Dismissed

Nagesh S/O Yasavant Gayakwad and Anr. v. the State of Karnataka

Karnataka HC14 Feb 2013CRL.P/15106/2013

Case brief

AI extract

What is this about?

High Court at Gulbarga considered a bail petition under Section 439 CrPC for two accused charged with murder. The court rejected bail, finding that witness statements from the petitioners sister and parents corroborated prosecution theory despite earlier inconsistency, rendering reliance solely on extra-judicial confession inadequate.

What did the court decide?

Petitioners bail petition dismissed; bail not granted.

Nagesh S/O Yasavant Gayakwad and Anr. Vs the… — Murder and Culpable Homicide | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 14^TH DAY OF FEBRUARY, 2013

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BEFORE

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION NO.15106/2013

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BETWEEN :

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Nagesh S/o Yasavant Gayakwad, Age: 26 Years, Occ: Agriculture,

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Balesh S/o Yasavant Gayakwad, Age: 24 Years, Occ: Agriculture, Both are Resident of Mulawad, Taluk: Basavana Bagewadi, District: Bijapur. … PETITIONERS

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(By Shri. Shivanand Pattanshetti, Advocate)

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AND:

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The State of Karnataka Represented by Additional State Public Prosecutor, Circuit Bench, Gulbarga. (Through Managuli Police Station) … RESPONDENT (By Shri Sanjay.A.Patil, Additional State Public Prosecutor)

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This Criminal Petition is filed under Section 439 of Criminal Procedure Code by the advocate for the petitioner praying that this Court to grant the regular bail to the petitioners in C.C.No.478/2012, (Managuli Police Station Crime NO.144/2012) pending on the file of JMFC Court Basavana Bagewadi, which is registered for the offence punishable under Sections 302, 201 read with 34 of Indian Penal Code.

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This petition coming on for Orders this day, the Court made the following:

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O R D E R

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Heard the learned counsel for the petitioners and the

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learned Additional State Public Prosecutor.

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The facts briefly stated are as follows:

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It is claimed that there was an unidentified body found on

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the land of the complainant Basappa on 19.8.2012. On information the jurisdictional police embarked on identifying the dead body. One Mallappa Satyappa Gayakwad and Khandoba who were residents of Mulawad village have disclosed that they are the neighbours of one Jayashree wife of Bhimashi Jadhav and the deceased was Bhimashi Jadhav. He was resident of Atalatti and his wife was residing at her parental

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home Mulawad as Bhimashi, was a drunkard and who had been harassing and ill-treating Jayashree and her family members. It transpires that on 18.8.2012, the deceased had come to Mulawad village and he was seen quarrelling with his wife Jayashree. On the basis of this information provided by Gayakwad and Khandoba, the petitioners who are said to be the brothers of Jayashree, were interrogated by the investigating officer. On 13.9.2012 they had disclosed that Bhimashi was harassing their sister Jayashree and her family members. It transpires that Nagesh, had with the butt end of the axe and Balesh, with a piece of fire wood had assaulted Bhimashi. He sustained injuries and collapsed in the house of Jayashree. Thereafter with the assistance of Kushahir, who was the owner of a vehicle called colloquially as a “tom-tom” had been summoned and the dead body was carried away from the house and dumped on the land of the complainant. This sequence of events having been pieced together, Kushahir was taken into custody, he in turn had stated that the sequence of events were

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indeed true and therefore the accused were all chargesheeted for offences punishable the under the several provisions as stated above. Even before the chargesheet was filed the petitioners along with Kushahir had approached the court below seeking bail. While the court has enlarged Kushahir on bail, on the footing that an extra judicial confession cannot take the place of evidence and since he was sought to be implicated only on the basis of an extra judicial confession, having regard to his role in the incident the court below has opined that he was entitled to bail. However, in so far as the petitioners are concerned the court below has taken a different view and rejected their petition. In view of the evidence that was available against them at that point of time and since the matter was under investigation and chargesheet was yet to be filed. But now it transpires that the chargesheet has been filed and it is in that background the present petitioners are before this court.

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The learned counsel for the petitioners would

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reiterate, that the petitioners are sought to be implicated only on the basis of an extra judicial confession that has been extracted from them. If that was good reason to enlarge Kushahir on bail

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the same being negated in so far as the petitioners are concerned is unjust and is counter to the law laid down by the Apex Court. The learned counsel has placed reliance on the decision of the Supreme Court in the case of Jayendra Saraswathi Swamigal V/s State of Tamil Nadu reported in 2005 CrI.L.J.883. For the proposition that Section 10 of the Evidence Act, 1872, cannot be invoked to use statements made by the coaccused against the co-conspirator. And he would submit that this is a settled legal position, which the Supreme Court has reiterated after reviewing the entire case law on the point and would submit that the same ought to apply to the petitioners as well.

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The learned Additional State Public Prosecutor would

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submit that from the material now available, it is found that CWs.18, 19 and 20 who are none other than Jayashree and her parents who are the sister and parents of the petitioners, as well have made statements to reiterate the sequence of events as alleged by the prosecution. This would clearly implicate the petitioners. The contention that an extra judicial confession has been relied upon is no longer the only ground on which the petitioners have been arrayed as the accused. In that light of the matter the question of considering the case of petitioners at this point of time would not arise. The reasoning applied in so far as the bail petition of Kushahir is concerned cannot be extended to the petitioners and would submit that petition be dismissed.

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While learned counsel for the petitioners by way of

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reply would point out that at the earliest point of time the statements of the very CWs.18, 19 and 20 had been recorded. They had not made any allegations in the manner, that they

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have in the subsequent statements that are recorded. The inconsistency in such statements would cause a serious doubt as to the veracity of the same and since the petitioners are not before this court seeking acquittal, at the stage of considering the bail petition, this would be not so material. Having regard to the inconsistency with their earlier statements the police having brought influence on them in extracting such statements cannot be ruled out. Therefore, to act upon the same and to hold that the petitioners may be certainly involved in the commission of the crime would be an unjust conclusion which forecloses the defence of the petitioners. It is further pointed that, in so far as the deceased is concerned he was admittedly a drunkard and was involved in several crimes where he had created several enemies and may have been killed by somebody other than the petitioners. Therefore, to proceed on the basis that the prosecution has made a water-tight case against the petitioners is a presumption that cannot be accepted. Therefore, pleads for grant of bail.

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Given the above circumstances the fact that CWs.18,

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19 and 20 are the sister and the parents of the petitioners would certainly make a difference. They would not be expected to implicate the petitioners, when they were allegedly seeking to protect CW.18 and her interest. As the motive alleged is that they could not stand the manner in which she was being harassed and tortured by the deceased. If, that were so, it is highly doubtful that they would have made such statements, if not by change in their conscience and since the sequence of events had already been pieced together by the prosecution, in the first instance, even before they made the statements. Their statements have only reinforced the case of the prosecution. Therefore, the contentions that the allegations stand on extra judicial confession is not wholly correct. Given the circumstances of the case, the bail petition is rejected.

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Sd/JUDGE

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msr

Nagesh S/O Yasavant Gayakwad and Anr. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Nagesh S/O Yasavant Gayakwad and Anr. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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