IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2018
THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.4065 OF 2018
S/O A.P. THAMMANNA
AGED ABOUT 35 YEARS
R/AT 2ND CROSS
THANNIRUHALLA, BELUR ROAD
HASSAN – 573 201.
(BY SRI.P.P.HEGDE, ADVOCATE)
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)
(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.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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
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
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
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
HCGP concedes that there are no eye witness to the
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
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)
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
v. Petitioner shall not get involved in similar
vi. Petitioner shall not leave the jurisdiction
of the Trial Court without prior
permission of the Trial Court.