Karnataka High Court
Sri.Father Elias Daniel vs State Of Karnataka on 24 March, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRL. PETITION NO. 355/2015
C/W
CRL. PETITION NO. 509/2015
CRL. PETITION NO. 510/2015
IN CRL. PETITION NO. 355/2015
BETWEEN:
SRI.FATHER ELIAS DANIEL
S/O LATE SUSAINATHAN,
AGED 44 YEARS,
R/AT NAVACHETANA,
C/O ARJUN GUTTEDAR,
KASTURI, BEHIND PETROL BUNK,
ALANDA, GULBARGA-585101.
... PETITIONER
(By SMT: PRAMILA NESARGI, SR. COUNSEL FOR
Sri: SHIVA SHANKAR C, ADV.)
AND:
STATE OF KARNATAKA
BY YESWANTAPUR P.S.
YESWANTHAPURA, BANGALORE-22
REP BY LEARNED SEPCIAL PROSECUTOR,
HIGH COURT,
BANGALORE-560022.
... RESPONDENT
2
(By Sri: SADASHIVA MURTHY, SPL PP)
CRL.P FILED U/S.439 CR.P.C BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO ENLARGE THE PETITIONER ON
BAIL IN CRIME NO.157/2013 OF YESHWANTHAPURA
POLICE STATION, BANGALORE, FOR THE OFFENCES
P/U/S 302,201,149,120b OF IPC, PENDING IN S.C.NO.1439/2014
ON THLE FILE OF PRL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY AND ETC.
IN CRL. PETITION NO. 509/2015
BETWEEN:
FATHER WILLIAM PATRICK
S/O THOMAS,
AGED 45 YEARS,
R/AT ASISIYA SAINT FRANCIS CHURCH
KENGERI UPANAGARA
BANGALORE-562117.
... PETITIONER
(By Sri: HANUMANTHARAYA C H, ADV.)
AND:
STATE OF KARNATAKA
BY YESHWANTPUR P.S.
REP. BY LEARNED SPECIAL PROSECUTOR
HIGH COURT, BANGALORE-560001.
... RESPONDENT
3
(By Sri: SADASHIVA MURTHY SPL PP)
CRL.P FILED U/S.439 CR.P.C BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO ENLARGE THE PETITIONER ON
BAIL IN CRIME NO.157/2013 OF YASHAWANTHAPURA
POLICE STATION, BANGALORE, FOR THE OFFENCES
P/U/S 302, 201 OF IPC, PENDING ON THE FILE OF THE
PRL.CITY CIVIL AND SESSIONS COURT, BANGALORE
METROPOLITAN CITY AND ETC AND ETC.
IN CRL. PETITION NO. 510/2015
BETWEEN:
CARMEL PETER @ PETER
S/O LOUIS,
AGED 22 YEARS,
TATUGUPPE MARIYAPURA VILLAGE,
KAGALIPURA POST, KANAKAPURA ROAD,
BANGALORE-562117.
... PETITIONER
(By Sri: SHYAM SUNDAR M S, ADV.)
AND:
STATE OF KARNATAKA
BY YESHWANTPURA P.S,
REP. BY LEARNED SPECIAL PROSECUTOR,
HIGH COURT, BANGALORE-560001.
... RESPONDENT
(By Sri: SADASHIVA MURTHY SPL PP)
4
CRL.P FILED U/S.439 CR.P.C BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO ENLARGE THE PETITIONER ON
BAIL IN CRIME NO.157/2013 OF YASHAWANTHAPURA
POLICE STATION, BANGALORE, FOR THE OFFENCES
P/U/S 302 R/W 201 OF IPC, PENDING ON THE FILE OF THE
PRL.CITY CIVIL AND SESSIONS COURT, BANGALORE
METROPOLITAN CITY AND ETC.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS, THIS DAY
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
COMMON ORDER
The petitioners in all these petitions are accused in Crime No.157/2013 registered by Yeshwanthpur Police Station, Bengaluru City. After concluding investigation, police have filed charge sheet for offences punishable under Sections 302, 201, 120B of IPC read with Section 149 of IPC against five persons. All these petitioners are in judicial custody. Hence, separate applications have been filed under Section 439 of Cr.P.C. seeking regular bail.
2. Learned Special Public Prosecutor Sri.Sadashiva Murthy has filed detailed common objections to the bail applications. 5
3. Petitioner in Crl.P.355/2015 is accused No.1. Petitioners in connected criminal petitions in Crl.P.509/15 and 510/2015 are accused Nos.2 and 3 respectively in the said case. The case on hand relates to the murder of Mr.K.J.Thomas, Rector of St.Peters Pontifical seminary at No.8, Malleshwaram West, Yeshwanthpur, Bengaluru.
4. The facts leading to the registration of Crime No.157/2013 by Yeshwanthpur Police and consequent arrest of these petitioners and filing of final report in the form of charge sheet in terms of Section 173(8) of Cr.P.C. are as follows:
a) St.Peter's Pontifical Seminary is situated in No.8, Malleshwaram West, within the jurisdiction of the Yeshwanthpur Police Station limits. The total area of the seminary in 24.08 acres in Survey.No.4 and the same was granted by the then His Highness Maharaja of Mysore in 1929 at a price of Rs.400/- per acre vide order No.5/LR611-28-4 dated 19/7/1929. The above seminary is governed by the Board of Bishops consisting of 17 6 Bishops, 10 from Karnataka State and 7 from Tamilnadu. The Archbishop of Bangalore is the Chairman and Chancellor of the Board of Administration of the seminary. The Board of Administration appoints the office bearers such as rector, presivear, procurator, administrator and others with the approval of the authorities in Rome.
b) First informant Fr.Patrick Xavier is the procurator of the seminary. Deceased Fr.Thomas K.J. was the Rector of the Seminary. The Rector was the Chief of the Seminary and had his office along with the bedroom. In the next room abutting the room of the deceased, is the office-cum-bedroom of the first informant in the main block of the Seminary. Office staff work during day time only. Two watchmen had been appointed to guard the building throughout the day, i.e. one during the day and another during night time.
c) At about 7.30 p.m. the first informant, deceased Rector K.J.Thomas and Fr.G.Joseph had their supper in the old building 7 and were there upto 9.00 p.m. on that night. After the supper both the procurator and the Rector went to their respective rooms to sleep. At about 2.30 a.m. in the early morning on 1.4.2013, the procurator i.e., first informant heard some screaming outside his office and they even tried to break open his office door. As it was raining at that time, he thought that some miscreants might have come for extortion. He did not open the door. At about 5.00 a.m. he got up and came to his office. Then he found that the door had been damaged. He then came outside the office and saw blood stains in front of the staff room as well as on the tar road. There were some foot marks on the area where the blood had spilled. He could notice some signs of dragging towards the staff room. Inside the staff room, first informant saw the dead body of the Rector Fr.Thomas K.J. in a semi-nude state with blood stains on the face and his head. Then he came to the office of the rector and saw that the almirahs were safe; but locker had been opened and documents had been ransacked. Suspecting that some criminals had illegally trespassed into the seminary and 8 killed the Rector, he chose to lodge the first information in his own handwriting in English to the Yeshwanthpur police at about 8.30 a.m. at the spot on 1.4.2013, on the basis of which a case came to be recorded against unknown persons for offences punishable under Section 302 & 201 of IPC in Crime NO.157/2013.
d) Soon after registration of the case, an inquest was done at the spot between 12.00 noon and 3.00 p.m. on 1.4.2013. Column No.XXVII of the inquest discloses that same unknown persons had murdered by assaulting with weapon on the head of the deceased and by strangulating the neck. Blood stains, mud, hair which had stuck to the white gown, one blood stained gown and blood found on the stone pillar, blood stains found on the footpath, blood stains from the dead body, blood stains from the corridor, a padlock and door lock piece and two black chappals were seized in the presence of Panchas and entered in P.F. No.46/2013. A detailed spot panchanama was drawn at the spot 9 between 9.30 and 11.50 a.m. i.e., prior to drawing inquest of the dead body.
e) Then the dead body was sent to M.S.Ramaiah Medical College for conducting autopsy. The doctor noticed as many as 13 injuries on different parts of the body. After conducting autopsy between 3.15 p.m. and 5.20 p.m. Doctor Girish Chandra, Professor and HOD, Forensic Medicine Wing of the hospital has opined that death was due to shock and hemorrhage as a result of the injuries to the chest. This opinion was the provisional opinion. Even after the receipt of viscera report and FSL report, the same opinion was reiterate by the said doctor.
f) On 1.4.2013, statement of Fr. Joseph Francis CW-12 was recorded. According to him, he had been to the house of Mr.Simon of Rajajinagar area, Bangalore on the night of 31.3.2013 in the car sent by Simon and returned to the seminary at about 10.00 p.m. along with Fr.Sebastian and at that time, security guard Maan Singh was present at the main gate of the seminary. He went to the bed in room No.14 in the New Block of the Seminary 10 and morning he found the dead body of Rector Fr.K.J.Hoseph. According to him, on several occasions the members of "Karnataka Kannada Chitra Dharma Gurugala Balaga" and Akhila Karnataka Catholic Chitrara Kannada Sanga had entered the Seminary and were demanding to handover the Seminary to them and to declare that it belongs to Kannadiga Christians only.
g) On 2.4.2013, a detailed statement of one Roland Babu, an employee in the Seminary was recorded, According to to him on 22.2.2013 Mr.Rafel Raj, Mr.Perara and about 300 others had come near the seminary and raised slogans against the authorities of the Seminary and this was done, according to him, when a meeting of the Board of Bishops was going on. They had threatened that if the Seminary was not handed over to them within June, there would be blood shed. Then they met the Archbishop and then all of them dispersed. He has further stated that Fr. Elias Daniel (Accused No.1) had come to Seminary on 23.2.2013 at about 1.00 p.m. along with one person and went to 11 the Chamber of Fr.Xavier and was speaking in a loud voice. After some time, both of them came out in a furious mood.
h) On 2.4.2013 the statement of Rajkumar working in kitchen of the Seminary was recorded. According to him, Fr.Elias Daniel, Fr.William Patrick and Fr.Peter (Accused Nos.1 to 3) along with two others were going towards the Seminary at about 11.00 p.m.. After few minutes security guard of the Seminary was proceeding from Seminary towards Yeshwanthpur Circle. After sometime, this witness and his brother entered the Seminary building from a place where the compound had fallen and slept in his room. Statement of Maan Singh, the security guard was recorded on 3.4.2013 by the Police Inspector. He has stated about coming to the Seminary at about 10.00 p.m. to attend night duty. At about 10-15 p.m. Fr.Periannan and Fr.Joe Francis came to the Seminary in a white car and after some time went away in the same car. According to him, accused Nos.1 to 3 who are known to him very well came near the gate of the seminary at about 11.00 p.m. on seeing them he had asked Fr.William Patrick who had a 12 shawl on his body, as to why he had come at that time. Fr.William Patrick told him that he had come to see Fr.K.J.Thoman. Then accused No.1 Fr.Eliyas Daniel gave him a five hundred rupee note stating that it was a festival day for them. Along with these persons, one person aged about 55-60 years who was dragging his leg had a bag in his hand. Another person was aged about 25-30 years of a height of 5 to 5½ feet had also accompanied him. He has told the police that he could identify them if shown to him since he had seen all the five in electrical light. After receiving Rs.500/-, he went to a nearby wine shop. Since it was raining, he could not return immediately. After the rain and thunder receded, he came back to the seminary and slept in the seminary security room. Before that he locked the main gate. As usual he went near the main gate at about 5.00 a.m. and found that to his surprise, the lock put to the inside seminary gate was not to be found, but was lying on the ground. At about 5.15 a.m. Fr.Stanley came to the seminary in a bus and went to his room. Then he (Maan Singh) switched off the lights and went to security room to take 13 rest. At about 6.00 a.m. procurator Fr.Xavier came to him and asked as to what he was doing there when the doors of his (Fr.Xavier's) room and that of Fr.Thomas are damaged and Fr.Thomas lying murdered in the tea room.
i) The statement of CW-7 Mr.David who is a rag picker living with his wife and children in a bus stop shelter near the seminary for the past 4-5 years, was recorded on 3.4.2013. According to him accused Nos.1 to 3 with others came near the seminary at about 11.00 p.m. on 31.3.2013 along with two others. According to him, on that day it was raining and thundering and at about 2.00 a.m. in the night all the five persons including accused Nos.1 to 3 were proceeding briskly towards Yeshwanthpur circle. It is his say that he knew accused Nos.1 to 3 very well since they were often coming to seminary. He knew Mann Singh and Mariyappa Reddy-CW-6.
j) The statement of Mariyappa @ Reddy CW-6 was also recorded on 3.4.2013 by the police. Himself and his brother Francis were working in the seminary. According to him, he had 14 drunk whisky and while coming back to the seminary, he sat on a stone bench in the vicinity of Christ King Church and saw accused Nos.1 to 3 going towards the seminary along with two persons and has described one of the unknown persons dragging his foot.
k) Further statement of Fr.Patrick Xavier was recorded on 2.4..2013 and 21.8.2013. On 2.4.2013 he gave graphic details about the protest from Kannada Christians and the order of status quo obtained in a suit filed by the deceased against same Kannada Christians. Initially he had told the police that some antisocial elements were shouting outside his room and did not venture to come outside his room and heard some vague conversation outside the window of his room.
l) In the second week of July 2013, Fr.Patrick Xavier was subjected to narco-analysis test. One day after the test, he had been to the house of Archbishops and inside his house he met Fr.C.Francis, the Vicar General who stared at him and asked "why are you keeping quite because of Fr.William Patrick". He denied 15 this and said that he was not aware of Fr.William Patrick. He has given details of the attempt made by him to get the Municipal tax of Rs.2.40 Crores waived if the seminary paid a sum of Rs.40 lakhs to the Commissioner of BBMP. This was communicated by Fr.Patrick Xavier to accused No.1 as the proposal was not acceptable to Archbishop of Bengaluru Diocese. Then Elias Daniel and one Francis who had came with him, went away very much dissatisfied.
m) Detailed statement of Archbishop Dr.Bernard Maras was recorded on 3.4.2013 which corroborates the version of Fr.Xavier in regard to the waiver of BBMP tax and the proposal of accused No.1 to pay him Rs.40 lakhs to be given as bribe. Further statement of Dr.Bernard was recorded on 31.5.2014 with reference to various documents and court orders in O.S.5183/2000 against the activist of Kannada Priests' Conference.
n) The statement of Khadar s/o Basha, tea stall owner near RTO complex, Yeshwanthpur, was recorded on 26.3.2014. He 16 has stated that accused Nos.1 to 3 as the persons who took tea at about 10.30 p.m. on 31.3.2013 and paid Rs.50/-. According to him, two more persons were with these three persons.
5. Learned counsel for the petitioners have vehemently argued that no prima facie case appearing against these petitioners for the offences alleged against them is made out, and that the entire case is based on weak circumstances. They have further argued that the circumstances relied upon by the prosecution are too weak to link these petitioners with the murder of deceased- Rector. It is further argued that the inordinate delay in recording the statements of material witnesses and discrepancy in recording their further statement weakens the prima facie case. It is further argued that the police have not furnished copies of narco-analysis report or polygraph test reports conducted on the witnesses, to the petitioners and that inordinate delay in arrest of the petitioners is a good ground to reject the case of the prosecution. It is further argued that these petitioners were very much available for the police to arrest them and that the grounds on which police 17 have arrested them are not sound enough to detain them in custody.
6. Per contra, learned Special Public Prosecutor has vehemently argued that though the case is based on circumstances, police have collected all materials to make out a strong case. It is further argued that no link of the chain is missing. It is further argued that the delay in arresting these accused cannot be considered as a weakness in the prosecution case. Several officers were involved in conducting investigation and the witnesses have made themselves sure about the links. It is argued that they have given no scope for any suspicion and they have chosen to arrest the accused only after collecting credible materials.
7. It is further argued that the materials collected by the police also clearly speak about the criminal conspiracy to murder the deceased-Rector by the petitioners and two others. It is argued that the recoveries made at the instance of accused nos.1 and 2 18 and the use of mobile phones by the accused before and after the murder clearly makes out a prima facie case. He has relied upon the attempts made by these accused and their followers to forcibly take over the seminary and the refusal to pay Rs.40,00,000/- as bribe to BBMP Commissioner for waiving tax.
8. It is always said that actions speak louder than words and the mind of a person can be gathered by his actions. It would not be possible for anyone to venture into the mind of another in order to say as to what thoughts are going on in his mind. Therefore from the surrounding circumstances, one has to gather inference of conspiracy.
9. Police have recorded the statements of the procurator, i.e. first informant and have also recorded his further statement after subjecting him to narco-analysis test. Maan Singh whose statement is recorded by the police, is CW-4. He was the security guard by the main gate of the seminary. CW-5, Rajkumar and CW-6, Mariappa Reddy were working in the seminary and they 19 are competent witnesses. David, CW-7 is also a relevant witness to speak about the presence of accused nos.1 to 3 along with others on the midnight of 31.3.2013 in the seminary. The delay in recording their statements appears to be well founded, more particularly in the light of subjecting Sebastian Periannan, Fr.William Patrick, Fr.J.Joseph, Roland Babu (receptionist), driver, Sagairaj (kitchen assistant) and Maan Singh and the clues available in the polygraph test done with the permission of the court. This was done in the month of September 2013. Later, Sebastian Periannan Fr.William Patrick and security guards were subjected to narco-analysis test at Bengaluru and then in Ahmedabad.
10. What is argued by the learned counsel for the petitioners is that copies of the report of polygraph test or narco-analysis test have not been made available to them. They are not admissible in evidence and they can only help the investigator to get some clues in order to conduct further investigation. On the basis of the disclosure made by them during these tests, further investigation has been made. The blood-stained towel said to have been used 20 to throttle the neck of deceased-Rector has been recovered at the instance of the 1st accused and the weapon i.e. iron rod was seized at the instance of the 1st accused. The mobile phones of accused nos.1to 3 have also been seized and relevant call details have been received from the concerned service providers to know that they were in touch amongst themselves prior to the commission of the murder and thereafter, and the same speaks about conspiracy.
11. What is argued by the learned counsel for the 3rd petitioner is that there is no acceptable evidence to link him with the murder. Admittedly Maan Singh, tea stall owner and David have given important clues about the entry of accused nos.1 to 3 along with two others into the seminary at 11.00 p.m. on 31.3.2013. Police have not conducted investigation hastily. They have weighed the material collected during the course of investigation.
12. What is argued by the learned Special Public Prosecutor is that the accused were members of an unlawful assembly and in furtherance of the common object, they participated in the 21 murder. It is further argued that these accused have strong contacts with foreign countries and they are highly influential.
13. It is argued that police had to be slow in conducting investigation because two Fathers were involved in the murder and they were expected to be sure about their participation only after ascertaining all the materials.
14. What is argued before this court by the learned counsel for the petitioners is that these petitioners have been in jail for more than 11 months and the trial is not likely to commence or conclude at the earliest. Merely because trial is not likely to commence at the earliest would not be a ground in a case where the gravity of the offence alleged is severe. In the case of KALYAN CHANDRA SARKAR .. RAJESH RANJAN @ PAPPU YADAV (2004 SCC (Crl.) 1977) dated 12.3.2014, the Hon'ble apex court has held that the seriousness of the allegation and the allegation made by the prosecution will also have to be taken into consideration while considering the bail application 22 under Section 439, Cr.P.C. In this view of the matter, no good grounds are made out to enlarge the petitioners on bail at this stage.
15. It is submitted before this court that the case in the trial court is posted for hearing for arguments on the question of framing of charges. Therefore a request can be made to the learned sessions judge to frame charges at the earliest and to take up the case for trial at the earliest. In view of the facts and circumstances of the case and the gravity of the offence and the circumstances under which the alleged murder of a Rector is stated to have taken place, this is not a fit case to enlarge the petitioners on bail at this stage. Hence the petitions are liable to be dismissed.
16. In the result, I pass the following order:
ORDER All the bail petitions are dismissed. Notwithstanding dismissal of the bail petitions, the learned sessions judge to frame 23 charges at the earliest and identify the material witnesses with the help of the learned Special Public Prosecutor and to examine them on priority.
The learned Special Public Prosecutor to assist the learned judge in identifying material witnesses so that they can be examined on priority and to dispose of the entire case, preferably within nine months from the date of framing charges. It need not be reiterated that when once trial starts, it will be on a day-to-day basis as per the mandate of Section 309, Cr.P.C.
Send a copy of this order to the learned sessions judge for reference.
Sd/-
JUDGE vgh*