Karnataka High Court
Shri Mallikarjun S/O. Shivappa ... vs The State Of Karnataka on 29 March, 2016
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MARCH 2016
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.200398/2016
BETWEEN:
SHRI MALLIKARJUN
S/O SHIVAPPA SHIRAGABARAGA,
(WRONGLY TYPED AS SHIRAGABARAM)
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
R/O JUMANAL,
TQ. AND DIST. VIJAYAPUR.
... PETITIONER
(BY SRI S.S. MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH BIJAPUR RURAL POLICE STATION
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE
HIGH COURT BENCH BUILDING
GULBARGA.
... RESPONDENT
(BY SRI PRAKASH YELI, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO, ENLARGE THE PETITIONER ON BAIL IN
C.C.NO.100/2016 ON THE FILE OF THE LEARNED IV
ADDITIONAL JMFC, VIJAYAPUR, (BIJAPUR RURAL
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P.S.CR.NO.338/2015 REGISTERED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 498(A), 304(B), 302, 316 R/W.
SECTION 34 OF THE IPC & SECTION 3, 4 & 6 OF THE DOWRY
PORHIBITION ACT).
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The Bijapur Rural police have laid a charge-sheet against the petitioner and another for the offences punishable under sections 498-A, 304-B, 302, 316 R/w Section 34 of Indian Penal Code and also under sections 3, 4 and 6 of Dowry Prohibition Act.
2. The deceased by name Shaila D/o complainant by name Ashok was given in marriage to the petitioner who is the resident of Jumnal village within the jurisdiction of Bijapur Rural police. It is alleged that after the marriage the petitioner and his family members started demanding for further dowry and in that context they had been illtreating and 3 harassing the deceased, they were virtually physically assaulting her etc. In this background it is alleged that on 25.10.2015 in the afternoon the petitioner and his mother at about 01.00 p.m. when the deceased was sleeping in the kitchen, they poured kerosene on her and lit fire. Due to which she sustained burn injuries, later succumbed to injuries in the hospital. It is also alleged that at that point of time she was pregnant for 3-4 months. The prosecution mainly relied upon the statement of father of the deceased as well as the dying declarations given by the deceased.
3. On careful perusal of entire charge-sheet papers, at the earliest point of time the deceased had an opportunity to meet her father and she disclosed actually on that day what happened and on the basis of such information the father has lodged the complaint against the petitioner and his mother. In the complaint it is stated that on 25.10.2015 the father of the 4 deceased received telephone call from Jumnal village stating that his daughter has sustained burn injuries and admitted to BLDE hospital. Immediately he went to BLDE hospital along with his brother's son and saw the injured and that she was in talking condition. He enquired her as to what happened on that day. She told that she was sleeping in the kitchen and immediately the bed-sheet caught fire and thereafter she ran outside. Her father-in-law by name Shivappa and others made attempt to extinguish the fire and thereafter admitted her in the hospital. There is nothing in the complaint implicating any of the accused persons. That accused No.2 poured kerosene and accused No.1 lit fire. However, the allegations has been made that due to illtreatment and harassment, she burnt herself and therefore, action should be taken against petitioner and his mother.
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4. During the course of the investigation it appears the Executive Magistrate has recorded the dying declaration. The first one is dated 26.10.2015 recorded by the Special Executive Magistrate, Miraj. On perusal of the said dying declaration, she has categorically stated that, on that particular day while she was cooking suddenly and accidentally her saree caught fire and due to which she sustained burn injuries, thereafter her father-in-law tried to extinguish the fire and thereafter she was admitted to the hospital. She has also stated that she has no complaint against anybody in this regard. Subsequently on 29.10.2015 after three days, one more dying declaration was recorded by same Executive Magistrate, wherein she has implicated the petitioner and his mother specifically stating that on that particular day, she was sleeping in the kitchen, at that time the accused No.2 poured kerosene on her and accused No.1, the present petitioner lit fire. She has also given explanation that 6 after sustaining burn injuries, her husband and mother-in-law have threatened her not to give statement against them. Therefore, she has not given any statement at the earliest point of time.
5. Admittedly there are two dying declarations. One is in favour of accused and another against the accused. Further added to that at the earliest point of time when she met her father she did not complaint anything against the accused persons. Looking to the above said facts and circumstances though there is explanation in the subsequent dying declaration, during the course of the trial, the prosecution has to establish that the second dying declaration is truthful one and it can be reliable. Under the above said facts and circumstances, I am of the opinion that when doubtful circumstances are placed before the Court by prosecution, the petitioner is entitled to be enlarged on bail.
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6. Hence, I pass the following:
ORDER The petition filed under Section 439 of Cr.P.C., is allowed. Consequently, the petitioner shall be released on bail in connection with C.C.No.100/2016 on the file of IV Additional JMFC, Vijayapur, for the offences punishable under Sections 498-A, 304-B, 302, 316 R/w Section 34 of Indian Penal Code and also under sections 3, 4 and 6 of Dowry Prohibition Act, on the following conditions:
i) The petitioners shall execute a personal bond for a sum of `1,00,000/- (Rupees One lakh Only) each with two solvent sureties for the like sum to the satisfaction of the Trial Court or the Committal Court, as the case may be.
ii) The petitioners shall not indulge in tampering the prosecution witnesses.
iii) The petitioners shall appear before the Committal Court as well as the Trial 8 Court on all future dates of hearing unless prevented by any genuine cause.
iv) The petitioners shall not leave the jurisdiction of the Trial Court without its prior permission, till the disposal of the case registered against him.
Sd/-
JUDGE *MK