This product is Licensed to : Sri Sadananda Law Firm; Advocate office

2020 0 Supreme(Kar) 1430;

IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)

Shivashankar Amarannavar, J.
Nagaraj - Appellant
Versus
State Of Karnataka (Through Rural Police Station Ballari) - Respondent
Criminal Petition No. 101090 of 2020
Decided On : 24-09-2020

Acts Referred:
CRIMINAL PROCEDURE CODE : S.164, S.439
INDIAN PENAL CODE : S.302, S.304 Part II

Cases Referred:
DATARAM SINGH vs. STATE OF UTTARA PRADESH AND ANOTHER, (2018) 3 SCC 22

Advocates Appeared : B. Anwar Basha, Advocate, Seema Shiva Naik, Advocate

JUDGMENT

Shivashankar Amarannavar, J. - This petition is filed by the accused under Section 439 of Cr.P.C. seeking
bail in Crime No.238/2019 of Bellary Rural Police Station (S.C.No.63/2019) registered for an offence
punishable under Section 302 of The Indian Penal Code (hereinafter referred to as the IPC , for brevity).

2. It is the case of the prosecution that, one Honnur Swami had filed complaint that he is residing with his
father Kuliyappa, mother Laxmi Devi and younger brothers Ramesh and Manjunath and younger sister
Anita. It is further stated that, he has married Vasanta-the daughter of his father s younger sister Laxmidevi.
It is further stated that, said Vasanta, the wife of the complainant, has a brother by name Nagaraj. The
marriage of Nagaraj had taken place with Usha about 3 years ago and one year ago, there was a quarrel
between Nagaraj and Usha and now Usha is residing in her parents house. Nagaraj is doing Hamali work in
bus stand. The said Nagaraj was insisting the deceased- Kuliyappa to settle his dispute with his wife Usha on
the ground that he has arranged the said marriage. It is further stated that, the said deceased Kuliyappa went
to the house of the accused/petitioner Nagaraj. It is further alleged that, the accused Nagaraj insisted the said
Kuliyappa to settle his marriage and at that time the said Kuliyappa asked him to improve himself and leave
his bad habits and thereafter he will settle his dispute. It is further alleged that, on the date of incident, after
dinner, the deceased and the accused Nagaraj were sleeping inside the house in a room and his parents were
in another room. It is further alleged that, at about 10.00 p.m. the parents of accused Nagaraj heard the sound
inside the house and at that time the accused-Nagaraj, holding chopper, went out of the house and that they
went inside, they saw that Kuliyappa had sustained injuries on his neck and he had died on the spot. The said
complaint came to be registered in Crime No.238/2019 for an offence punishable under Section 302 of IPC.
The petitioner came to be arrested on 20.07.2019. The petitioner has filed bail application in S.C.No.63/2019
and the learned Principal District and Sessions Judge, Ballary, has rejected his bail application by order dated
04.06.2020. Therefore, the petitioner is before this court seeking bail.

3. Heard the arguments of learned counsel for the petitioner and learned HCGP for respondent-State.

4. It is the submission of the learned counsel for the petitioner that, the deceased is father of the complainant
and the petitioner/accused is elder brother of complainant s wife Vasanta. It is his further submission that,
there was no intention on the part of the petitioner/accused to kill the deceased but in a heat of anger, has
assaulted him with chopper and therefore the same will not attract offence punishable under Section 302 of
IPC and utmost attracts offence punishable under Section 304 Part II of IPC. It is his further submission that,
charge-sheet has been filed and the case of the prosecution is based on circumstantial evidence and there are
no eyewitnesses to the incident. With this he prayed to allow the petition.

5. Per contra, the learned HCGP submitted that, C.Ws.10 and 11 are the parents of the petitioner/accused and
in their statements recorded by the police and by the Judicial Magistrate under Section 164 of Cr.P.C. stated
that, on hearing the sound they went out of the house wherein deceased and accused were there and at that
time accused holding chopper ran away from the house and the dead body of the deceased was lying in the
room. It is her further submission that, the accused assaulted deceased as he did not hold panchayat to settle
his dispute with his wife. It is her further submission that, the charge-sheet material prima-facie establish the
offence against the petitioner/accused. It is her further submission that, the parents of the petitioners are the
eyewitnesses in the case and therefore if the petitioner is granted bail, he will tamper the prosecution
witness and flee from justice. With this she prayed to reject the bail petition.

6. Having regard to the submission made by the learned counsel for the petitioners and the learned HCGP,
this Court has gone through the charge sheet records. The marriage of the petitioner/accused with Usha was
arranged by deceased Kuliyappa, the father of the complainant, and there was dispute between the
petitioner/accused and his wife Usha and she was residing with her parents. The petitioner/accused insisted
Kuliyappa to hold panchayat to settle his dispute with his wife and at that time the deceased Kuliyappa had
advised the accused to improve himself and thereafter he will hold panchayat. The incident has taken place
when the deceased has gone to the house of the accused Nagaraj. As per the averments of the complaint and
the statement of CWs.10 and 11, the deceased and the petitioner accused were in a room and they were
discussing regarding something and there was sound at 10.00 pm and at that time, when they went there, the
petitioner/accused Nagaraj holding chopper ran away from the house. There are no eyewitnesses to the
incident and the case of the prosecution is based on last seen theory. It appears that in a heat of anger, the
petitioner has assaulted the deceased with chopper and he had no intention to kill him as argued by the
learned counsel for the petitioner. Whether it amounts to murder or culpable homicide not amounting to
murder punishable under Section 304 Part II of IPC, is a matter of trial.

7. It is well settled that matters to be considered in an application for bail are:

(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed
the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character,
behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the
evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his
mere presence at large would intimidate the witnesses or if there is material to show that he will use
his liberty to subvert justice or tamper with the evidence, then bail will be refused.

8. In a decision in the case of DATARAM SINGH Vs. STATE OF UTTARA PRADESH AND ANOTHER,
(2018) 3 SCC 22 , the Hon ble Apex Court held as under:

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby

that a person is believed to be innocent until found guilty. However, there are instances in our criminal
law where a reverse onus has been placed on an accused with regard to some specific offences but that
is another matter and does not detract from the fundamental postulate in respect of other offences. Yet
another important facet of our criminal jurisprudence is that the grant of bail is the general rule and
putting a person in jail or in a prison or in a correction home (whichever expression one may wish to
use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of
with the result that more and more persons are being incarcerated and for longer periods. This does not
do any good to our criminal jurisprudence or to our society.

9. In the present case the investigation is completed and charge sheet has been filed. No grounds have been
made out by the prosecution to show that custodial interrogation of the petitioner-accused is necessary. The
petitioner is in judicial custody since 20.07.2019. There are no criminal antecedents of the petitioner. The
petitioneraccused is residing in the address shown in cause title and the same is not disputed. The main
objection of the prosecution is that in the event of grant of bail, the accused are likely to cause threat to the
complainant and other prosecution witnesses. The said objection may be set right by imposing some stringent
conditions.

10. In the facts and circumstances of the case, this Court is of the considered view that there are valid
grounds for grant bail subject to conditions. Hence, I pass the following:

ORDER

The petition filed under Section 439 of Cr.P.C. is allowed. The petitioner/accused shall be released on
bail in Crime No.238/2019 of Bellary Rural Police Station (S.C.No.63/2019) subject to the following
conditions.

i) The petitioner/accused shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees
only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to Covid-
2019, the petitioner is permitted to furnish surety within two months. If circumstances arise, the
jurisdictional court is permitted to extend the time for furnishing surety.

ii) The petitioner/accused shall not indulge in tampering the prosecution witness.

iii) The petitioner/accused shall appear before the Court regularly and co-operate in speedy disposal of
the case.