Karnataka High Court
Sri K.M. Sundara Poojary vs The State Of Karnataka on 26 August, 2014
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.4366 OF 2014
BETWEEN:
SRI. K.M. SUNDARA POOJARY,
S/O LATE MANAPPA,
AGED ABOUT 39 YEARS,
OCC:COOLIE,
R/O NEAR GOVT HIGHER PRIMARY SCHOOL,
NOOJADY VILALGE,
KUNDAPURA.
DIST:UDUPI-576101.
... PETITIONER
(BY SRI. AMRUTH VASANTH JOIS, ADV.,)
AND:
THE STATE OF KARNATAKA,
THROUGH KOLLUR POLICE STATION,
BHYNDOOR CIRCLE,
TAL:KUNDAPURA,
DIST:UDUPI,
REPRESENTED BY SPP,
SPP OFFICE, HIGH COURT COMPLEX,
BANGALORE-560001
... RESPONDENT
(BY SRI.K.NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER
ON BAIL IN S.C.NO.91/13 ON THE FILE OF THE ADDL.
DIST. AND S.J., KUNDAPURA, FOR THE OFFENCES P/U/S
2
302 R/W 34 OF IPC. AND SEC. 3, 5, 25, 27, 30 OF INDIAN
ARMS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER
This is the petition filed by the petitioner - Accused No.1 under Section 439 of Cr.P.C. seeking his release on bail for the offence punishable under Sections 302 read with Section 34 of IPC and also under Sections 3, 5, 25, 27 & 30 of Indian Arms Act registered by the respondent - police in Crime No.63/2013.
2. Heard the arguments of the learned counsel appearing for the petitioner - accused and also learned High Court Government Pleader for the respondent - State.
3. The learned counsel for the petitioner during the course of his arguments made submission that there are no direct witnesses to the alleged incident, the 3 case of the prosecution rests on the circumstantial evidence. He also made the submission that even the gun is also not seized from the possession or house of Accused No.1. According to the prosecution case, it is alleged to have been seized from Accused No.5. Learned counsel made the submission that even the motive is also not established by the prosecution with prima facie material. He made the submission that other accused persons i.e., Accused Nos.2 to 4 were granted bail by the order of this court and Accused No.5 was granted with anticipatory bail. Hence, he submit that by imposing reasonable conditions, the petitioner may be enlarged on bail.
4. As against this, learned High Court Government Pleader during the course of his arguments made the submission that looking to the allegations in the complaint and also the statement of CW-1 to 5 prima facie goes to show and make out a case about, involvement of the present petitioner in the commission 4 of the alleged offence. He submitted that there is seizure of the clothes from the present petitioner said to have been worn by him at the time of committing the offence. Hence, he submitted that the petitioner is not entitled to be granted with bail.
5. I have perused the averments made in the bail petition, FIR, complaint and other materials produced in the case. As per the complaint averments, it is the case of the prosecution that one Sadashiva CW- 4 informed the complainant that on 10.08.2013, at about 11 .00 pm, the deceased went along with the present petitioner and other accused persons holding the gun in their hands for the purpose of hunting. So this is the last seen theory according to the prosecution case. But perusing the statement of CW-4 Sadashiva, he has stated all together different. It is his statement that, his uncle's son Prabhakar Achary who was in the house left the house at 9.00 p.m., on 10.08.2013 for the purpose of hunting which he came to know as informed 5 to him. So this goes against the last seen theory propounded by the prosecution that he has seen the deceased going for hunting along with the petitioner and other accused persons.
6. The learned counsel for the petitioner herein also produced the copy of the bail order passed by this court in respect of Accused No.2. I have perused the said order dated 06.06.2014 passed in Cr. P. No.2318/2014. The court has discussed the entire merits of the case and then granted bail for Accused No.2. As per the story of the prosecution, the motive for the present petitioner to eliminate the deceased is deceased was having illicit connection with one Geetha who is the sister-in-law of Accused No.1. But, investigation material goes to show that the Investigating Officer has not recorded the statement of said Geetha. Therefore looking to all these materials on record and in the absence of the direct witness to the alleged incident, I am of the opinion that the petitioner 6 has made out a case for his release on bail. Now, the investigation of the case is completed and charge sheet has been filed in the matter.
6. Accordingly, petition is allowed. The petitioners - Accused No.1 is ordered to be released on bail for the offences punishable under Sections 302 read with Section 34 of IPC and also under Sections 3, 5, 25, 27 & 30 of Indian Arms Act registered by the respondent - police in Crime No.63/2013, subject to the following conditions:
(i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one solvent surety for the likesum to the satisfaction of the concerned Court;
(ii) The petitioner shall not directly or indirectly tamper with any of the prosecution witnesses;7
(iii) The petitioner shall appear before the concerned Court regularly.
Sd/-
JUDGE snc