Sri. Varadaraja @ Kavalagundi vs The State

This petition is filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail for the alleged offences punishable under Sections 143, 147, 148, 302 read with 149 of IPC registered in respondent-police station in Crime No. 375/2016.

Heard the arguments of the learned counsel appearing for the petitioner/accused No.1, so also learned High Court Government Pleader appearing for the respondent - State.

I have perused the grounds urged in the bail petition, FIR, complaint and other materials produced in the case, so also decisions relied upon by the learned counsel for the petitioner which is filed along with memo dated 15.02.2018.

The prosecution case in brief is that one Raju is the complainant in this case. It is stated that on 16.08.2016, one Madhu is said to have been murdered by six accused persons named therein. At about 5.00 p.m., on 16.08.2016, the first informant received the call that his son was murdered by all the accused persons by assaulting him with deadly weapons near tea shop of one Manjanna, near I.T. Park in Machenahalli of Shivamogga and that on coming to know of the news, he rushed to the Hospital where he found the dead body of his son. Inquest proceedings was drawn on the dead body of his son on the next day i.e., on 17.08.2016 between 8.30 A.M. and 10.00 A.M. On the basis of the complaint, a case came to be registered for the alleged offences.

Learned counsel for the petitioner submitted that complainant is not an eyewitness and he is a hearsay witness. Though the prosecution claims that there are eyewitnesses to the incident, Taresha who is said to have been all along with the deceased, in his statement, has mentioned that he came to know about the said incident and therefore, counsel submitted that even Taresha is not an eyewitness. So far as Manjanna is concerned, according to the learned counsel, actually he is not an eyewitness. But subsequently he was planted as an eyewitness by the prosecution. He also submitted that the alleged incident took place on 16.08.2016 at 5.00 p.m. and the statement of witnesses were recorded on 19.06.2016, after lapse of 3 days, so also the statement of other witnesses i.e. CWs.10 and 11 were recorded. There is delay which is not explained. Learned counsel also submitted that the other accused have already been released on bail therefore prays to allow the petition and to admit the present petitioner for regular bail since the petitioner is in custody from 1 1/2 years.

Per contra, the learned High Court Government Pleader opposed the petition. He referred to the statement of CW.9 - Manjanna and submitted that his statement clearly goes to show that he is an eyewitness to the incident and he voluntarily states in his statement that he has seen the petitioner assaulting the deceased with the knife and on the basis of voluntary statement of accused, the knife came to be recovered in presence of panch witnesses. There is a prima-facie case made out against the present petitioner and therefore, he is not entitled to be granted bail.

I have perused the grounds urged in the bail petition so also the Post Mortem report. The Doctor noticed five injuries on the dead body of the deceased which are grievous in nature and even as per the opinion of the Doctor, death is due to shock and haemorrhage as a result of stab injuries sustained. No doubt, as per the prosecution there were five injuries on the dead body of the deceased. Out of the five injuries, three injuries were stab injuries. Now the question is which accused assaulted the deceased with such weapon. It is the case of the prosecution that Manjanna, who is the tea shop owner, in whose presence the incident has taken place, is pre-judicial to one of the eyewitness in the said case. His statement came to be recorded on 19.06.2016 after a lapse of 3 days. In this connection, learned counsel appearing for the petitioner relied upon the judgment of Hon'ble Apex Court reported in (2016) 16 SCC 418, wehrein unexplained delay of recording the statement of witness has been discussed by the Hon'ble Apex Court. Learned Counsel took this Court to relevant paragraph No.17 of the said judgment with regard to the voluntary statement and the recovery of the knife. Learned counsel for the petitioner has drawn the attention of this Court to the fact that on the previous day of recovery, the police went to the said place i.e., spot. At that time, though there was an opportunity for the police to notice the knife, it was not seized then, though it was very much alleged to be lying at the said place but subsequently, they went two times to the said place and when elicited, it is stated as per the voluntary statement of the accused No.1, knife came to be recovered. Hence, in this connection, the said submission itself goes to show that it has been planted for the purpose of the prosecution case. Though the prosecution claims that there are four eyewitnesses to the incident but immediately, their statements were not recorded and it was recorded after lapse of three days. Therefore, learned counsel appearing for the petitioner is justified in making the submission at this stage that these eyewitnesses said to have been supporting the prosecution case. As it is submitted investigation is completed and chargesheet is also filed and since from 1 1/2 years the petitioner is in custody, therefore by imposing reasonable conditions he can be admitted to regular bail.

Accordingly, petition is allowed. petitioner/ accused No.1 is ordered to be released on bail for the offences punishable under Sections 143, 147, 148, 302 read with 149 of IPC registered in respondent-police station in Crime No. 375/2016, subject to the following conditions:

Petitioner/accused No.1 shall execute a personal bond for a sum of Rs.1,00,000/- and shall furnish one surety for the likesum to the satisfaction of the concerned Court.

Petitioner/accused No.1 shall not tamper with any of the prosecution witnesses, directly or indirectly.

Petitioner/accused No.1 has to appear before the concerned Court regularly.