Allowed

Parasappa S/O Hanamanth Ramaswami v. State of Karnataka

Karnataka HC18 Mar 2021CRL.P/100473/2021

Case brief

AI extract

What is this about?

Criminal Court of Dharwad granted regular bail to a petitioner accused under Section 439 Cr.P.C., relying on the principle of parity as another co-accused had already obtained bail. The Court held that apprehension of risk could be managed through bail conditions despite delay in FIR registration.

What did the court decide?

The petitioner is enlarged on bail subject to a personal bond of Rs.1,00,000 with two sureties for similar sums and conditions regarding non-commission of offences and ensuring prosecution witnesses.

Parasappa S/O Hanamanth Ramaswami Vs State of… — Murder and Culpable Homicide | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^th DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL PETITION No.100473/2021

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BETWEEN:

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PARASAPPA S/O HANAMANTH RAMASWAMI, AGE: 34 YEARS, OCC: COOLIE, R/O; AMARAVATI-587118, TQ: HUNGUND, DIST: BAGALKOT.

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…. PETITIONER

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(BY SRI:NEELENDRA D. GUNDE, ADV.)

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AND:

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STATE OF KARNATAKA, BY HUNGUND POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGHT COURT BUILDING, DHARWAD-580001.

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.... RESPONDENT

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(BY SRI.RAMESH B. CHIGARI, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF Cr.P.C. SEEKING TO GRANT HER REGULAR BAIL IN CRIME NO.140/2019 OF HUNGUND POLICE STATION REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 201 READ WITH 34 OF IPC PENDING BEFORE II ADDL.DISTRICT AND SESSIONS JUDGE, BAGALKOT IN S.C.NO.48/2020.

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THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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Petitioner/accused No.1 is before this Court seeking grant of regular bail under Section 439 of Cr.P.C. in Crime No.140/2019 of Hungund Police Station, initially registered for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘the IPC’ for the sake of brevity), against accused No.1 on the basis of the first information lodged by the first informantSmt.Kantamma Bhovi.

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The brief facts of the case are that, UDR No.9/2019 under Section 174(C) of Cr.P.C. was registered in Hungund Police Station, on the basis of the report submitted by the informantSmt.Kantamma Bhovi regarding the unnatural death of her son. She has stated that her son-Subhash Bhovi died in a suspicious manner in the intervening night of 30.04.2019 / 01.05.2019 between 22 hours

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to 26 hours. Therefore, she requested the police to register the case and to find out the reason for the death. Accordingly, the police registered the case and took up investigation in light of her suspicion.

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Subsequently on 22.11.2011, the said Smt.Kantamma lodged the first information with the police against accused Nos.1 and 2 stating that accused No.2 is the wife of deceased-Subhash Bhovi and their marriage had taken place about 13 years back. About three months after their marriage, accused No.1 developed illicit relationship with accused No.2 and after coming to know about this fact, there was frequent quarrel between the deceased and accused No.2. Deceased used to beat accused No.2 in this regard. The informant stated that accused Nos.1 and 2 were advised by the elders in the village, but in spite of that, they have not corrected their behavior.

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It is stated that on 30.04.2019, the deceased-Subhash Bhovi, who was sleeping in his house, had not got up in the morning. Subsequently,

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he was found dead in his house in an unnatural manner. She noticed abrasion over his neck and stomach, but however, subsequently she came to know that accused No.1 had stated with CW11-Vinod Badiger that he will cause the death of deceasedSubhash as he is the stumbling block in his relationship with accused No.2. Further CWs.13 and 14 who are the children of the deceased have also stated that on the date of incident, they had seen accused No.1 in the house, who was strangulating the neck of the deceased, while accused No.2 was holding the legs of the deceased. Further, they have also stated that accused No.2 had threatened them not to reveal these facts to anybody else. The informant also stated that she came to know from Vinod Badiger and CW12-Ningappa Gonal that they had seen accused No.1 near the house of the deceased on the date of incident. Accused revealed about the commission of offences with CW11-Vinod Badiger. As per the opinion of doctor, deceasedSubhash died due to a sphyxia secondary to

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compression over neck . In view of these materials, the informant stated that it was accused Nos.1 and 2, who caused the death of her son-Subhash Bhovi. Therefore, she requested the police to register the case against the accused. Accordingly, the police registered the case against the accused and took up investigation. It is stated that now the investigation is completed and charge sheet is already filed.

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Heard Sri.Neelendra D. Gunde learned

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counsel for the petitioner and Sri.Ramesh B. Chigari learned High Court Government Pleader for the respondent-State. Perused the materials on record.

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Learned counsel for the petitioner

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submitted that the petitioner is arraigned as accused No.1. He was apprehended on 23.11.2019 and since then he is judicial custody. There is delay in lodging the complaint. As the death of deceased was on the intervening night on 30.04.2019 and 01.05.2019. But the first information came to be lodged on 22.11.2019 i.e., almost six months thereafter. Moreover, the so called opinion of the doctor

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regarding the cause of death was dated 22.10.2019, whereas the first information was lodged after about

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a month. The so called statements of the eyewitnesses cannot be believed, as there is inordinate delay and the statements are unnatural. There is absolutely no material to connect the petitioner to the offences in question. Even otherwise he is in judicial custody since 23.11.2019. The investigation is already completed and therefore his detention in custody would amount to pretrial punishment.

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Learned counsel further submitted that accused No.2, against whom similar allegations are made, is already enlarged on bail by this Court vide order dated 15.02.2021 passed in Criminal Petition No.100272/2021. Therefore, the present petitioner is also entitled to be enlarged on bail on the principle of parity. The petitioner is the permanent resident of the address mentioned in the cause title to the petition and is ready and willing to abide by any of

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the conditions that would be imposed by this Court. Therefore, he prays for allowing the petition.

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Per contra , learned High Court Government Pleader opposing the petition submitted that serious allegations are made against the petitioner for having committed the offences without any basis. There are strong prima facie materials against the present petitioner who is the main accused. CWs.13 and 14 are the eye witnesses, who have given their statement. CW12 states regarding the motive for accused No.1 to commit the murder and both CWs.12 and 13 have seen accused No.1 near the house of deceased on the date of incident. Accused No.1 has given extra judicial confession regarding commission of the offences with CW11-Vinod Badiger. These materials cannot be ignored at this stage. Since there was delay in getting medical opinion and also in coming to know about the facts from CWs.11 to 14, there was delay in lodging the first information. However, the police had registered UDR No.9/2019, immediately after the death of deceased-Subhas.

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Under such circumstances, it cannot be said that there was inordinate delay in setting the law into motion. Learned High Court Government Pleader also contended that the petitioner being accused No.1 is the main accused who caused the death of deceased, even as per the statement of eyewitness. Under such circumstances, no parity can be applied to the present petitioner and he is not entitled for grant of bail and prays for dismissal of the petition.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arises for my consideration is:

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“Whether the petitioner is entitled for regular bail under Section 439 of Cr.P.C.?

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My answer to the above point is in the

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‘Affirmative’ for the following:

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REASONS

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The facts of the case as narrated above would not call for re-iteration. Immediately, after

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the incident i.e., the death of Subhash Bhovi, the informant being the mother of deceased-Subhash, reported about the unnatural death and UDR No.9/2019 was registered with Hungund Police. Thereafter on 22.10.2019, the opinion of the doctor regarding the death of deceased was issued. According to the opinion of the doctor, the death of deceased was due to a sphyxia secondary to compression over neck . It is only thereafter, the informant lodged the first information against accused Nos.1 and 2, specifically stating that she came to know from CWs.11 to 14 regarding the involvement of the accused. Whether the inordinate delay is properly explained or not has to be

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considered by the Trial Court at the time of full fledged trial. At this stage, it can be said that sufficient prima facie materials are placed before the Court to constitute the offences as alleged by the prosecution. However, admittedly, investigation is already completed and the charge sheet is also filed. It is not in dispute that accused No.2, who is the

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partner in the commission of offences, is already enlarged on bail by this Court in Criminal Appeal No.100272/2021 vide order dated 15.02.2021. It is not in dispute that the State has not challenged the said order passed by this Court. Under such circumstances, I do not find any reason to deny the benefit of parity in favour of the present petitioner. The apprehension expressed by the learned High Court Government Pleader can be taken care of by imposing suitable conditions. Therefore, I am of the opinion that the present petitioner may be enlarged on bail subject to conditions. Hence, I answer the above point in the Affirmative and proceed to pass the following:

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ORDER

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The petition is allowed.

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The petitioner/accused No.1 in Crime

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No.140/2019 of Hungund Police Station is ordered to be enlarged on bail subject to following conditions:

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i. He shall execute personal bond for a sum of Rs.1,00,000/with two sureties for the likesum.

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ii. He shall not commit similar offences.

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iii. He shall not threaten or tamper prosecution witnesses.

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iv. He shall mark his attendance before the Investigating Officer on 1^st and 15^th of every month.

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v. He shall appear before the Investigating Officer or the Court as and when required.

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Sd/JUDGE

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KGK

Parasappa S/O Hanamanth Ramaswami v. State of Karnataka

Case brief

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Parasappa S/O Hanamanth Ramaswami v. State of Karnataka

Case brief

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