Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 909

IN THE HIGH COURT OF KARNATAKA
H.P. Sandesh, J.
Shivanna @ Kappe Shiva - Appellant
Versus
State of Karnataka - Respondent
Criminal Petition No. 7372 of 2021
Decided On : 03-02-2022

Advocates appeared:
Veeranna G. Tigadi, Advocate, Krishna Kumar K.K, Advocate

The individual role of the accused is not required to be considered when they are alleged to have been part of an unlawful assembly, as established by the apex Court.

Headnote:
Bail - Criminal Law - IPC - Sections 143, 147, 148, 341, 323, 324, 307, 302 read with Section 149 - Summary
Fact of the Case:

The petitioner sought regular bail for the offences punishable under Sections 143, 147, 148, 341, 323, 324, 307, 302 read with Section 149 of IPC. The incident took place in a Wine Shop resulting in the death of the victim due to head injury. The petitioner argued for bail based on lack of pre-medication and earlier motive, while the prosecution relied on eyewitnesses' statements and the nature of injuries.
Finding of the Court:

The Court found that there were eyewitnesses to the incident and the cause of death was clear. It noted the specific allegations against the accused and the principles laid down by the apex Court in a similar case, leading to the rejection of the bail petition.
Issues: The main issue was whether the petitioner should be granted bail considering the nature of the allegations and the evidence presented.
Ratio Decidendi: The Court relied on the principles established by the apex Court in a similar case, emphasizing that the individual role of the accused is not required to be considered when they are alleged to have been part of an unlawful assembly.
Final Decision: The bail petition was rejected.

JUDGMENT

H.P. Sandesh, J. - This petition is filed under Section 439 of Cr.P.C., seeking regular bail of the petitioner/accused No.5 in Crime No.194/2021 of Kamakshipalya Police Station, Bengaluru City, for the offences punishable under Sections 143, 147, 148, 341, 323, 324, 307, 302 read with Section 149 of IPC.

2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent/ State.

3. The factual matrix of the case of the prosecution is that on 18.07.2021, an incident was taken place in the Wine Shop at 5 p.m. The injured succumbed to the injuries on 05.08.2021 due to COMa as a result of head injury. at the first instance, a case has been registered against the unknown persons. Thereafter, when this petitioner went and surrendered on 12.08.2021, he has been in custody. The police have investigated the matter and filed the charge-sheet.

4. The learned counsel appearing for the petitioner would submit that this petitioner has been arraigned as accused No.5. at the first instance, a case has been registered against the unknown persons and the alleged incident was taken place on 18.07.2021 and he died on 05.08.2021. There was no any pre-medication. It is the case of the prosecution that it is an incident of sudden provocation and though the prosecution relies upon the eyewitnesses - CWs.11 to 16, an allegation against this petitioner is that he assaulted with his hands.

5. The learned counsel also brought to the notice of this Court the post-mortem report, wherein, the opinion given as 'Death is due to COMa as a result of head injury' and mainly there was a head injury. The allegation of the prosecution is that all the 7 accused persons have assaulted and no corresponding injuries except the injuries viz., fracture of mandible and an injury near the left eye. Hence, the Court has to take note of these aspects into consideration. The learned counsel also would submit that when there is no pre-medication and also there was no any earlier motive, at the most attracts under Section 304 Part II and not 302 of IPC. Hence, this Court has to enlarge the petitioner on bail since the investigation has been completed.

6. Per contra, the learned High Court Government Pleader appearing for the State would submit that there are eyewitnesses to the incident. CWs.11 to 16 have made the statement before the Investigating Officer that they have witnessed the incident since they were having acquaintance with the accused persons and also the victim.

7. The learned High Court Government Pleader also would submit that CW.14 gave the statement before the learned Magistrate under Section 164 of Cr.P.C. apart from that, CW.1, is the injured eyewitness to the incident and there are direct eyewitnesses and the cause of death is very clear that due to COMa as a result of head injury, he was succumbed to the injuries. Hence, there is a prima facie against the petitioner herein.

8. Having heard the respective counsel and on perusal of the material available on record, it is not in dispute that the direct witnesses - CWs.11 to 16 are the eyewitnesses to the incident. It is also not in dispute that CW.1 also had sustained the injury in the incident and also the prosecution invoked the offence under Section 307 of IPC apart from that Section 302 of IPC.

9. The main contention of the learned counsel for the petitioner is that the Court has to take note of the injuries found in the post-mortem report. Having perused the post-mortem report, wherein, it is mentioned that vertical fracture of mandible present over lower lateral incisor on right side. apart from that, fractured bone end shows extended extravasations. MRI BRaIN PLaIN - MOIL shown facial injuries. Having taken note of the injuries insofar as the cause of death is concerned, it is clear that the death is due to COMa, as a result of head injury. When the eyewitnesses speak with regard to the very presence of this petitioner and assaulted along w

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