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Judgment
Shivashankar Amarannavar, J
This appeal is filed by appellant/Accused No.2 praying to set aside the order dated 15.04.2023 passed in Crl. Misc.No.3006/2023 passed by LXX Addl. City Civil & Sessions Judge, Bengaluru City, (CCH-71), rejecting the bail petition sought in respect of Cr.No.138/2022 Cubbon Park Police Station for the offence punishable under Sections 302, 201, 343, 364, 307, 504, and 506 read with Section 149 of IPC and Sections 3(2)(v) and 3(1)(e) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (referred to as 'SC & ST (POA) Act' for short).
Heard the learned counsel for the appellant and learned HCGP for respondent No.1 - State. On service of notice, respondent No.2 remained absent and unrepresented.
Gist of the prosecution case is that, on 22.12.2022 the ACP of Cubbon Park Sub-Division received anonymous complaint with pen-drive which was registered under application No. Q1PS/PET/GNL-249/2002, who in turn forwarded the said complaint to PI of Cubbon Park Police Station to ascertain the truth of the complaint. Accordingly, the PSI of Cubbon Park Police Station collected information and lodged complaint stating that deceased Sharath Kumar was a resident of Konanakunte village and had borrowed loan from various persons and did not repay the same. Accordingly, the persons who had given the loan to the deceased Sharath Kumar entrusted the work of recovery of loan to accused No.3, who in turn entrusted the recovery to accused Nos.1, 2, 5 and 8. Accused Nos.1, 2, 5 and 8 kidnapped the deceased Sharath Kumar in the car belonging to accused No.10 with the assistance of accused Nos.4 and 6 and he was wrongfully confined in the farm house belonging to accused No.8 for 6 to 7 days and during the said period he was brutally assaulted and caused to death. Thereafter, the accused persons shifted the dead body of the deceased in the car belonging to accused No.9 with the help of accused Nos. 4 and 7 and threw the same in Charmadi Ghat with an intention to cause disappearance of evidence.
Charge-sheet came to be filed against 12 accused persons for the offence punishable under Sections 343, 364, 307, 504, and 506 read with Section 149 of IPC and Sections 3(2)(v) and 3(1)(e) of the SC & ST (PoA) Act. The appellant/ accused No. 2 came to be arrested on 26.12.2022 and he is in judicial custody. The appellant – accused No.2 filed Crl.Misc. No.3006/2023 seeking bail and the same came to be rejected by the impugned order. The appellant/accused No.2 has challenged the same in this appeal.
Learned counsel for the appellant/accused No.2 would contend that no overt act is alleged against the appellant – accused No.2 of assault on the deceased. What is alleged against this appellant/accused No.2 is assisting accused No.1 in kidnapping the deceased and after the murder shifting the dead body and throwing it in Charmadi Ghat. He further submits that the dead body of the deceased has not been terraced and the case of the prosecution based on circumstantial evidence. Accused Nos.3 and 8 have already been granted bail by this Court in Crl.A.No.854/2023 and Crl.A.No.338/2023 and this appellant/accused No.2 is similarly placed that of those accused persons, who have been granted bail. He further submits that nothing has been recovered at the instance of this appellant/ accused No.2. As charge-sheet has been filed, appellant/ accused No.2 is not required for custodial interrogation. He further submits that this appellant/accused No.2 is a handicap and he cannot drive vehicle. Without considering all these aspects, impugned order has been passed. With this, he prayed for allowing the appeal and grant bail to appellant/accused No.2.
Per contra, learned HCGP appearing for respondent No. 1 – State would contend that this appellant/accused No.2 assisted accused No.1 in kidnapping the deceased and thereafter assisted him in shifting dead body and did not reveal commission of the murder to anybody. There is recovery of empty carry bag and Swift car at the instance of this appellant/accused No.2 under mahazars. The offence alleged against accused No.2 is heinous in nature punishable with either death or imprisonment for life. Considering all these aspects, learned Special Judge has rightly rejected the bail petition and there are no grounds for setting aside the impugned order and granting bail to the appellant/accused No.2. With this, he prays for dismissal of the appeal.
Even though the deceased was missing, neither his father nor any of his relatives filed any missing complaint. Case came to be registered on basis of anonymous letter. There is no confirmation of death of the deceased Sharath Kumar, since his dead body is not traced. The only accusation against this appellant/accused No.2 is that he assisted accused No.1 in kidnapping the deceased and after murder by accused No.1 he assisted him in shifting the dead body and throwing it in Charmadi Ghat. There is no overt act alleged against this appellant/accused No.2 of assaulting or killing the deceased. The case of the prosecution is based on circumstantial evidence. Therefore, guilt of the accused has to be proved by establishing each of the circumstances. As charge sheet is filed, the appellant/accused No.2 is not required for custodial interrogation. Without considering all these aspects, the Special Judge has passed the impugned order, which requires interference of this Court. In the result, the following:
ORDER
The Appeal is allowed.
The impugned order dated 15.04.2023 passed in Crl.Misc. No.3006/2023 by LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru,(CCH-71), is set aside. The bail petition of the appellant/accused No.2 in Crl.Misc.No. 3006/2023 stands allowed.
The appellant/accused No.2 is ordered to be released on bail in Crime No.138/2022 of Cubbon Park Police Station subject to the following conditions:
i) Appellant/accused No.2 shall execute a personal bond for a sum of `1,00,000/- (Rupees One Lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.
ii) Appellant/accused No.2 shall not directly or indirectly tamper with any of the prosecution witnesses.
iii) Appellant/accused No.2 shall not indulge in any similar offence.
iv) Appellant/accused No.2 shall attend the Court on all hearing dates, unless exempted, and cooperate in speedy disposal of the case.