Dismissed

Kendanayaka v. the State of Karnataka

Karnataka HC6 Nov 2024CRL.P/11501/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka rejected a successive bail petition of an accused charged with murder. The court held that the gravity of the offence, confirmed by medical and FSL evidence, precluded bail despite hostile witnesses, while directing the trial to conclude within six months.

What did the court decide?

Criminal petition rejected; Trial Court directed to conclude trial within six months.

Kendanayaka Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE H.P.SANDESH

¶7

CRIMINAL PETITION NO. 11501 OF 2024

¶8

BETWEEN:

¶9

KENDANAYAKA S/O LATE DYAVNAYAKA AGED ABOUT 46 YEARS R/AT DHARAMAPURA VILLAGE HUNSUR TALUK MYSURU DISTRICT-571 105.

¶10

…PETITIONER

¶11

(BY SRI. LETHIF B., ADVOCATE)

¶12

AND:

¶13

THE STATE OF KARNATAKA

¶14

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

¶15

BY BILIKERE POLICE STATION REPRESENTED BY SPP HIGH COURT BUILDING BANGLALORE-560 001.

¶16

…RESPONDENT

¶17

(BY SMT. RASHMI JADHAV, ADDL. SPP)

¶18

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 (FILED U/S.483 BNNS) OF CR.P.C PRAYING TO RELEASE HIM ON BAIL IN CRIME NO.304/2021 (S.C.NO.16/2022) OF BILIKERE POLICE STATION, MYSURU DISTRICT FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC, PENDING ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MYSURU SITTING AT HUNSUR.

¶19

THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶20

¶21

NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶22

CORAM: HON'BLE MR JUSTICE H.P.SANDESH

¶23

ORAL ORDER

¶24

This is a successive bail petition filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.304/2021 of Bilikere Police Station, Hunusur SubDivision, Mysuru, for the offence punishable under Section 302 of IPC.

¶25

Heard the learned counsel for the petitioner and the learned Additional SPP for the respondent-State.

¶26

This Court earlier in Crl.P.No.3958/2022 vide order dated 22.06.2022 dismissed the bail petition and once again, the petitioner had approached this Court by filing Crl.P.No.1778/2024 and this Court heard the matter and while dictating the orders, at that juncture, learned counsel for the petitioner requested the Court to give liberty to the petitioner to approach this Court after examination of witnesses C.Ws.7 and 8, who are seizure witnesses and also the eye witnesses,

¶27

who have not been cross-examined. Hence, this Court dismissed the petition as withdrawn on 27.03.2024 with liberty to the petitioner to approach this Court after cross-examination

¶28

3 - NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶29

of other eye witnesses and examination of seizure witnesses i.e., C.Ws.7 and 8.

¶30

Learned counsel for the petitioner would submit that seizure witnesses, who have been examined as P.Ws.7 and 8 have turned hostile and not supported the case of the prosecution. Learned counsel also would submit that there is a discrepancy in the evidence of the eye witness, who has been examined as P.W.4 and though he contend that he witnessed the incident of committing murder, when the statement was recorded and confronted to him, he denied the statement in terms of Ex.D1, wherein it is stated that he got the information through one Vishwanath and the statement of P.W.4 was recorded after 1½ month of the incident and he is a close relative and his evidence cannot be believed. Learned counsel also would submit that this petitioner is in custody from 2021 and he may be enlarged on bail.

¶31

Per contra, learned Additional SPP for the

¶32

respondent-State would submit that even the Court can convict the petitioner/accused based on the sole eye witness statement i.e., P.W.4, who has supported the case of the prosecution and

¶33

4 - NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶34

he has specifically spoken before the Court that he had witnessed the incident of inflicting injuries with weapon. She also brought to notice of this Court PM report, wherein nine injuries are found and almost all the injuries are chop wound injuries and Doctor is also examined and the IO has taken the opinion from the Doctor with regard to the seized article i.e., the sickle which was used to cause the nature of injuries found in the PM report. She would further submit that FSL report is positive and FSL witness to be examined and mere examination of witnesses C.Ws.7 and 8 and both of them have turned hostile cannot be a ground to enlarge the petitioner on bail. She would also submit that trial has commenced and yet to examine other prosecution witnesses and though these two eye witnesses have turned hostile, this Court cannot appreciate the evidence available on record.

¶35

Having heard the learned counsel for the petitioner and learned Additional SPP for the respondent-State, the factual matrix of the case is that the accused had borrowed an amount of Rs.50,000/- from the complainant and portion of the amount was repaid and he was due for the remaining amount. With regard to non-payment of balance amount, galatta has

¶36

5 - NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶37

taken place. That on 17.09.2021, at about 9.50 p.m., when the accused saw the victim coming from backside of barren house of the accused, he had questioned him why he came near the house and scuffle has taken place between them and due to earlier grudge against the victim, he took out the machete and inflicted injuries. As a result, he succumbed to the injuries.

¶38

This Court also while considering the material on record, earlier rejected the bail petition in Crl.P.No.3958/2022 vide order dated 22.06.2022 and considered the matter on merits and dismissed the same. No doubt, the petitioner also approached this Court on 02.03.2024 in Crl.P.No.1778/2024, while dictating the orders, at that juncture, learned counsel for the petitioner requested the Court to give liberty to the petitioner to approach this Court after examination of C.Ws.7 and 8. Now, the witnesses C.Ws.7 and 8 have been examined and they have turned hostile and other eye witnesses have been examined subsequent to the liberty granted by this Court to petitioner i.e., the eye witness P.W.4. On perusal of the evidence, he has supported the case of the prosecution in his chief evidence.

¶39

¶40

NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶41

Learned counsel for the petitioner would contend that there is a discrepancy in the evidence of P.W.4, who is an eye witness to the incident. When trial has began and the witnesses are examined, this Court sitting under Section 439 of Cr.P.C. cannot appreciate the evidence on record and the Trial Court is yet to consider the matter on merits. It is also not in dispute that recovery is made at the instance of this petitioner. Though two seizure witnesses i.e., C.Ws.7 and 8 have been examined, they have not supported the case of the prosecution, the medical evidence of the Doctor, who has examined the weapon at the request of the IO have given the opinion that sickle which was seized at the instance of the petitioner would cause such injuries. Apart from that, there is a positive FSL report and FSL report also disclose blood stains in the weapon.

¶42

When such being the case and some of the witnesses have been examined before the Court, the Court has to take note of the direct evidence as well as other circumstantial evidence while appreciating the material on record. Merely because, the petitioner is in custody from 2021 is not a ground to enlarge him on bail and the Trial Court has to

¶43

7 - NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶44

appreciate the evidence of C.Ws.7 and 8 and the evidence of eye witnesses and also take note of the injuries found in the PM report and all the injuries are chop wound injuries and overt act allegation is made against the petitioner. When such material is placed before the Court, question of exercising the discretion in favour of the petitioner only on the ground that evidence has already been commenced and no need of further custody cannot be accepted. The Court has to take note of the gravity of the offence and also the nature of the injuries as well as the material available before the Court. Hence, I do not find any ground to exercise the discretion in favour of the petitioner in a successive bail petition. However, this Court can direct the Trial Court to dispose of the matter in a time bound period.

¶45

In view of the discussion made above, I pass the

¶46

following:

¶47

ORDER

¶48

(i) The criminal petition is rejected.

¶49

(ii) The Trial Court is directed to conclude the trial and dispose of the matter within a period of six months from today.

¶50

8 - NC: 2024:KHC:44760 CRL.P No. 11501 of 2024

¶51

(iii) The observation made by this Court while rejecting the bail petition shall not influence the Trial Court while considering the matter on merits.

¶52

Sd/(H.P.SANDESH) JUDGE

¶53

¶54

List No.: 1 Sl No.: 62

Kendanayaka v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Kendanayaka v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Shivu Vs the Union of India

Sri Ashwathappa Vs Smt N Radha @ Radhamma

M/S Vaswani Whitefield Projects (P) Ltd. Vs K C Rajaram

Sri. Chandrashekaraiah T B Vs Nil

Sri. L. Roopeash Vs Nil

Mr Dhanush Bhandary @ Dhanu Kanduka Vs State of Karnataka