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Vithal S/o Devayya Guttedar And Ors v. The State Through Kembhavi P.s

Vithal S/o Devayya Guttedar And Ors v. The State Through Kembhavi P.s

(High Court Of Karnataka (circuit Bench Of Kalaburagi))

CRIMINAL PETITION No.201368/2021 | 25-10-2021

1. This petition is filed under Section 439 of Cr.P.C. by accused Nos.2 and 3 to enlarge them on bail in Crime No.176/2020 of Kembhavi Police Station, District Yadgiri registered for offences punishable under Sections 341, 302, 109 R/w Section 34 of IPC.

2. Heard the learned counsel for petitioners and the learned High Court Government Pleader for respondent-State.

3. The factual matrix of the case is that the incident has taken place on 08.08.2020 and hence complaint was given against the accused Nos.1 and 2 because they were having ill-will against the deceased. On 25.11.2020, accused Nos.1 and 2 came in their vehicle cruiser jeep bearing registration No.KA-15/AM-2049 and hit the two wheeler on which the deceased was riding. As a result, the deceased fell down from the two wheeler and immediately accused No.1 brought the machete from his vehicle and when the deceased tried to escape from the spot, the petitioner No.1 who is arrayed as accused No.2 held him and at that time, accused No.1 who brought the machete told accused No.2 not to leave him, suddenly with the help of said machete, accused No.1 inflicted injuries on the vital part of his head, as a result, he fell down at the spot. The allegation against the petitioner No.2 who has been arrayed as accused No.3 is that he instigated accused No.1 to eliminate the deceased.

4. Learned counsel for petitioners would vehemently contend that first petitioner who has been arrayed as accused No.2 is not at all involved in any crime and only allegation against him is that he was holding the victim when the accused No.1 inflicted injury. He further contended that the petitioner has been in custody from the last November-2020 and investigation has been completed and there is no need of custodial trial. Hence, he contended that the petitioner may be enlarged on bail.

5. The learned counsel for the petitioner would contend that petitioner No.2 who has been arrayed as accused No.3 is not present at the spot and only allegation against him is that he called the accused No.1 over the phone and instigated him to commit the murder of the deceased.

6. Per contra, learned High Court Government Pleader would submit that there was a prior ill-will between the deceased and accused Nos.1 and 2 and both of them committed murder using deadly weapon like machete and the deceased died on the spot. Before committing the murder, they came in a jeep and caused the accident, when the victim was proceeding on two wheeler and hence, it is clear that there was premeditation between the accused Nos.1 and 2 to eliminate the deceased.

7. Having heard the learned counsel for the petitioners and learned High Court Government Pleader for the State and on perusal of the records, it is evident that a case was registered against accused Nos.1 and 2 in connection with earlier incident dated 08.08.2020. The main contention of the learned High Court Government Pleader for the State is that due to prior enmity between accused persons and deceased, life of deceased was taken away. No doubt, there is allegation that he held the victim when the deceased tried to escape from the spot and in the meanwhile, accused No.1 who brought the machete inflicted the injury on the vital part of the body. Hence, it is clear that both accused Nos.1 and 2 have participated in taking the life of the victim. Whether they were having intention to take away the life or not, is a question of trial. Merely because the accused No.2 was holding the victim and accused No.1 inflicted injury, cannot be a ground to grant him bail. Taking note of the common intention, I do not find any merit in the petition filed on behalf of accused No.2 to exercise discretion under section 439 of Cr.P.C., since he held the deceased when he tried to escape from the clutches of the accused.

8. However, the allegation made against accused No.3 is that he has only instigated accused No.1 over phone and he was not present at the spot of incident. When such being the facts and circumstance of the case, the only offence invoked against accused No.3 is under section 109 r/w section 34 of IPC. Hence, it is fit case to grant bail to accused No.3 i.e., petitioner No.2 herein.

9. In view of the discussion made above, I pass the following:

ORDER

The bail petition of petitioner No.1/accused No.2 is rejected.

The bail petition of petitioner No.2/ accused No.3 is allowed. Petitioner No.2 / accused No.3 shall be enlarged on bail in Crime No.176/2020 of Kembhavi Police Station, District Yadgiri registered for offences punishable under Sections 341, 302, 109 r/w Section 34 of IPC, subject to following conditions:

(i) The petitioner No.2 shall execute his personal bond for a sum of ₹1,00,000/- (Rupees One Lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner No.2 shall not indulge in tampering the prosecution witnesses.

(iii) The petitioner No.2 shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The petitioner No.2 shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.

Advocate List

  • SRI SIDRAMREDDY VENKANNA PARADDY, ADVOCATE

  • SRI GURURAJ V. HASILKAR, HCGP

Bench
  • HON'BLE MR. JUSTICE H.P.SANDESH
Eq Citations
  • LQ/KarHC/2021/8117
Head Note

A. Criminal Trial — Bail — Case of murder — Allegation that accused Nos.1 and 2 came in their vehicle cruiser jeep and hit the two wheeler on which the deceased was riding — As a result, the deceased fell down from the two wheeler and immediately accused No.1 brought the machete from his vehicle and when the deceased tried to escape from the spot, the petitioner No.1 who is arrayed as accused No.2 held him and at that time, accused No.1 who brought the machete told accused No.2 not to leave him, suddenly with the help of said machete, accused No.1 inflicted injuries on the vital part of his head, as a result, he fell down at the spot — Held, both accused Nos.1 and 2 have participated in taking the life of the victim — Merely because the accused No.2 was holding the victim and accused No.1 inflicted injury, cannot be a ground to grant him bail — Taking note of the common intention, I do not find any merit in the petition filed on behalf of accused No.2 to exercise discretion under S. 439 CrPC, since he held the deceased when he tried to escape from the clutches of the accused — Penal Code, 1860 — Ss. 302/34 or Ss. 302/109 r/w S. 34 — Bail — Criminal Procedure Code, 1973, S. 439 B. Criminal Trial — Bail — Case of murder — Allegation that petitioner No.2 who has been arrayed as accused No.3 is that he instigated accused No.1 to eliminate the deceased — Held, when such being the facts and circumstance of the case, the only offence invoked against petitioner No.2 herein is under S. 109 r/w S. 34 IPC — Hence, it is fit case to grant bail to petitioner No.2