IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 09TH DAY OF OCTOBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE ASHOK G NIJAGANNAVAR

CRIMINAL PETITION NO.100731/2019 (439)

BETWEEN:

SHRI. SHIVAPPA MAYAPPA YARAGATTI @ HANABAR
AGE:36 YEARS, OCC:DRIVER,
R/O KATKOL, TQ:RAMADURGA,
AT BELAGAVI.
PETITIONER
(BY SRI.S.B. DEYANNAVAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
THROUGH THE POLICE SUB-INSPECTOR,
MURGO POLICE STATION,
R/O STATE PUBLIC PROSECUTOR,
HIGH COURT BENCH, DHARWAD.
…RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)

THIS PETITION IS FILED UNDER SECTION 439 OF CR.P.C.
SEEKING TO ENLARGE THE PETITIONER ON BAIL BY
ALLOWING THIS PETITION IN MURGOD POLICE IN
CR.NO.109/2018, FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498-A, 302, 201, 506 OF SectionIPC.

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER

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

seeking grant of bail to the petitioner in connection with

Murgod Police Station Crime No.109/2018 for the

offences punishable under Sections 498A, Section302, Section201 and

Section506 of IPC.

2. The facts briefly stated by the petitioner are

that on the complaint filed by one Smt. Gangavva W/o

Basappa Dandainavar of Shivapur village, Saundatti

Taluk, Belagavi District, who is the mother of the

deceased Smt. Fakeeravva, respondent-police have

registered the case. The allegations are that the

accused is the husband of the deceased Fakeeravva and

they were married about 15 years back and also they

have got one son from their wedlock. The accused was

suspecting the character of his wife deceased

Fakeeravva and he was causing harassment to her. On

account of said harassment, Smt. Fakeeravva was
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residing along with the complainant and after few years,

their matrimonial dispute was settled and the accused

had taken back his wife Fakeeravva to his house. That

on 5.3.2018, the accused and his wife informed the

complainant that both of them are going for medical

treatment. But, on the said date, the complainant’s

daughter did not return, after few days, it was found

that the dead body was found in the land of one Mr.

Gudsab and the case was registered. On receiving the

said information, the complainant found dead body and

identified the body which is as that of her daughter

Fakeeravva. On the basis of complaint, the Police have

taken up the investigation and the accused was arrested

on 02.04.2018. He is thus in judicial custody. The bail

petition filed before the Sessions Court was rejected.

3. Heard the learned counsel for the petitioner

and the learned HCGP. Perused the charge sheet

records.

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4. The counsel for the petitioner strenuously

contended that the allegations made in the complaint

are false and concocted. The dead body found in the

land of Gudsab and found in the stage as such could

not be identified. There are no direct eye witnesses to

the incident to substantiate the case of prosecution. It

is only on the basis of the circumstantial evidence, the

accused has been involved in the case. There is no

prima facie case involving the accused in the alleged

murder. There are several anomalies that clearly stands

to the benefit of the innocent petitioner. The petitioner

does not have any criminal antecedents and he has

been falsely implicated in this case.

5. Per contra, the learned HCGP strenuously

submitted that the prosecution case is based on extra

judicial confession, the last seen theory and extra

marital relationship of the accused with the other

ladies. The statement of CW16, 17, 20, 21 and 22
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clearly discloses that on 05.03.2018, the accused had

taken his wife in the guise of medical treatment and has

committed murder. Even though there are no eye

witnesses, the circumstantial evidence clearly indicates

that the accused having illicit relationship with other

ladies, had committed murder and also suspecting the

character of his wife has committed murder. Thus,

there are no valid grounds for granting bail.

6. In view of the contentions urged by the

counsel for the petitioner and learned HCGP, it is

evident that the entire case of the prosecution is based

on extra judicial confession and last seen theory. The

allegation regarding extra marital relationship of the

accused is that he was also suspecting the character of

his wife. It is not in dispute that on 05.03.2018 the

accused and his wife left the house for taking medical

treatment by informing the complainant, which has

been witnessed by CW 16 and 17, thereafter, on the
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basis of the complaint filed by Mr.Gudsab regarding

dead body found in his land, the Police have registered

UDR case. After registeration of said UDR case, the

complainant-mother of the deceased filed complaint on

31.03.2018 suspecting the involvement of the accused.

According to the complaint averments, the alleged

incident of murder has taken place on 05.03.2018.

Thereafter, on 12.03.2018, the complaint was filed by

one Mr. Gudsab the owner of the land, who has seen

the dead body in his land. Thereafter, on 31.03.2018

the mother of the deceased had filed complaint.

7. As already stated above, the entire case is

based on circumstantial evidence. The information said

to have been disclosed by the accused to his son CW18-

Sadanand is the only connecting link. The contents of

the statement discloses that on 05.03.2018 the accused

had called his son CW18 over phone and informed that

he has committed the murder of his mother Fakeeravva
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and in case, if he discloses the said information to any

other person, he will take away his life.

8. It is a cardinal principle of criminal

jurisprudence that the guilt of the accused must be

proved beyond all reasonable doubt. The burden of

proving its case beyond all reasonable doubt lies on the

prosecution and it never shifts. Another golden thread

which runs through the web of the administration of

justice in criminal cases is that if two views are possible

on the evidence adduced in the case, one is pointing the

guilt of the accused and another one is the view which

is favourable to the accused should be adopted.

9. Keeping in mind the aforesaid position of law

it is necessary to consider is the charge sheet records.

As could be seen from the records, CW18 who is son of

the deceased alone has stated that his father has

disclosed about the murder committed by him and some
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of the prosecution witnesses have stated about last seen

theory. At this stage, it is needless to make elaborate

discussion or give any specific finding as the same is

not justifiable while considering the bail application.

10. In the decision reported in 2005 Criminal

Law Journal 883, (Supreme Court), it is observed as

under :

“The considerations which normally
weigh with the Court in granting bail in non-
bailable offences are – the nature and
seriousness of offence; the character of the
evidence; circumstances which are peculiar
to the accused; a reasonable possibility of
the presence of the accused not being
secured at the trial; reasonable
apprehension of witnesses being tampered
with the larger interest of the public or the
State and other similar factors which may be
relevant in the facts and circumstances of
the case.”

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11. In another decision reported in ILR 1992

KAR 754, it is observed that,

“Even where a prima facie case is
established, the approach of the court in the
matter of bails is not that the accused
should be detained by way of punishment
but whether the presence of the accused
would be readily available for trail or that he
is likely to abuse the discretion granted in
his favour by tampering with the evidence.’

12. In view of the principle laid down by the

Hon’ble Apex Court, the Court can consider the grounds

urged by the petitioner and grant bail if there are

justifiable reasons instead of detaining by way of

punishment.

13. The main objection by the learned HCGP is

that in the event of granting bail, the accused is likely to

abscond and tamper the prosecution witnesses and he
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may influence and tutor his minor child. The said

objection may be set right by imposing stringent

conditions.

14. Considering the facts and circumstances of

the case and submission of the counsel, this Court is of

the view that there are valid grounds to grant the bail,

subject to certain conditions. Accordingly, I proceed to

pass the following :

ORDER

The Criminal Petition No.100731/2019 filed under

Section 439 Cr.P.C. is allowed.

Consequently, the petitioner shall be released on

bail in connection with Murgod P.S. Crime No.109/2018

of Respondent Murgod Police Station, for the offence

punishable under Sections 498A, Section302, Section201 and Section506 of

IPC, subject to following conditions:
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CONDITIONS

1. The petitioner shall execute a personal bond

for a sum of Rs.1,00,000/- (Rupees One lakh

only) with one solvent surety for the likesum

to the satisfaction of the jurisdictional Trial

Court.

2. The petitioner shall not indulge in tampering

the prosecution witnesses.

3. The petitioner shall appear before the Trial

Court/Sessions court on all the future

hearing dates unless prevented by any

genuine cause.

4. The petitioner shall not leave the jurisdiction

of the trial Court/Sessions Court without

prior permission, till the disposal of the case.

Sd/-

JUDGE
JTR/MNS