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Judgment
H.S. Kempanna, J.—The petitioners, who are arrayed as A.1 to A.3 in S.C. No. 66/2013 on the file of the I Addl. Sessions Judge, Chikkamagalur, registered for the offences under Sections 307, 324, 326, 302, 114 r/w. 34 of IPC and under Sections 25, 27 and 30 of the Indian Arms Act, 1959, are before this Court praying for enlarging them on bail. It is the case of the prosecution, there is Government land measuring about 1 acres 3 guntas situated adjacent land to the land of the accused at Donagoodu, Uduse village, coming within the jurisdiction of the respondent/police. It is the case of the prosecution, the villagers and Kiragunda Grama Panchayath within whose jurisdiction this property comes had decided to build a community hall in the said Government land. It is also the case of the prosecution, the accused in the case had encroached upon three guntas out of the said Government land about 10 years ago. In respect of the same, there were quarrels between the two i.e. the accused on the one hand and the villagers on the other hand. The villagers were requesting the accused to give up that three guntas of land for enabling to put up community hall in the government land. The accused had not acceded to their request.
Such being the position, on 11.2.2013 the villagers of Donagoodu, Uduse village convened a Panchayath in the morning and decided to request the accused to vacate three guntas of land which is encroached upon by them for putting up community hall. Accordingly, they all went near the house of the accused, which is situated on the out skirt of the said village. The villagers on reaching the house of the accused, according to the prosecution, the accused came out of the house armed with a DBBL gun, club and sickle. According to the prosecution, A.1 armed with DBBL gun, A.2 with club and A.3 with sickle. After the villagers went near the house of the accused among the villagers, first one Sudeep - C.W. 3 seeing the gun in the hands of A.1 advanced towards him to snatch the same. At that juncture, A.2 assaulted the said C.W. 3 with club on his head. On account of the same, he fell down. Thereafter, C.W. 2 who was present at the place advanced towards A.1 to snatch the gun. At that juncture, A.2 took the sickle which was in the hands of his wife A.3 inflicted injury on the left hand of C.W. 2. Immediately, thereafter, C.W. 2 took to his heels from the said place. It is at that juncture, the deceased Jeevan proceeded ahead to snatch the gun from A.1. Seeing the same, A.3 - his mother exhorted and told A.1 to open fire and in response to the same, A.1 opened fire with DBBL gun which was with him and shot landed on the chest of the deceased, on account of which he sustained injury and fell down at the spot. Seeing the said shot fired at the deceased, the villagers who had come near the house of the accused having become scared took to their heels. But among the said villagers, the blood relatives of the deceased namely, C.W. 1, 16 and others namely, C.W. 17, his wife - C.W. 18 fetched the car of C.W. 19 who was also present at the said place and removed the deceased Jeevan to the hospital at Moodigere. On reaching the hospital the deceased was declared having been brought dead by the medical officer. Thereafter, C.W. 1 proceeded to Gonibeedu police station and filed his complaint narrating the occurrence, on the basis of which, case came to be registered, investigation was taken up. During the course of investigation, these accused were arrested on 11.2.2013 and since then they are in custody. Hence, they have filed the present petition praying for enlarging them on bail as their request is rejected by the learned Sessions Judge.
Mr. C.H. Hanumantharaya, learned counsel for the petitioners contends that the material now on record discloses the accused in exercise of right of private defence of the person and property have acted, which has resulted in causing injuries to C.W. 2, 3 and the death of deceased -Jeevan. He submits, according to the prosecution, the Government land measuring 1.3 guntas situated adjacent to the land of these accused was ear marked by the panchayath for building community hall. Investigating agency has made a request to the panchayath to furnish the copy of the resolution, but the concerned panchayath, namely, Kirugunda Grama Panchayath coming within the jurisdiction of Donugodi Village, have given an endorsement/reply letter stating that there is no such resolution passed by the grama panchayath. He contended, therefore, the allegation of the prosecution that the land had been ear marked for building community hall and to that effect the resolution has been passed by the panchayath, cannot be believed. He further contend the correspondence made by the Investigating Officer reveals a galata has taken place in front of the house of the accused No. 1, that would indicate the accused in the said galata in exercise of the right of private defence of person and property have caused injuries to C.W. 2, 3 and also the death of deceased - Jeevan. If that is so it cannot be said that they have committed the offence punishable u/s 302 of IPC at this stage. He further contends the spot panchanama drawn up in the case reveals glass panes of the windows of the house of the accused had been smashed. The car which had been parked near the house of the accused had been damaged on its back side, i.e., on the dickey portion and further the fire arm, namely, BBML gun club has been found broken at the said place. That wound indicate villagers must have attacked the accused and in retaliation to it the accused have resorted to assault the villages, in which C.W. 2 and 3 have sustained injuries and the deceased has been shot dead. Therefore, that would further fortify the case of the accused that in exercise of right of private defence of person and property they have committed this offence. Therefore, by any stretch of imagination it cannot be said that the accused have, in the circumstances, have committed the offence punishable u/s 302 IPC.
He further submitted so far accused No. 3 is concerned, she is a lady aged 60 years. The overt act attributed to her is when the villagers came near the house she came out along with accused No. 1 and 2 armed with sword. The statements of the eye witnesses to the occurrence does not reveal that she has wielded that weapon on any of the villagers who had come near the house, much less on C.W. 2, 3 or the deceased. According to the prosecution, the sword which was in her hand was snatched by her husband for assaulting C.W. 2. The other overt act attributed to her is when the deceased advanced towards her son accused No. 1 to snatch the gun she exhorted and told her son to open fire and in response to the same accused No. 1 has opened the fire. Having regard to these overt acts attributed to this accused No. 3 and taking into account she being a lady aged about 60 years, in view of proviso to Section 437 of Cr.P.C. she be released on bail.
In so far as accused No. 1 and 2 are concerned, he submits all the accused are entitled to be released on bail having regard to the facts of the case, in view of they having acted in exercise of their private defence of person and property. He also submitted that the accused are in custody since 11.02.2013. Final report has been filed and case is now pending before Sessions Court, under these circumstances, the accused be released on bail.
Per contra, the learned HCGP contended the material on record reveals these accused apart from assaulting C.W. 2 and 3 have fired at deceased - Jeevan, when the villagers had gone near the house of the accused to request them to give up encroached land of 3 guntas out of 1.3 guntas of Government land. They are not the aggressors, it is the accused who on seeing these villagers going near their house have committed the offence. He further submitted drawing my attention to the statement of C.W. 2, on that day morning it is on the invitation of the accused No. 2 they had gone near the house of the accused to deliberate on the issue of vacating the encroached three guntas of land and therefore, under these circumstances, since the accused have indulged in causing injuries to C.W. 2, 3 and murder of deceased - Jeevan, which is also fortified from the eye witnesses account of C.W. 1 to 12, in the circumstances, since prima facie case is made out the accused are not entitled to be released on bail.
Sri Lokanath. K., learned counsel who has entered appearance on behalf of the Complainant supporting the submission made by the learned HCGP contended since at this stage a prima facie case is made out against all the accused, having regard to the material now on record, none of the accused are entitled to be released on bail. Hence, the petition be dismissed.
After hearing the learned counsel for petitioner, learned HCGP and also learned counsel for original Complainant, Sri C.H. Hanumantharaya, learned counsel submitted that he would not press the petition of accused No. 1 and 2 at this stage, hence it be dismissed as not pressed. However, in respect of accused No. 3 he submitted having regard to the overt act attributed to her, the age and she being a lady, her request be considered by virtue of proviso to Section 437 of Cr.P.C. The material now on record reveals when the villagers went near the house of accused, accused No. 3 came out of the house along with her husband - accused No. 2 and her son-accused No. 1, armed with sword. She has not inflicted any injuries with the said sworn either on C.W. 2, 3 or deceased - Jeevan. The statement of C.W. 2 reveals that when he advanced to snatch the gun from accused No. 1, accused No. 2 took sword which was in the hands of accused No. 3, his wife and assaulted on his head, likewise, it is the statement of other eye witnesses in the case. It is not their case that accused No. 3 handed over the sword to her husband and thereafter accused No. 2 assaulted. Nextly, when the deceased advanced to snatch the gun from the hands of accused No. 3, she is alleged to have exhorted and told her son to open fire. At that point of time accused No. 1 had opened fire at the deceased - Jeevan which has resulted in his death. Having regard to these materials on record and taking into consideration of the fact that accused No. 3 is aged lady of 60 years, by virtue of what is contemplated under the proviso to Section 437 of Cr.P.C. and taking into account the back ground in which occurrence has taken place and as she is in custody since. 11.02.2013, in the circumstances, I do not find any justification to decline the request of the accused No. 3. Accordingly, I proceed to pass the following order:
ORDER
The petition is allowed in part.
The petition of petitioners No. 1 and 2, who are accused No. 1 and 2, is dismissed as not pressed.
The petition of petitioner No. 3, who is accused No. 3, is allowed. She is ordered to be released on bail on her executing a personal bond in a sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the trial judge subject to the following conditions:--
She shall not tamper with the prosecution witnesses.
She shall appear before the Court on all dates of hearing.