Usharani vs State of Karnataka

A.V. Chandrashekara, J.—Petitioner is 1st accused in a criminal case in Crime No. 265/14 on the file of MICO Layout police station, Bengaluru City. After concluding investigation, police have filed charge sheet for the offences punishable under Sections 328, 210B, 302, 201 read with Section 34, I.P.C. She has been in judicial custody since 11 months. In the light of changed circumstances, she has filed one more application under Section 439, Cr.P.C.

Learned HCGP has opposed the bail application on the ground that no good grounds are made out to take a different view from that of the one taken by this court on 5.11.2014 in Crl.P.6126/14, or the view taken in an earlier petition in Crl.P.3449/14 dated 1.7.2014. He has argued that though the case is based on circumstantial evidence, the circumstances are strong enough to link this accused with the murder of her own husband.

The facts leading to the roping of this petitioner as 1st accused in Crime No. 265/14 on the file of MICO Layout police station are as follows:

"a) The allegation against this petitioner is that she murdered her own husband-Muniraju and had taken the assistance of accused Nos. 2 and 3. It is alleged that on 21.4.2014, this petitioner murdered her husband by mixing sedative tablets in buttermilk. On drinking the same, her husband-Mumraju went into deep sleep. Later on she telephoned accused Nos. 2 and 3 to come near her house and with their assistance she killed her husband using a pillow. Later on all the three took the dead body near Appasandra village of Hoskote in an Indica car and threw the dead body there and lit fire by pouring 5 litres petrol.

b) The 2nd accused-Mahesh, it is alleged by the police, that he had illicit contact with this petitioner and was interested in marrying her daughter, Priyanka studying in PES Engineering College, Bengaluru. This was to the liking of her husband-Mumraju and therefore, all of them wanted to eliminate him.

c) The petitioner chose to file a missing complaint to the respondent police on the ground that he was missing According to her, the police did not take any action to find out her missing husband and hence, she chose to file a petition under Article 226 of the Constitution of India in WPHC.72/14. The said petition was contested and ultimately disposed of by a Division Bench of this court on 24.4.2014 holding that this petitioner had misled the police by filing a missing complaint though she was one of the accused in the said case. Therefore the petition was dismissed by imposing punitive cost of Rs. 1,00,000/-.

d) The petitioner filed an application under Section 439, Cr.P.C. before this court in Crl.P.3449/14 when investigation was still in progress and that it would not be proper to interfere with investigation. By that time, the writ petition had been disposed of. Considering that aspect and the fact that the evidence indicated purchase of 5 litres of petrol to burn the body, this court chose to dismiss the petition on 1.7.2014."

After completion of investigation and filing of charge sheet, one more application was filed before this court under Section 439, Cr.P.C. in Crl.P.6126/14, which after contest, came to be dismissed vide order dated 5.11.2014. While dismissing the said bail application, this court has taken the dismissal of WPHC.72/14 as one of the circumstances. What is held by this court is that though the case is based on circumstantial evidence, the circumstances are not so weak to be ignored at that stage. The relevant observation made by this court in Crl.P.6126/14 are found in paragraphs 5 and 6 of the order and it is reproduced below:

"5. It is true that the case is based on circumstantial evidence. The police have collected the call details of mobile phone of the petitioner and have found that just prior to alleged murder of her husband Muniraju, she was in continuous contact with accused Nos. 2 and 3 and it is premature to disbelieve the same. While she was interrogated under section 27 of the Evidence Act, she had confessed to show the place where the dead body was taken and the place where the petrol was poured on the dead body and put on fire. Whether such a circumstance is admissible in evidence is a matter of trial.

Suffice to state that while dismissing Habeas Corpus writ petition, this Court has made an observation that this petitioner has suppressed some material fact about missing of her husband and she being involved as an accused in the said case. In a case like this, party seeking bail must come before the Court with clean hands, since 439 of Cr.P.C. is a discretionary power. In the light of dismissal of Habeas Corpus petition on 24.4.2014 and the circumstances relied upon by the prosecution, it is too premature to disbelieve the circumstance more particularly, in the light of serious allegation made against the petitioner. Considering the circumstances relied on by the prosecution, this is not a fit case to exercise discretion in favour of the petitioner at this stage.

Hence the petition is dismissed."

What is argued before this court by the learned counsel for the petitioner is that being aggrieved by the dismissal of the writ petition filed by her and imposition of punitive cost of Rs. 1,00,000/-, she had approached the Hon''ble Supreme Court in SLP.22722/14 and the said SLP has been disposed of, reducing the cost to Rs. 5,000/- and also expunging the observations made by the Division Bench of this court in WPHC.72/14. The operative portion of the order passed by the Hon''ble apex court in SLP.22722/14 on 28.11.2014 is as follows:

"Delay Condoned

In the circumstances of the case, though the special leave petition is dismissed, the observations made by the High Court in the impugned judgment against the petitioner are expunged. We also deem it appropriate to reduce the costs awarded by the High Court to Rs. 5,000/-."

Therefore it is vehemently argued that the observation made by the Division Bench of this court in WPHC.72/14 has been expunged and therefore this is an added circumstance in favour of the petitioner.

This court is unable to accept the contention of the learned counsel for the petitioner. Dismissal of the writ petition filed by this petitioner was not be-all and end-all to dispose Crl.P.6126/14. This court has already observed that the police have collected call details of the mobile of this petitioner and it is found that just prior to the alleged murder of her husband, she was in continuous contact with accused Nos. 2 and 3 and that it is too early to disbelieve the same. During her custodial interrogation, she had volunteered to identify the place where the dead body of her husband was burnt by pouring petrol by herself and accused Nos. 2 and 3. This court has held that whether such circumstance is admissible or not is a matter of trial and it is too premature to disbelieve the circumstances relied on by the police.

Taking into consideration the circumstances under which the murder of the husband of the very petitioner has taken place and the materials collected by the police, this is not a fit case in which discretion could be exercised at this stage under Section 439, Cr.P.C. No substantial alteration is found to take a different view from that of the one taken on 5.11.2014 in Cd.P.6126/14. Hence the petition is liable to be dismissed.

In the result, I pass the following order:

ORDER

"The petition is dismissed. Since the petitioner is a lady and has been in judicial custody for more than a year, the court to which the matter has been committed, is requested to expedite the matter by framing charges at the earliest. It need not be reiterated that once trial starts, it should be on a day-to-day basis as per the mandate of Section 309, Cr.P.C."