Lokesh vs State

K.N. Keshavanarayana, J.—At about 2.45 p.m. on 6.11.2007 near Tempo Stand in front of ING Vysya Bank, S.C. Road, N.R. Colony within the limits of Basavanagudi Police Station, there was an incident of murder in which one Mahadev was done to death on account of stab injuries inflicted by one Ganesh @ Boxer @ Bonda. In respect of this incident one Suresha son of Venkataram who was stated to be an eye-witness made a report to the jurisdictional police based on which the case in Crime No. 181/2007 came to be registered for the offence punishable u/s 302 IPC against said Ganesh and investigation was taken up. During investigation, it was revealed that accused Ganesh came to the scene of occurrence on the scooter ridden by this Petitioner and after commission of the offence, the accused went from the scene of occurrence on the scooter ridden by this Petitioner. During investigation, this Petitioner was produced before the jurisdictional Magistrate since he expressed his desire to make a statement about the incident. On 23.11.2007 his statement was recorded by the learned Magistrate u/s 164 Code of Criminal Procedure Thereafter, on completion of the investigation charge sheet came to be filed against accused Ganesh for the offence punishable u/s 302 IPC and in the charge sheet this Petitioner was cited as CW. 13. During the trial of the case, when the Petitioner was examined as PW.21 resiled from his previous statement recorded u/s 164 Code of Criminal Procedure Therefore, he was declared hostile and he was cross-examined by the learned Public Prosecutor. Thereafter learned Public Prosecutor filed application u/s 308 Code of Criminal Procedure on 15.10.2010 to treat the Petitioner herein as an accused and to try him for the offence punishable u/s 302 IPC on the ground that his evidence before the court is contrary to the condition on which the pardon was given. The said application came to be allowed by the learned Sessions Judge and he was ordered to be treated as an accused and split up charge sheet was directed to be filed against him. Thereafter split up charge sheet came to be filed against him for the offence punishable u/s 302 IPC. Pursuant to the non-bailable warrant issued, the Petitioner herein was arrested and when produced before the learned Sessions Judge, he was remanded to judicial custody. His application filed before the learned Sessions Judge for bail came to be rejected. In the meanwhile, the trial against accused Ganesh ended in conviction and he was sentenced to undergo imprisonment for life. The Petitioner by presenting this petition has sought for the relief of bail.

I have heard the learned Counsel appearing for the Petitioner and the learned Government Pleader appearing for the Respondent - State. Perused the records produced.

It is the submission of the learned Counsel for the Petitioner that there is absolutely no material on record to indicate the complicity of this Petitioner in the alleged commission of the offence and even if his statement u/s 164 Code of Criminal Procedure recorded by the learned Magistrate is accepted as true and correct, he only brought the accused to the scene of occurrence on his scooter on account of threat given to him by the accused Ganesh and therefore he cannot be termed as an accused for the offence punishable u/s 302 IPC. It is also his submission that the Petitioner was never treated as an accomplice nor he was given the pardon as contemplated u/s 306 or 307 of Code of Criminal Procedure, therefore, there are no reasonable grounds to believe that the Petitioner is guilty of the offence punishable with death or life imprisonment as such, the Petitioner is entitled to be enlarged on bail.

Perusal of the records made available prima facie indicates that there was an incident of murder at about 2.45 p.m. on 6.11.2007. In respect of the said incident one Ganesh was tried before the learned Sessions Judge and he was convicted for the aforesaid offence. Even according to the allegations made in the First Information Report, accused Ganesh and this Petitioner came near the scene of occurrence on a scooter and it was said Ganesh who inflicted fatal blow to the deceased Mahadev and after accomplishing the act both of them went away from the place on the same scooter. Even as per the statement of this Petitioner said to have been made before the learned Magistrate which was recorded u/s 164 Code of Criminal Procedure, this Petitioner went near Srinivasnagar Circle on 6.11.2007 to purchase mutton; at that time, accused Ganesh whom he knew since two years, requested him to give a drop to Netkallappa Circle; though initially he refused, accused insisted to drop him near the Circle and also threatened him by showing knife; therefore, he took said Ganesh and when they came near Tempo Stand, Ganesh picked up quarrel with a person who was standing there talking to his friends and committed the acts of assault on the said person; accused Ganesh once again asked him to take him on the scooter; since he refused, accused Ganesh assaulted him on his right shoulder with knife; therefore, he immediately went to his house and out of fear he left the place for few days. According to prosecution, the Petitioner shared common intention with the accused Ganesh and in furtherance of the common intention, he brought the said Ganesh to the scene of occurrence and at the scene of occurrence committed toe acts of assault on the deceased. Therefore, having regard to the materials available on record at this stage, there are no reasonable grounds to believe that the Petitioner is guilty of the offence punishable u/s 302 IPC. The question as to whether the Petitioner was at any point of time granted pardon u/s 306 or 307 Code of Criminal Procedure and whether the prosecution now launched in exercise of power u/s 308 Code of Criminal Procedure is in accordance with law or not, are the matters which are to be considered by the Court before which the case is pending now. Having regard to the facts and circumstances of the case, I find no ground to deny the relief of bail to the Petitioner.

In the result, the petition is allowed. The Petitioner is ordered to be released on bail in C.C. No. 10931/11 on the file of II Additional CMM, Bangalore (Crime No. 181/2007 of Basavanagudi Police Station, Bangalore), subject to the following conditions:

(i) The Petitioner shall execute a personal bond for a sum of Rs. 25,000/- with one surety for the like sum to the satisfaction of the learned Sessions Judge;

(ii) He shall not intimidate or tamper with the prosecution witnesses in any manner;

(iii) He shall appear before the Sessions Court on all hearing dates, without fail and

(iv) He shall not leave the jurisdiction of the concerned Sessions Court without express permission of the Court till the disposal of the case.