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A T Suresh vs The State By Psi on 21 June, 2018

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF JUNE, 2018

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL PETITION NO.4065 OF 2018

BETWEEN:

A.T. SURESH
S/O A.P. THAMMANNA
AGED ABOUT 35 YEARS
R/AT 2ND CROSS
THANNIRUHALLA, BELUR ROAD
HASSAN – 573 201.
…PETITIONER
(BY SRI.P.P.HEGDE, ADVOCATE)

AND:

THE STATE BY P.S.I.
PENSION MOHALLA POLICE STATION
HASSAN – 573 201
(REPRESENTED BY THE STATE
PUBLIC PROSECUTOR, HIGH COURT OF
KARNATAKA AT BENGALURU)
…RESPONDENT
(BY SRI.K.NAGESHWARAPPA, HCGP)

THIS PETITION IS FILED UNDER SECTION 439 OF
CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.40/2018 (C.C.NO.1510/20158) OF PENSION
MOHALLA P.S., HASSAN DISTRICT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498A, 302, 201 OF IPC.
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THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

ORDER

This petition is filed under Section 439 of Cr.P.C.

The petitioner is the husband of deceased-Hemakshi. The

deceased died on 28.12.2017 in the matrimonial home.

The investigation is completed and charge sheet is laid

under Sections 302, 498(A) and 201 of IPC against the

petitioner. The petitioner is in custody since 03.02.2018.

2. Heard the learned counsel for the petitioner

and learned HCGP.

3. Learned HCGP has not filed any statement of

objections, but has orally opposed the petition.

4. The case of the prosecution is that the

deceased – Hemakshi married the petitioner about 16

years earlier to the incident. They had a son aged about

15 years. The deceased was residing along with her son

and petitioner. There are allegations that even earlier to
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the incident, a case was registered against the petitioner

under Section 324 of IPC and charge sheet was filed

against him. That being the case, on 28.12.2017, the

deceased is alleged to have collapsed in the house having

lost her consciousness. This was informed to the brother

of the deceased by the petitioner. The deceased was

taken to hospital and she was declared as brought dead.

An UDR case was registered in UDR.No.15/2017. A

regular FIR came to be registered against the petitioner

on 03.02.2018 and he was taken into custody. Nothing

has been recovered from the possession or at the

instance of the accused. According to the prosecution,

deceased was assaulted with hands on her abdomen,

which resulted in her death. The post mortem report

indicates that the deceased had sustained as many as 14

external injuries, and all were contusions. The opinion

regarding the cause of death is that the deceased died

due to hemorrhage shock, as a result of bleeding

abdominal injuries.

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5. Learned counsel for the petitioner points out

that according to the prosecution, the incident took place

in the matrimonial house wherein, deceased was residing

along with the accused and their minor son Prajwal. The

presence of the said Prajwal has been mentioned in the

inquest mahazar. But for the reasons best known to the

Investigation Agency, he has neither been examined nor

been cited as witness. Therefore, serious doubt crops up

in the case of the prosecution. Further except suspicion,

there is no direct material to implicate the petitioner in

the alleged incident. It is after much deliberation and

discussion, FIR was lodged against the petitioner about a

month after the incident. All these circumstances, give

raise to doubt about the case of the prosecution. He

further submits that totally a stranger has been

introduced as eye witness to the incident. But there is

apparent contradictions in the statement attributed to

the said witness namely, Satish – CW-16. In his
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statement, he has stated that he was informed about the

death of deceased over phone only on 28.12.2017.

6. Learned HCGP at the outset submits that the

case of the prosecution is based on circumstantial

evidence. There is a material to show that the deceased

was subjected to cruelty and was assaulted in the

matrimonial house. In this regard, CWs’-11 to 19 speak

about Panchayath held by them prior to the incident and

moreover, incident has taken place in the matrimonial

house, hence, by force of Section 106 of Evidence Act, the

petitioner is answerable for the charges leveled against

him and hence, he is not entitled for bail.

7. On perusal of the charge sheet papers and in

the light of the submissions made by the learned counsel

for the petitioner, I find striking contradiction in the case

of the prosecution. Even though the prosecution has

cited CW-16 as eye witness to the incident, learned
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HCGP concedes that there are no eye witness to the

incident.

8. As rightly pointed out by the learned counsel

for the petitioner, the son of the petitioner was very much

present at the spot of occurrence as mentioned in the

inquest mahazar. But he has not been cited as the

witness to the incident, which itself throws doubt about

the case of the prosecution. Even with regard to the

opinion as to the cause of death, it is doubtful whether

charge under Section 302 of IPC could be sustained. In

that view of the matter, prosecution has to go long way to

establish the charges against the petitioner. Hence, it is

not proper to extend the custody of the petitioner by way

of punishment.

ORDER

i. Criminal petition is allowed.

ii. Petitioner is ordered to be enlarged on
bail on furnishing a bond in a sum of

Rs.1,00,000/- (Rupees One Lakh only)
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with two sureties each for the likesum to
the satisfaction of the jurisdictional court.

iii. Petitioner shall appear before the court as
and when required.

iv. Petitioner shall not threaten or allure the
prosecution witnesses in whatsoever
manner.

v. Petitioner shall not get involved in similar
offences.

vi. Petitioner shall not leave the jurisdiction
of the Trial Court without prior
permission of the Trial Court.

Sd/-
JUDGE

VMB

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