In the High Court of Karnataka Dharwad Bench
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: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 6 TH DAY OF NOVEMBER 2015 BEFORE THE HON’BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION NO. 101413/2015 BETWEEN 1. BHAIRU SADASHIV CHAMBAR AGE: 32 YEARS, OCC : AGRICULTURE, R/O: BOMMANAL, TQ : RAIBAG, DIST : BELAGAVI. 2. JYOTIBA SADASHIV CHAMBAR AGE: 28 YEARS OCC : HOUSEHOLD, R/O: BOMMANAL, TQ : RAIBAG, DIST : BELAGAVI. 3. TAMMANI DILIP MANE AGE: 26 YEARS OCC : HOUSEHOLD, R/O: BOMMANAL, TQ : RAIBAG, DIST : BELAGAVI. ... PETITIONERS (BY SRI Y.R. SADASHIVREDDY SENIOR ADVOCATE FOR SRI VIJAY K NAIK, ADVOCATE) : 2 : AND THE STATE OF KARNATAKA THROUGH RAIBAG POLICE TQ : RAIBAG, DSIT : BELAGAVI R/BY STATE PP ADVOCATE GENERAL OFFICE HIGH COURT OF KARNATAKA DHARWAD ... RESPONDENT (BY SMT. VEENA HEGDE, HCGP) THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. SEEKING TO ENLARGE THE PETITIONERS ON BAIL IN RAIBAG P.S. CRIME NO.230/2015 (TQ: RAIBAG, DIST: BELAGAVI) FOR THE P/U/SEC.363, 302 R/W SEC.34 OF THE INDIAN PENAL CODE. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT, MADE THE FOLLOWING: ORDER This is the petition filed by petitioner-Accused Nos.2, 1 and 3, respectively, under Section 439 of Cr.P.C. seeking their release on bail of the alleged offences punishable under Sections 363 and 302 R/w. Section 34 of the Indian Penal Code, registered in respondent police station Crime No.230/2015. : 3 : 2. Brief facts of the prosecution case as per the complaint averments are that on 05.07.2015 one Papalal Moddin Nadaf has filed a complaint alleging that he is residing at Bommanal Village, Raibag Taluk, Belagavi District along with his wife Shakira and four children. The elder daughter of the complainant i.e. Mumtaz has been given in marriage and his other children are not yet married. Further, it is alleged that suspecting the eldest son of the complainant i.e. the deceased about 4 years ago was having an illicit relation with Chamitra who is the wife of petitioner/accused No.2. The petitioner/accused No.2 and his family members quarreled with the deceased and his family and at that time elderly persons of the village intervened and advised both the sides and resolved the matter. The deceased was working in Dharmasthala Rural Development Society at Athani since 4 months and he used to come every : 4 : Saturday and go back to Athani on Sunday. It is further alleged that as usual the deceased had come on Friday i.e. on 03.07.2015 to his house at Bommanal and on 04.07.2015 at about 5.00 a.m. the complainant and his youngest son, Saddam Hussein as usual had gone to Jaggery Unit for work. At about 1 p.m. Saddam Hussein made a mobile call to their house and gave it to the complainant and the complainant talked on mobile with his daughter- Yasmin and told her to send the deceased to take the sugarcane hay from the Jaggery Unit and thereafter Yasmin replied that the deceased is removing the animal waste and the deceased told Yasmin to tell the complainant that he is having work at Raibag and hence, finishing it he will come there and thereafter asking the deceased to come soon the complainant disconnected the mobile call. At about 2.30 p.m. when the complainant and his son Saddam Husseian : 5 : both were doing their work at Sanju Bavanchi’s Jaggery Unit at that time one Netaji Maruti Kamble made a mobile call to Saddam Hussein saying that when he and the deceased were waiting near the Bus Stand and talking, at that time the petitioner No.2 and his elder brother i.e. the petitioner No.1 and their paternal uncle’s son i.e. the petitioner No.3 all came together in a Tata Ace Tom Tom vehicle bearing No.KA-23/9826 and got down and caught hold of the deceased and started assaulting him and when Netaji Maruti Kamble questioned them as to why they are assaulting the deceased they warned him not to intervene and further went on to say that despite repeatedly warning to the deceased not to meet Chamitra he is not heeding to them and instead roaming with her and this is causing embarrassment to their family in the village and further said that they will not spare the deceased and they forcibly took him : 6 : in the said vehicle and proceeded towards Byakud hill and abducted him saying that they will kill him hitting him with stone. Complainant narrated all these facts in the complaint. On the basis of the said complaint, a case has been registered against all the petitioners. 3. Heard the arguments of the learned Senior Counsel for the petitioners-accused and also the learned HCGP for the respondent-State. 4. Learned Senior Counsel for the petitioners/accused made the submission that so far as alleged offence under Section 302 of IPC is concerned, there are no eyewitnesses to the incident. Even if the statement of Nethaji is taken into consideration, it is only with regard to abduction of the deceased and not with regard to causing the death of the deceased by the petitioners. Hence, he : 7 : submitted that when the case of the prosecution so far as the alleged offence under Section 302 is concerned, it is based on the circumstantial evidence. Looking to the prosecution materials the prosecution has not made out the case about the involvement of the petitioners in committing the offence. Hence, he submitted, by imposing reasonable conditions the petitioners may be enlarged on bail. 5. Per contra, learned HCGP made the submission that even though there are no eye witnesses to the alleged incident of murder, but the circumstances of the case clearly go to show about the involvement of accused persons in committing the alleged offence. She further made a submission that looking to the statement of Nethaji, who is eye witness to the first incident of assault to the deceased when the deceased was standing along with him wherein he stated that all the three accused assaulted the : 8 : deceased and took him into their Tata Ace vehicle stating that they will kill him. Learned HCGP made the submission that this itself clearly go to show about the involvement of all the three petitioners in committing the alleged offence. Learned HCGP also made the submission that during the course of investigation all the three accused persons gave voluntary statements and as per their voluntary statements the Investigating Officer has arrested the accused and recovered the blood stained clothes belonging to the 1 st petitioner. Hence, she submitted this material clearly go to show the involvement of the petitioners in committing the alleged offence. Hence, she submitted that, these petitioners are not entitled to be enlarged granted with bail. 6. I have perused the averments made in the bail petition, also the FIR, Complaint and other material produced by the petitioner, so also the order : 9 : passed by the learned Sessions Judge, Belagavi, rejecting the bail petition of all the three petitioners. Looking to the complaint averments the father of the deceased is the complainant in this case and he narrated in the complaint about the facts on basis of information given by one Nethaji. Therefore, the complainant is not the eye witness to the incident. Looking to the statements of Nethaji it also goes to show with regard to the first incident i.e. assault and kidnapping the deceased by the petitioners in their Tata Ace vehicle. Therefore, as per the complaint averments and even according to the statement of the alleged eye witness-Nethaji, he is not eye witness to the incident of murder of the offence under Section 302 of the IPC. It is no doubt true that he has clearly stated about the quarrel picked up by the petitioners with the deceased and assaulting him, then taking him into their vehicle. The materials go to show the : 10 : motive as per the prosecution for the petitioners to commit the murder of the deceased that the deceased was having illicit relationship with the wife of the accused No.2/1 st petitioner and the investigation materials also go to show that the blood stained clothes of 1 st petitioner Bhairu has been recovered on the basis of the voluntary statement stated to have been given by the 1 st petitioner. So far as the petitioner Nos.2 and 3 who are A1 and A3 are concerned, there is no such recovery of the blood stained clothes belonging to them. I have also perused the FSL report made over by the learned HCGP. Looking to these materials totally 11 articles were sent to FSL for examination and report. Out of these 11 articles, item Nos.10-one shirt and item No.11-one pant are belonging to the 1 st petitioner/accused No.2. Looking to the analysis of the report of FSL they go to show that out of 11 items : 11 : sent, except item No.2 all the items were stained with blood. It is also mentioned in the opinion column that all the items except item No.11 suits with the human blood. It is also mentioned the blood stained item Nos.1, 4, 5, 6 and 7 belonging to the deceased and item Nos.10 and 11 which were belonging to the 1st petitioner herein were stained with ‘O’ blood group. This prima facie clearly goes to show that at this stage so far as 1 st petitioner is concerned the prosecution has placed materials to show the involvement of the 1st petitioner/accused No.2 in alleged offence of murder punishable under Section 302 of IPC.