangal Singh on his way back home questioned Girdhari (A-1) as to his conduct of tapping electricity from the pole. The appellant Sita Ram (A-2) was not pre-armed and the other accused were also not pre-armed. Though, deceased Mangal Singh has sustained as many as nine injuries, except injuries 1 to 3 which are the injuries caused on the head, all other injuries are on the hand, shoulder, arms etc."
In the case of Dataram Singh v. State of Uttara Pradesh and Another reported in (2018) 3 SCC 22 the Hon'ble Apex Court has 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. 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 9 periods. This does not do any good to our criminal jurisprudence or to our society."
In Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40, the Hon'ble Apex Court has held as under:
" 21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity", is the operative test. In this Country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any 10 circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the 11 constitutional rights but rather "recalibrating the scales of justice".
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual."
7. As per the averments in the complaint, there was a property dispute between the deceased and the petitioner/accused. On 04.02.2020 at about 9.00 am the petitioner was cleaning the said property with the help of JCB and at that time, the deceased-Irappa raised objection and a quarrel took place and the petitioner abused the deceased and assaulted him with 12 club on his head and other parts of the body. The said incident was witnesses by the complainant, who is the son of the deceased, and also by two persons named in the complaint i.e. Yallappa Puttappa Allapur-CW-6 and Chandrappa Guddappa Sannappanavar-CW-7. The said CWs.6 and 7 in their statements have specifically stated that the petitioner abused the deceased and took club and assaulted on the head of the deceased-Irappa and when he fell down, he again assaulted with club on shoulder and legs of the deceased. In the postmortem report, only one injury has been noted i.e. abrasion measuring 8cm x 2cm over middle of occipital area. In the postmortem report, the cause of death is stated as "death is due to respiratory failure as a result of the head injury sustained."
8. Merely because the deceased has not sustained any injury on his shoulder and legs, on that account, the statement of CWs.6 and 7 cannot be 13 discarded. Not only CWs.6 and 7 but there are other eyewitnesses who have stated regarding the assault made by the accused on the head of the deceased. The petitioner is the brother of the deceased. There is a close relationship between the petitioner and the complainant, who is the son of the deceased. If the petitioner is granted bail, there are chances of his tampering the prosecution witnesses.
9. On looking to the entire charge sheet papers, there is prima facie case against the petitioner/accused for the offences alleged. The petitioner/accused has not made out any grounds for grant of bail.
Hence, the petition is dismissed.
Sd/-
JUDGE kmv