S. Venkatesh vs State of Karnataka

L. Narayana Swamy, J.—Petitioner is accused No. 4 for the offence punishable under Sections 341 , 120B , 143 , 147 , 148 , 149 , 302 and 307 of the Indian Penal Code and under Sections 25 and 27 of the Arms Act, 1959 in a case registered in Crime No. 244 of 2012 by Nelamangala Town Police Station, Bangalore District.

It is submitted that the investigation is complete and charge sheet is filed. It is stated in the charge sheet that this petitioner has used jack spanner to assault on the head and caused crush injury resulting in death of the deceased.

The learned counsel for the petitioner submits that what is referred in the charge sheet is about the using of jack spanner causing crush injury is not correspondingly referred in the post-mortem report. In the post-mortem report produced by both the learned counsel, the injury No. 6, 7 and 8 are the injuries which are caused by using sharp-edged weapon. Admittedly, this petitioner, who according to the investigating officer, has used jack spanner causing crush injury and as per the opinion of the Doctor, the death caused due to shock and hemorrhage consequent to head injuries sustained. It is further submitted that the charge sheet, post-mortem report and the opinion of the Doctor if jointly read, it gives the opinion that the death is attributable to accused No. 1 to 3 who committed the murder and not this petitioner-accused.

The injuries other than 6, 7 and 8 are minor injuries which refer to multiple abrasions measuring in all 3 x 12 inches that could not have been caused by using jack spanner. Under the circumstance, the learned senior counsel submits to grant bail. By referring to the objections filed by the respondent-prosecution the learned Senior Counsel submits that as is stated in paragraph 12 of the petition that the petitioner is a habitual offender, six cases are registered against the petitioner between 2011 and 2014, two criminal cases in Crime No. 266 of 2013 for the offences punishable under Sections 384 , 504 , 506 of the Indian Penal Code and in Crime No. 335 of 2014 for the offences punishable under Sections 504 , 507 , 506 of the Indian Penal Code, the trial failed in Crime No. 266 of 2013 and ended up in acquittal and in Crime No. 335 of 2014, the police have not proceeded against the petitioner on the basis that the charge alleged to have been made against the petitioner as the one managed as an inmate of jail. Under the circumstance, the case of the prosecution is only to influence the Court to reject the bail by submitting that this petitioner has committed an offence even as an inmate of jail. The learned counsel also submits that the petitioner is in custody for more than three years. Other 31 similarly situated accused are enlarged on bail, and this petitioner is also entitled for enlargement on bail, on the ground of parity.

The learned counsel for the respondent files a memo and made available number of documents. It is his principal submission that when there is a conflict between the documentary report and ocular report, ocular report should prevail over the documentary evidence. In support of his submission, the learned Government Pleader referred to the judgment of the Hon''ble Supreme Court in the case of Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Another, and referred paragraph 9 of the judgment. He also referred to another judgment of the Hon''ble Supreme Court in the case of Younus Bin Omer Yafai @ Younus Bhai and Others Vs. State of A.P., . By referring the report from Forensic Science Laboratory dated 5th September 2012, the learned Government Pleader submits that MO.11 refers to a jack spanner which was used for committing the offence. Medical report dated 18th October 2012 has been referred to the extent that there was a bloodstain found on MO.11 and it is the opinion of the investigating officer that the injuries found at No. 1, 2, 3, 4, 5, 9, 11, 12, 13, 14 and 15 in FSL No. 693 of 2012 which might have been caused by MOs. 10 and 11. In the instant case, MO.11 has been used by the petitioner herein. Post-mortem report no doubt discloses that the incise wound referred in Sl. No. 6, 7 and 8 is the cause for death as per the opinion of the Doctor. But that itself is not ultimate and it all depends on the evidential value which carries more weight. The learned Government Pleader referred the evidence of C.W. 1-Ramakrishnappa, C.W. 2-Karayappa, C.W. 4-Vijay Kumar, C.W. 5, Niranjan and other eye-witness. As per their statement, this petitioner has used the jack spanner and in some places the same MO has been referred as rod. C.W. 4 is a gunman, which was deployed to late B.M.L Krishnappa whose evidence carries more value since at his instance, when he opened fire, these accused persons have escaped. As per the statement one Bande Manjunath and other used jack rod on Krishnappa and then he died. Another person referred to the fact that Bande Manjunath, is the petitioner himself. The observation of the Hon''ble Supreme Court while granting or rejecting bail, in the case of PRASANTA KUMAR SARKAR (supra) is that all the factors which are referred at paragraph 9 of the judgment has to be taken into consideration.

Heard both. The charge sheet is filed and it is referred therein that this petitioner has used iron rod. Corresponding to the MO said to have been used by this petitioner, there are no injuries found as referred to in the post-mortem report. The opinion of the Doctor that the death is due to shock and hemorrhage consequent to the head injury sustained, which is to be read along with the nature of the injury sustained. As per the case or the prosecution, this petitioner has used jack spanner which seems heavy in nature. If a blow is given with it, there must have been a crush injury caused on the body. But apart from the injuries referred in the post-mortem report, no corresponding injuries have been made out. As it is submitted, it is the opinion of the Doctor referred to in the post-mortem report and also the opinion of the doctor for cause of death varies from one stage to another. The statement of eye-witness is required to be compared for the purpose of arriving at the conclusion for the purpose of judgment relied upon by the Hon''ble Supreme Court in the PRASANTA KUMAR SARKAR (supra) by referring to the factors at paragraph 9 of the judgment. The same is extracted below:

"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

The statement of eye-witness with regard to this petitioner is that he has used jack rod and committed the offence. Similarly, C.W. 5, who is the gunman of the deceased provided by the Government, also states that this petitioner has given a blow on the head of the deceased by the jack rod. No doubt, this statement of the eye-witness and the injuries referred in the post-mortem report go conflict to each other. Under the circumstance, I take into consideration the factors that are referred by the Hon''ble Supreme Court in the case of PRASANTA KUMAR SARKAR (supra). The nature of offence committed by this petitioner and further the fact that he is a rowdy-sheeter, though two criminal cases ended up in acquittal and in which charge sheet is not filed, but the facts and materials placed before me in this case, I am not inclined to grant bail. Accordingly, petition rejected.