Shivanna Naik vs The State of Karnataka

Budihal R.B., J.—This petition is filed by the petitioner-accused No. 2 under Section 438 of Cr.P.C. seeking anticipatory bail, to direct the respondent-Police to release the petitioner on bail in the event of his arrest of the alleged offences punishable under Sections 302, 201 read with Section 34 of IPC registered in respondent Police Station Crime No. 127/2015.

Brief facts of the prosecution case are that complainant is the wife of deceased, deceased was the owner of the tractor, which was attached to Meghana Agro Seeds Private Ltd. Co., run by the owner Mr. Venkatesh Naik. Since the deceased was not punctual, his lorry was detached and accused No. 1 Venkatesh called the deceased to come to Kotturu to discuss the matter. Next day it was informed to Smt. Jyothi-complainant that deceased dead, she in turn lodged complaint registered in UDR No. 18/2015 on 17.07.2015. Subsequently, on 13.08.2015 she lodged another complaint stating that her husband was murdered by the petitioner and another, which is registered in Crime No. 127/2015 for the said offences.

Heard the arguments of the learned counsel appearing for the petitioner-accused No. 2 and also the learned HCGP appearing for the respondent-State.

Learned counsel for the petitioner has submitted that in the UDR complaint it is mentioned that there was a note book by the side of the deceased, wherein it is mentioned that Shivu Naik-petitioner herein, who was working under Venkatesh is responsible for the death. Subsequently, complaint was filed, which was registered in Crime No. 127/2015. It is further mentioned that both accused Nos. 1 and 2 have administered poison and thereafter, they have assaulted the deceased and both are responsible for the death of the deceased. Learned counsel has submitted that there are no direct witnesses so far as assault is concerned and case of the prosecution rests on the circumstantial evidence. Even if, the entry made in the note book is taken to be true for the appreciation of the case, then the offence would be at the most come under Section 306 of IPC and not under Section 302 of IPC. Petitioner is having apprehension of his arrest at the hands of the respondent Police and if arrested unnecessarily he will be kept in jail. He has submitted that petitioner is ready to abide by any conditions to be imposed on him and also ready to cooperate with the investigation machinery in the investigation of the case. Hence, he has submitted to release the petitioner on bail by imposing reasonable conditions.

Per contra, learned HCGP has submitted that the entry in the note book, which was laying by the side of the deceased, clearly shows that Shivu Naik, who is the petitioner herein, who was working under Venkatesh (accused No. 1) is responsible for his death. As per the averments in the second complaint, it is noticed that allegations are made that both accused persons assaulted the deceased only with an intention to escape from the clutches of law, they have administered poison and caused the death of the deceased. So far as the injuries are concerned, at the jaws portion of the deceased there are some injuries, which clearly shows and probabilises the case of the prosecution that forcibly the poison was put in to the mouth of the deceased. The matter is still under investigation, and the final opinion of the doctor is not yet received and at this stage, the petitioner is not entitled for the grant of bail.

I have perused the grounds urged in the bail petition, FIR, complaint and other materials produced along with the petition, so also I have also perused the order dated 28.09.2015 passed in Crl. P. No. 101455/2015 in respect of accused No. 1, who has already been granted bail by the order of this Court.

Looking to the complaint, which was registered in UDR No. 18/2015, it is no doubt true there is mention that as per the prosecution case that in the note book there is a mention that Shivu, a boy, who is working under Venkatesh (accused No. 1), is responsible for his death and subsequently, i.e., on 13.08.2015 nearly after one month, another complaint was filed by the wife of the deceased, wherein allegations are made that both the accused assaulted the deceased and they have also put poison in the mouth of the deceased and caused the death of the deceased and both are equally responsible, hence, action may be taken against them.

So far as the allegation of assault is concerned, even according to the prosecution material there are no eye-witnesses and case of the prosecution rests on circumstantial evidence to that extent. Regarding complaint registered in UDR and the entry in the note book that Shivu, petitioner herein, who is said to be working under Venkatesh (accused No. 1) is responsible for his death, it prima-facie shows that the deceased consumed poison and he expired, even if the evidence is accepted, as it is rightly submitted by the learned counsel for the petitioner at the most the offence comes under Section 306 of IPC to abet the commission of suicide and not the offence under Section 302 of IPC.

Accused No. 1 against whom same allegations are made as per the second complaint, that both the petitioner and accused No. 1 have assaulted the deceased, accused No. 1 has already been enlarged on bail by the order of this Court. Considering all these materials placed on record, I am of the opinion that it is a fit case to exercise the discretion in favour of the petitioner.

Accordingly, petition is allowed. The respondent Police is directed to enlarge the petitioner on bail in the event of his arrest for the alleged offences punishable under Sections 302, 201 read with Section 34 of IPC registered in respondent Police Station Crime No. 127/2015, subject to the following conditions:

"i. Petitioner has to execute personal bond for a sum of Rs. 1,00,000/- and furnish one surety for the like sum to the satisfaction of concerned Court.

ii. Petitioner shall not tamper with any of the prosecution witnesses directly or indirectly.

iii. Petitioner has to make himself available before the IO for interrogation, as and when called for, and to cooperate with the further investigation in the matter.

iv. Petitioner has to appear before the concerned Court within 30 days from the date of this order and to execute the personal bond and the surety bond."