Karnataka High Court
Sri. Immadi Mahadeva Swamy vs State Of Karnataka on 25 September, 2019
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRL.P. NO. 2153/2019
BETWEEN:
SRI. IMMADI MAHADEVA SWAMY @
DEVANNA BUDDI @ DEVANNA SWAMY
SON OF LATE. SRI. VEERA BASAPPA
AGED 52 YEARS
RESIDING AT SALUR MATHA
MALAI MAHADESHWARA HILLS
KOLLEGAL TALUK
CHAMARAJANAGARA DISTRICT - 571440 ... PETITIONER
(BY SRI. Y. SADASHIVA REDDY., SR. COUNSEL FOR
SRI. NISHANTH A. V., ADVOCATE)
AND:
STATE OF KARNATAKA
RAMAPURA POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001 ... RESPONDENT
(BY SRI. V.S. HEGDE., SPP-II AND SRI. J.S. HALASHETTI.,
ADVOCATE FOR VICTIMS APPOINTED BY HCLSC)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN CR.NO.266/2018 REGISTERED BY RAMAPURA
POLICE STATION, CHAMARAJANAGARA FOR THE OFFENCE
P/U/S 120(B), 118, 307 AND 302 R/W 34 OF IPC AND
SECTION 3(2) (v) (va) OF SC/ST (POA) ACT.
2
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON .2019 COMING ON FOR
'PRONOUNCEMENT OF ORDER', THIS DAY K.N.
PHANEENDRA, J. MADE THE FOLLOWING:
ORDER
The petitioner is arraigned as accused No.1 in the charge sheet laid by the respondent-police in Special CC No.72/2019 [Crime No.266/2018] for the offence punishable under Sections 118, 120B, 326, 307, 302 read with Section 34 of IPC and also Section 3(2)(v)(va) of SC/ST (POA) Act, 1989, has approached this court for grant of bail u/s.439 of Cr.PC.,
2. Before adverting to the rival contentions raised by the petitioner's counsel and the respondent-State, it is just and necessary to have the brief factual matrix of the case:
The petitioner is a Pontiff (Swamijee) of 'Kitcchu Gutti Maramma Temple' situated at Suluiwadi village and there was a Trust created with reference to the said temple and it is alleged that accused No.1 has mis-used the donations given to the said temple and also other articles for his personal use without giving any proper account for the 3 same. In this context, there were differences between the other trustees and this petitioner. Therefore, there are two groups one headed by the petitioner herein and the other by the other trustees. In this context, A4 who is the Manager of the Trust and husband of A2 joined hands with the petitioner. They have taken the help of A3 for the purpose of causing damage the status of other trustees. A3 is also a person who was doing the pooja of Nagakanya Temple situated by the side of Suluiwadi Kicchu Gutti Maramma Temple, situated at Martalli village, Kollegal Taluk. One of the Trustees of the temple CW-6 has detected that, A3 has been misleading the devotees of the said temple and A3 was also dealing with Ganja business. He inturn informed the Police and in that context, A3 was arrested by the police and sent to Jail. Therefore, A3 was also nurturing grievance against CW-6 who is also one of the trustees of rival groups of the said temple.
3. In the above background, it is alleged that, the petitioner and the accused No.2 have had illicit intimacy with each other to the knowledge of A4. A1, A2 and A4 with the help of A3 have hatched a conspiracy to create such a 4 situation not only to cause some status damage to the other trustees of the said temple but also to see that the other trustees would be arrested by the police. In that eventuality, the petitioner No.1 can take the absolute control over the temple and the Trust properties. With that fond hope, it is further alleged that the petitioner has assured A2 to A4 that if he become the absolute controller of the Trust and Temple, he would give good post to them in the said temple and trust, if they do the acts according to his instructions. It is further alleged that on 14.12.2014, there was a function fixed i.e., the foundation laying ceremony with reference to the said temple building for the construction of Gopura of the temple, for which A1 to A4 knew that lot of devotees would come to that function. In that context it is alleged that A1 has instructed A2 and A4 to poison the food/Prasad that would be prepared on that particular day to be distributed amongst the devotees and the devotees after consuming the said Prasad/food, they will die or suffer illness and the police would arrest the rival Trustees so that, the petitioner can take the absolute control over the temple and the trust. In pursuance of the said 5 conspiracy on 07.12.2018, A2 has requested CW2 one Siddappa Swamy who was working as an Agricultural Officer to provide her some insecticide on the guise that she require them for the purpose of spraying the same to the plants around her house. Accordingly, CW2 has given the insecticide by name Organophosphorus insecticide (Monocrotophos) to the extent of two bottles to A2. Again A1 and A4 have conspired together, with A3 who has accepted to mix the insecticides in the food to be distributed to the devotees on 14.12.2018. Accordingly, on 14.12.2018 A3 mixed that two bottles of insecticides given by A2 as per the instructions of the petitioner in the rice bath prepared for distributing amongst the devotees on that particular day.
4. During the function, the devotees who participated have consumed the said food. Out of them, totally 17 persons died due to consumption of the poisonous rice bath and as many as 164 persons sustained severe health problems and illness. On the basis of the above allegations, the police have thoroughly investigated the matter and 6 submitted a charge sheet against the accused for the above said offences.
5. The learned Senior counsel for the petitioner Sri Y.Sadashiva Reddy, seriously argued before this court that the further statement of CW-2 who implicate A1, A2 and A4 has been recorded after much deliberation on 17.12.2018 though the incident happened on 14.12.2018. Therefore, there is a delay in recording the statement of material witnesses. The alleged voluntary statement of Accused No.2 is the only trump card for implicating the petitioner which is not admissible. He has also contended that on 15.12.2018 itself, the Deputy Superintendent of Police, secured the presence of CW2 and recorded his statement. As per the statement of CW-2 in his 164 Cr.P.C statement before the jurisdictional court, he has stated that, his statement was recorded by the Police on 16.12.2018, but the said statement has not been made available in the Charge Sheet. On 13.02.2019 further statement of CW-2 was recorded, in that he deviated from his earlier statement with regard to in what manner he secured the two bottles of insecticides to 7 hand over the same to A2. He has further contended that the entire allegations made against the petitioner No.1 is on the basis of the voluntary statement of A2, A3, A4. A3 has not implicated the petitioner specifically with regard to any conspiracy between himself and the petitioner to poison the food. The Statement of A2 Ambica discloses that there was no direction by the petitioner in what manner with what plan they have to defame the other rival trustees. Therefore, it is the exclusive plan of A2, A3 and A4 and the mode of doing the acts were selected by A2 only and thereafter, she implicated A1 that at the instance of A1, she poisoned the food. A4 has also not specifically implicated the petitioner. Therefore, there is absolutely no direct evidence against the petitioner. The prosecution only relied upon the statements of the co-accused for the purpose of laying a false claim against the petitioner, it clearly goes to show that he never participated in person to poison the food.
6. It is further argued that the petitioner is the person who acquired lot of status in the society, and he never involved in such activity at any point of time. He is a law 8 abiding citizen. He has been in JC since eight months as the charge sheet has already been filed, he is no more required for any more investigation and he is ready and willing to offer substantial surety for his appearance and also he would abide by any conditions that may be imposed by the court. Therefore, the learned counsel pleaded for enlargement of the petitioner on bail.
7. The said arguments of the learned counsel for the petitioner has been seriously countered by the State Public Prosecutor-II Sri. Hegde. He has narrated as to how the incident has happened and how the conspiracy has been entered into between the accused. He has drawn the attention of the Court about the serious impact of the incident that caused 17 deaths and illness to 164 persons. The remains in the Poison bottles and also the contents of food on which the poison was administered and the vomits of some of the persons who have consumed the food have been recovered and seized were sent to FSL and the FSL report clarifies the presence of Organophosperous in the said food materials. He also contends that, the prosecution has collected sufficient materials by examining CWs.14, 23, 9 24 and 25 with regard to the movements of A1 to A4 and their conspiracy. The above said witnesses are none other than the close associates of the petitioner. The animosity between the two groups i.e., one headed by the petitioner and by the other rival trustees is also admitted and evident from the record. The voluntary statement of the accused ie., A2 to A4 and 164 Cr.P.C statements given by CWs.2, 14, 23, 24 and 25 clearly indicate at this stage that the accused/petitioner is the kingpin and he is the master mind for the commission of offence through other accused persons and for ensuing of such bad incident.
8. He has also contended that, there are some criminal cases pending against the petitioner under Wild Life Act and also with regard to his misbehavior and also u/s.354 and 504 of IPC. The petitioner admittedly, having large number of followers and has contacts with many political leaders and he has got money and mussle power. If he is released on bail, definitely, he would tamper with the prosecution witnesses who are his close associates. Therefore, for all these reasons, he prayed for dismissal of 10 the petition on the ground that there is a strong prima facie case made out against the petitioner.
9. Sri Jagadish S.Halashetti, learned counsel who is also directed by the court, to assist the court, who is appointed by the High Court Legal Services Committee, has in fact supported the arguments of the learned SPP-II and he has further contended that, considering the magnitude of offence and death of large number of persons who are innocent devotees who have attended the function, for the rivalry between two groups, the petitioner and other accused have taken such a drastic inhuman step on the basis of their conspiracy to cause injury to the innocent public at large that has to be taken very serious note by the court and it is sufficient to reject the bail petition.
8. In the wake of the above said submissions, the court has to examine the materials on record, whether there is any strong material placed before the court to enlarge the petitioner on bail or not.
10. The fundamental basic principles of criminal jurisprudence with regard to grant of bail is that if there is 11 any strong prima facie case is made out against the accused which is in turn affects the society at large and there are sufficient materials to come to the conclusion that the prosecution has prima facie case and in such an eventuality, the court should not release such person. On the other hand, if the circumstances available on record creates some doubt with regard to the complicity of the accused and the previous antecedent conduct of the accused and also the accused is ready and willing to offer substantial surety, abide by any of the conditions, in such an eventuality, the court should be liberal in granting bail. On the other hand, the court also should bear in mind the impact of the acts of the accused person not only on the victims, but also on the society.
11. Before adverting to consider the materials on record to find out whether there is any strong prima facie case made out against the petitioner or not are required to be examined. It is an admitted fact that, charge sheet has already been filed and accused/petitioner was arrested on 18.12.2018, since then, he has been in Judicial Custody. It is a fundamental basic principle of criminal jurisprudence 12 that in order to grant or refuse bail, the court has to consider the entire materials on record to find out whether a prima facie case is made out against the accused particularly considering specific role adverted to him in the entire charge sheet papers and connecting materials. If no prima facie case is made out, no discretion vests with the court to reject the bail petition, in such an eventuality, the accused, as a matter of right entitled to be enlarged on bail. If there are materials to connect the accused prima facie making out a case by the prosecution, in such an eventuality, still the discretion vests with the court considering the other facts and circumstance either to reject the bail or to enlarge the accused on bail. If a strong prima facie case is made out considering the other circumstance and also the availability of the accused, the conduct of the accused and his status in the society and whether if he is released on bail, he would tamper with the prosecution witnesses and whether he will jump the bail and may not be available to the trial are some of the main important aspects that has to be taken into consideration by the court. 13
12. In the above said backdrop, now, let me consider whether there is a strong prima facie case available on record or not. The main allegations as narrated in the charge sheet which are virtually not in dispute are that, the petitioner is a pontiff in the temple called as Kichuguthi maramma temple and there is a committee of management comprising of some trustees etc., and there was long standing difference between the petitioner and the other committee members. In order to take complete control over the trust properties and the committee, the petitioner has hatched a conspiracy with accused persons 2 to 4 taking advantage of the situation that, there was a foundation laying function proposed to be held on 14.12.2018 which was actually conducted by the rival committee members. In order to bring bad name to them and to see that, the rival trustees or committee members are arrested by the police. It is alleged that petitioner No.1 has directed A2 and A4 to mix some poison to the food that would be prepared on that particular day and accordingly, the accused persons 2 to 4 have acted on the direction of this petitioner with the active assistance of A3 mixed insecticide by name Organo 14 phosphorous to the Rice bath prepared on that particular day.
13. It is an admitted fact that on that day, the devotees who came to the temple have consumed the Rice bath have suffered inconvenience and suffered injuries and out of them, 17 persons died. It is also available on record that there was a seizure of vomitings of the persons who have suffered injury and the persons died and as well the recovery of the insecticide bottles from the house of A2 and A4, sent to the FSL and the FSL report which is available on record discloses that those items contain the insecticide called as Organo phosphorous which was the root cause for the death of 17 persons and causing illness to 161 persons.
14. In order to establish the conspiracy, the prosecution has relied upon the statement of some of the witnesses particularly CWs.14, 23, 24 and 25. CW-14 one Mr.Ravi, who is the driver of the petitioner has stated that he used to take the petitioner to different places as and when required and in fact, he has stated about the illicit intimacy between A2 with the petitioner and also stated 15 that on 09.12.2018, just about 5 days prior to the incident, the accused persons have met together at a village called as Martalli and went to the house of A2 and A4 and thereafter on the same day at about 5.00 p.m., the petitioner and A2 went to Elchikerke garden land and house and there, all the accused persons met together. He has also stated that after the incident on 14.12.2018, this petitioner told this witness not to go towards Sulwadi but return to Hanur, RS Doddi, stating that there may be some problem in Sulwadi village because there could be some galata etc., 164 Cr.PC. statement of this witness was also recorded and he reiterated the same. Apart from this, CW23 Siddabasava and CW24 - Shantha Murthy and CW25 Madesh all of them are the associates of the petitioner who were working in the lands of the petitioner and the Malai Mahadeshwaraswamy Education Trust and they also stated that, on 09.12.2018 all the accused met together and they also stated about the illicit intimacy between the petitioner as well as A2, which was also within the knowledge of A4.
15. The prosecution has mainly relied upon the statement of CW2 one Mr.G. Siddappa Swamy who has also 16 disclosed that A2 on 6.12.2018 told him to furnish some insecticide for the purpose of spraying it to the plants surrounding her house and in fact, he furnished the same to her just prior to the incident. But, on 15.12.2018 at about 8.30 a.m., in the morning he enquired accused No.2, then she told that at the instance and directions of the petitioner, they have actually mixed that insecticide through A3 in the rice bath prepared on 14.12.2018 and due to which some persons died and some persons fell ill. Then CW-2 told her that he would disclose the same to others, then, she threatened him that, if he disclose the same to anybody, she would implicate him making allegation that he has committed rape on her etc., His statement was also recorded u/s.164 Cr.PC., wherein, he has re-iterated the same.
16. Though the learned counsel submitted that, there is some deviation from his 161 Cr.PC. statement to that of 164 Cr.PC. statement with reference to securing of the insecticide which is a minor discrepancy but the remaining facts, there is no difference so far as it relates to furnishing the said insecticide bottles to A2 and A2 on 17 15.12.2018 disclosed him that at the instance of A1, she with the assistance of A3 mixed the same in the food Prasad prepared on that particular day.
17. Apart from the above, the prosecution has mainly relied upon the voluntary statement of the accused Nos.1 to
4. Accused Nos.2 to 4 in their voluntary statement implicated the petitioner that he is the kingpin and he actually directed them to do in the above said manner so as to defame the committee members and if possible to see that the other committee members are implicated in a Crime and arrested by the police so that petitioner can take full control over the management and the trust. However, the said statement of the accused is not permissible to be relied upon by the court as the statement of the co-accused is un-trustworthy of credence unless it is supported by corroborative materials on record. Therefore, this court is not inclined to rely on the voluntary statement of the other accused persons, but the fact remains that the voluntary statement of the accused persons have been recorded and A2 to A4 have implicated this petitioner.
18
18. The other materials available on record as noted above, are that there is sufficient materials to show the illicit relationship between the petitioner and A2 and that A2 and A4 have been working with the petitioner and they are close associates of the petitioner. A3 is also shown to have grudge against one of the committee members of the Trust, because one of the trustee has intimated the police about the illegal activities of A3 with regard to having possession of Ganza etc., and on that ground, he was arrested by the police. There are some materials placed before the court to show that A1 to A4 prior to the incident had meetings amongst themselves and further, about the said meetings and the direction issued by A1/petitioner herein to A2 and A4, have been spoken to by A2 before CW2 which is in the nature of extra judicial confession. Therefore, looking from the above said facts and circumstances of the case, there are strong circumstantial evidence, though there is no direct evidence that, there was a meeting of minds of the accused Nos.1 to 4 prior to the incident. The other witnesses as noted above i.e., CWs.14, 23, 24, 25 etc., are all close associates of the petitioner himself. They have spoken to 19 about the illicit relationship between the petitioner and A2. A2 has implicated the petitioner in her voluntary statement, though her statement at the present is not credit worthy for acceptance but the said statement made by her and the other accused is also otherwise corroborated by other materials on record. Therefore, the said statements of the accused also cannot be completely ignored though they cannot be relied upon at this stage.
19. Apart from the above, the sequence of events which are placed before the court that immediately after the incident, after arrest of the accused persons, there were recoveries at the instance of A2 and A4 i.e., the insecticide bottle and also Dhoti of A3 who actually mixed the poison and there is also material to show that on that particular day A2 to A4 had been to the kitchen and A4 in fact deviated the attention of the cooks working there so as to enable A3 to mix that poison to the food to be prepared on that particular day. After the incident, the police have also seized the vomits of the persons who have fell ill and also at the time of Post Mortem examination of the persons who died, their viscera and other important parts of the body 20 were sent to FSL and FSL report discloses that the said food consumed by them contained Organo Phosphorous insecticide which was sufficient to cause the death of a person.
20. Looking to the above said facts and surrounding circumstances though there is no direct evidence so far as the petitioner is concerned, that he actually mixed the poison to the food, but in my opinion, there is sufficient material to establish that, his connivance is there with A2 to A4. The rivalry between the petitioner and the management committee is virtually is not denied and such argument was addressed that the other committee members in order to avoid the petitioner they also might have indulged in falsely creating the evidence against the petitioner, that clears the doubt that there has been rivalry between the petitioner and other members of the managing committee. By considering the above said materials on record, it is the main allegation against this petitioner that he was the master mind for the purpose of doing the said act through A2 to A4. 21
21. In the above said background, I am of the considered opinion that the prosecution has made out a strong prima facie case against the petitioner. The court though should not be persuaded by a sensational issue involved in a case and particularly the news that has been spread over by the media, but still the court has to examine the magnitude and social impact of the case and it should not be totally ignored when a prima facie case is made out. The court is also answerable to the society. In this particular case, the magnitude of the case in my opinion is so high because of the alleged conduct of the accused persons, 17 innocent persons have lost their lives and more than 170 persons have fell ill and what would be the consequences in their future health is also to be taken note of by the court. Therefore, considering the above said facts and circumstances of the case, I am of the opinion at this stage the prosecution has established a unbeatable prima facie case.
22. It is also evident from the record that the petitioner is having sufficient followers particularly the above noted witnesses are the close associates of the petitioners 22 and if he is released on bail there are chances of he meddling with those witnesses who are close associates and tamper them. It is also alleged that the petitioner is also involved in other three cases. In crime No.11/2016 of MM Hills, NCR No.39/2018 of the same police and crime No.328/1998 of the same police with reference to various offences. Though it is denied by the other side, it cannot be easily ignored by the court. Therefore, the conduct of the accused and his previous antecedents and the surrounding circumstance and existence of some apprehension that the petitioner may tamper with the prosecution witnesses, are all the connecting materials which are at this stage persuade this court to reject the bail petition. Therefore, considering the role of the accused that he has actually alleged to be the kingpin in this particular case. It is not advisable to release him on bail.
23. It is worth to refer here a decision of the Hon'ble Apex Court reported in (2011 1 SCC 694) [Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others] wherein some parameters have been laid down with reference to the granting or refusing the bail. The Hon'ble 23 Apex Court observed that the Court has to examine the antecedents of the petitioner whether the accused had any bad antecedent and possibility of the accused tampering with the prosecution witnesses and impact of granting of bail particularly in cases of large magnitude effecting large number of people. The court must evaluate the entire available materials against the accused very carefully. The court also must comprehend the role of the accused in the case and how he was implicated and whether there are sufficient materials to sustain the allegation made against the accused. And thereafter court has to pass appropriate orders.
24. In this particular case as I have already noted, there are prima facie materials against the accused petitioner and also the prosecution has brought out some materials regarding the status of the petitioner and if he is released on bail, there are chances of he tampering with the prosecution witnesses who are no other than the close associates. Therefore, looking to the above said circumstances, in my opinion, the petitioner is not entitled 24 to be enlarged on bail. Hence, the petition is liable to be dismissed.
Accordingly, the petition is dismissed.
Sd/-
JUDGE PL*