Govind and Others vs The State of Karnataka

G. Narendra, J.—Heard the learned counsel for petitioners and the learned High Court Government Pleader for respondent - State.

Crl. P. No. 100805/2015 is preferred by accused Nos. 1 to 4 in Crime No. 51/2015 while Crl. P. No. 100806/2015 is preferred under Section 438 of Cr.P.C. by accused No. 5 in respect of the same crime number. Both the petitions are taken up together, heard and disposed of by this common order.

The allegation by the de facto complainant is that she is the wife of the deceased and that she and herself and her husband are residents of Amalazari village and about four years back they had both shifted to Girisagar village. She has further stated that the deceased used to visit the native village quite often and he would stay there for 15 - 20 days at a time and that on the date of the incident he had gone to Amalazari village, wherein he is said to have contacted the complainant''s sister''s husband [brother-in-law] over mobile phone a few times.

It is further alleged by the complainant that on the intervening night of 10.04.2015 at about 12.30 a.m. one Bhimappa a relative had come and informed the complainant that her husband had been assaulted by the accused and that while being shifted to hospital at Bilagi he has succumbed to his injuries. He further states that she was informed by her relative Kamalavva that the deceased is alleged to have committed rape upon the mentally unsound sister of accused No. 1 and that during the commission of the act the mother of mentally retarded victim is supposed to have gone and knocked the door whereupon it is alleged that the deceased escaped from the place and went and hid himself in the attic of the relatives house. It is submitted that thereafter the accused family on gaining entry into the room are said to have come to know about the heinous crime committed by the deceased. Whereupon they are said to have charged to the place where the deceased was hiding and have forced open the door of the said house and have gone to the attic where the deceased was hiding and pulled him out and are alleged to have started beating him with clubs and stones and they have dragged him to the front courtyard of the said house and continued assaulting him even thereafter. It is further alleged by the complainant that when she visited the hospital at about 1.30 a.m. she found that deceased had been severely assaulted upon his head and there were bruise marks and contusions all over the body, being proof of the murderous assault upon her husband. She has further stated that he has been assaulted with the intention of committing his murder. On these allegations, the respondent police have registered the Crime No. 51/2015 for the offences punishable under the provision of Sections 143, 147, 148 and 302 read with Section 149 of I.P.C.

The counsel for the petitioners would submit that this is not a case of murder and it would fall within the exceptions provided under Section 300 of Cr.P.C, and that the act committed by the petitioners, even assuming for arguments sake that the petitioner had indeed committed the act, the same would come within the exception to Section 300 of Cr.P.C. He would further argue that the complainant has to be disbelieved because she is a hearsay complainant and that even as per the complaint she has stated that the deceased was assaulted by the villagers, and hence, the complaint as against these petitioners alone is motivated by caste bias and he would point out that all the accused belong to same caste.

He would take this Court through the provision of Section 300 of Cr.P.C. and also took the Court through the complaint dated 10.04.2015 and the remand application dated 11.04.2015.

Per contra, the learned Government Pleader would submit that the contention of the petitioners is wholly without substance and that the murder is a premeditated act and he would also rely upon the pleadings of the remand application itself to demonstrate a case of murder against the petitioners. He would further submit that this is not a case which falls within the exceptions of Section 300 of Cr.P.C. and it is a clear cut case of murder without there being any sudden or grave provocation nor is it committed in the act of private self defence, and hence, he would submit that the petition deserves to be rejected.

The gist of the arguments put forth by the petitioners'' counsel is that the victim, who is the sister of accused No. 1 is a person of unsound mind and in fact she has been referred to Doctors and it has been assessed that her I.Q. is of a child aged about 8 years. It is also stated in the report that she is reliant upon family members to accomplish her daily chores. Though she is aged about 20 years she does not easily comprehend and that the mental faculties are that of a eight year old child. He would submit that the deceased knowing fully well about the mental faculties of the victim has deviously attempted and committed rape on a person of unsound mind. He would point that the deceased is aged about 50 years, whereas the victim is aged hardly about 20 years and is of the deceased daughter''s age. He would take the Court through the remand application where it is stated as under -

A reading of the above would show that when the accused was committing the heinous act the mother of the victim is supposed to have come and knocked on the door. Whereupon the deceased got scared and is said to have escaped from the said place and is said to have gone and hidden himself in the attic of the complainant''s ancestral house. It is stated that the accused forced open the door and entered into the house and then proceeded to the attic where the complainant''s husband was hiding and they pulled him out and started assaulting him and continued the assault while they dragged him to the front courtyard and it is stated that the first three accused along with the accused No. 4 and accused No. 5 committed the assault. It is stated that her husband was assaulted with stones, clubs and hands and he was murdered by the accused. The narration in the complaint and the remand application relied upon the petitioner''s counsel do not reveal any circumstances, which could be construed as an exception as set out under the provision of Section 300 of Cr.P.C. Further the petitioner''s counsel has also relied upon the judgment of the Apex Court, wherein the Apex Court while dealing with the right of private defence has been pleased to observe as under :

"39. The legal position which has been crystallised from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor; Alingal Kunhinayan v. Emperor Ranganadham Perayya.

In Raghavan Achari v. State of Kerala this Court observed that : (SCC p. 721, para 8)

"8....... No court expects the citizens not to defend themselves [especially] when they have already suffered grievous injuries."

A reading of the same would show that the Apex Court has upheld a violence against an aggressor. It has said that no citizen is expected to behave like a rank coward. The situation as narrated in the complaint and remand application do not describe such a situation. It is seen that the deceased was in fact trying to avoid the accused and he had run away from the spot and had also hidden himself and it is the accused, who have pounced upon him and assaulted him resulting in his death. The petitioner''s counsel would also submit that it was not the intention of the petitioners to cause death, and hence, it cannot be treated as murder under the provision of Section 300 of Cr.P.C. The arguments has no legs to stand upon in view of the description of the assault carried out by the petitioners. It has been specifically alleged that he has been assaulted on the head and body with clubs and stones. Any prudent person will arrive at a conclusion that an assault with clubs and stones could lead to death. That being the case, prima facie, the argument put forth by the petitioners'' counsel is unacceptable and is accordingly rejected. It is seen that it is not a case of private defence where the deceased has been the aggressor. In fact the deceased has been cowering in fear and he has tried to escape from the aggressors i.e., the petitioners herein. The petitioners have mounted a deliberate attack which has ultimately resulted in his death. Mere time lag in the pronouncement of death i.e., of about two hours or so cannot be a mitigating factor for the purpose of consideration of the bail petition. Accordingly, this Court is of the opinion that the Crl. P. No. 100805/2015 filed under Section 439 of Cr.P.C. is liable to be rejected and accordingly the petition is rejected as being devoid of merits.

It is also alleged by accused No. 5, who is a petitioner in Crl. P. No. 100806/2015, that his name is not found in the F.I.R. It is a case of the respondent that accused Nos. 4 and 5 have been identified in the further statement and the further statement of the complainant is also corroborated by three eye witnesses, who have specifically stated that accused No. 1 has assaulted the deceased all over the body with club and the other accused persons have assaulted the deceased with stones. In view of the above, this Court is of the opinion that a prima facie case is made out, and hence, Crl. P. No. 100806/2015 filed under Section 438 of Cr.P.C. praying for enlarging the petitioner on anticipatory bail deserves to be rejected and is accordingly rejected.

The observation regarding the merits of the case made hereinabove are made for the limited purpose of considering the bail application only and the trial Court shall not be influenced by any of the above observation and shall independently consider and dispose of the case on merits.