Karnataka High Court
Basappa S/O Mayappa vs The State Of Karnataka on 30 May, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101192/2022
BETWEEN
1. BASAPPA S/O MAYAPPA
S/O. MAYAPPA UDDANNAVAR,
AGE: 56 YEARS, OCC. AGRICULTURE
2. HANAMANAT
S/O. BASAPPA UDDANNAVAR
AGE: 22 YEARS, OCC. AGRICULTURE
BOTH ARE RESIDENTS OF
BENNUR VILLAGE, BAGALKOT TQ.
BAGALKOT DIST
.....PETITIONERS
(BY SRI J BASAVARAJ, ADV.)
AND
THE STATE OF KARNATAKA
(THROUGH BAGALKOT RURAL P.S.)
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH AT DHARWAD- 580008
..... RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
2
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING
TO ALLOW THIS PETITION, GRANT REGULAR BAIL IN CRIME
NO.221/2021 CHARGE SHEETED FOR THE OFFENCE U/S 302 R/W 34 OF
IPC REGISTERED BY BAGALKOT RURAL POLICE STATION, BAGALKOT
DISTRICT, IN S.C. NO.15/2022 N THE FILE OF PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT, (CC NO.48/2022 I ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, BAGALKOT DIST.) IN SO FAR AS
PETITIONERS/ACCUSED NO.S.1 AND 2 ARE CONCERNED ONLY PENDING
TRIAL OF THE CASE.
THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This criminal petition is filed by the accused Nos.1 and 2 under Section 439 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for short) for granting bail in respect of Crime No.221/2021 registered by Bagalkot Rural Police for the offence punishable under Sections 307, 323, 324, 504 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC', for short) charge sheeted for the offence punishable under Section 302 read with Section 34 of IPC.
2. Heard the arguments of the learned counsel for petitioners and learned High Court Government Pleader for respondent.
3
3. The case of the prosecution is that one Smt. Sangamma w/o. Yamanappa Uddannavar filed a complaint to the police on 24.04.2021 alleging that herself and her husband along with their children are residing in her parental house. There is ancestral property of 5 acres of land belonging to her husband which was cultivating by the brother of her husband. There was dispute between the family members regarding partition of property. That on 09.12.2021 at 4.00 p.m., her husband and his friend Muttappa, CW-14 went to ask his share. At about 8.00 p.m., one Yamanappa Teji, CW-16 informed the complainant that he received a phone call from Muttappa stating that when the husband of complainant went to ask his share, there was verbal quarrel and Basappa abused him in filthy language and assaulted her husband with stone on the head and Hanamanth assaulted with wooden handle of axe on the head and caused injuries. Immediately the complainant went there and found her husband was lying and sustained injuries. She brought her husband to the house and then doctor was called to the house and first aid was provided. After two days the complainant shifted her husband to the hospital and intimated to the police. Accordingly, the complainant filed a complaint on 11.12.2021. 4 Initially the case was registered for the offence punishable under Section 307 of IPC but on 30.12.2021, the husband of the complainant succumbed to the injuries. Hence, the offence punishable under Section 307 of IPC was converted into Section 302 of IPC. The petitioners were arrested on 12.12.2021 and they have been remanded to judicial custody. The police filed charge sheet. Their bail petitions came to be rejected both under Section 167(2)(a)(i) of Cr.P.C. and under Section 439 of Cr.P.C. Hence, they are before this Court.
4. Learned counsel for petitioners contended that the accused were arrested on 12.12.2021 and they have been remanded to judicial custody on the same day. But the police filed charge sheet on 15.03.2022. The same was endorsed by the learned Magistrate. But the learned Magistrate rejected the application under Section 167(2) of Cr.P.C. observing that the charge sheet has been filed on 10.03.2022, which is not correct. Even the bail petition under Section 439 of Cr.P.C. was also rejected by the learned Sessions Judge. He further contended on merits that the incident took place on 09.12.2021 and the 5 complainant brought her husband to the house and after two days she shifted him to the hospital. Thereafter, the husband of the complainant died in the hospital. There was two days' delay in filing the complaint which was not explained properly. The injuries were not serious. Hence, it may attract the culpable homicide not amounting to murder which may attract either under Section 304 I or 304 II of IPC. The petitioners are in custody more than five months and they are ready to abide by any conditions. Hence, he prayed for grant of bail.
5. Per contra, learned High Court Government Pleader seriously objected the bail petition and contended that the charge sheet is filed on 10.03.2022 itself and the same is entered in the outward register of the police station. The same was endorsed by the police constable and it may be placed before the learned Magistrate on 15.03.2022. Therefore, the charge sheet is filed within 90 days from the date of arrest. Hence, the contention of the learned counsel for the petitioners cannot be accepted that there is a delay in filing the charge sheet. The accused Nos.1 and 2, father and son assaulted the deceased brutally and committed 6 the murder. Therefore, they are not entitled for bail. Hence, she prayed for dismissal of the petition.
6. Upon hearing the arguments, perused the records. On perusal of the same, it reveals that the incident was occurred on 09.12.2021 at 5.30 p.m. in front of the house of the accused Nos.1 and 2. It is not in dispute that the deceased and accused No.1 are blood brothers. Their father left 5 acres of agricultural land which was enjoying by the accused No.1. The complainant and her husband were living in Zadramkunti village and the deceased on the fateful day went to the house of the accused No.1 for demanding share in the property. At that time, there was quarrel between them. Then the accused Nos.1 and 2 assaulted him with stone and stick, back of axe and caused injuries. CW-14 who had accompanied the deceased, informed the same to the complainant and the complainant came there and shifted him to her house not to the hospital. After two days, the injured was shifted to the hospital and the complaint came to be filed on 11.12.2021. After two days, the injured succumbed to the injuries. The postmortem report reveals that there was no fracture injury on the frontal bone 7 but there was injuries on both side of the head. All the injuries over the body are antemortem in nature and are caused by application of blunt force. The accused assaulted the deceased with stick, stone and back of axe. The cause of death is due to hemorrhagic shock as a result of injuries sustained over the head. The injured was not immediately shifted to the hospital. The complainant after getting information from CW-14, she herself went to the place of incident and brought him to the house. She kept her injured husband in the house for two days and the doctor was called to the house and provided first aid and thereafter the injured was shifted to the hospital. Thereafter on 11.12.2021, the complaint came to be filed. After two days' the injured succumbed to the injuries. There was civil dispute between the parties for partition of the property. The investigation is completed and charge sheet is filed by the police. Though the learned counsel for petitioners contended that charge sheet was filed on 15.03.2022, as per the endorsement of the learned Magistrate and the outward register of the police clearly reveal that the charge sheet has been filed on 10.03.2022 itself. In the charge sheet it is mentioned that the charge sheet was prepared on 02.03.2022 but it was said to be 8 filed on 10.03.2022. Though the staff of the trial Court received the charge sheet on 10.03.2022, the same was placed before the learned Magistrate only on 15.03.2022. Therefore, considering this fact, learned Magistrate has rejected the application filed under Section 167(2) of Cr.P.C. Learned Magistrate endorsed on the charge sheet on 15.03.2022 but it cannot be said that charge sheet was filed after filing of the application and it was mentioned in the order sheet that the police have sent the charge sheet and it was filed on 10.03.2022 itself. Therefore, considering this aspect, it cannot be said that the charge sheet was filed after 90th day of the arrest of the petitioners and after filing of application under Section 167(2) of Cr.P.C. Therefore, on this ground the petitioners cannot be granted bail.
7. However, on merits of the case, it reveals that the incident took place in front of the house of the accused. The accused persons assaulted the deceased with stick and stone. The accused No.1 and deceased are brothers. Considering the facts and circumstances and statement of witnesses, it reveals that there was free fight between the deceased and the accused. At that time, 9 accused assaulted the deceased and he got injured. He was not shifted to the hospital instead he was shifted to his home. Initially the complaint was registered for the offence punishable under Section 307 of IPC and after the death of the deceased, it was converted into 302 of IPC. Looking into the facts and circumstances, it cannot be said that whether it was a homicidal death amounting to murder or culpable homicidal death not amounting to murder which can be decided only after a full fledged trial by the Trial Court. Looking to the incident and death of the injured, at this stage it cannot be said that the accused assaulted the deceased with an intention to murder. The deceased died after five days of the incident. Therefore, it cannot be presumed that the accused have committed offence with an intention to murder. The petitioners are in custody for more than five months. The investigation is completed and charge sheet is filed. Therefore, without expressing any opinion, I am of the view that by imposing stringent conditions if bail is granted, no prejudice will be caused to the case of the prosecution. Hence, I am inclined to grant bail to the petitioners. Accordingly, I pass the following order: 10
The criminal petition is allowed. The committal Court is directed to release the petitioners/accused Nos.1 and 2 on bail in Crime No.221/2021 of Bagalkot Rural Police Station for the offence punishable under Sections 302, 323, 324, 504 read with Section 34 of IPC subject to the following conditions:
i. The petitioners shall execute a personal bond for a sum of `2,00,000/- (Rupees Two lakh only) each with two sureties for the likesum to the satisfaction of the committal Court.
ii. The petitioners shall not hamper/tamper the prosecution witnesses directly or indirectly. iii. The petitioners shall not indulge in similar offences. iv. The petitioners shall not leave the jurisdiction of this court without prior permission of the Trial Court.
v. The petitioners shall take the trial without causing any delay.
If any of the conditions is violated, then the prosecution is at liberty to move an application for cancellation of bail.
Sd/-
JUDGE Naa