Full Judgment
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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 20TH DAY OF MAY, 2025 BEFORE THE HON'BLE MR JUSTICE T.M.NADAF CRIMINAL PETITION NO. 200862 OF 2025 (439(Cr.PC)/483(BNSS) BETWEEN: MALLIKARJUN S/O UMESH KITTALI AGE: 36 YEARS, OCC: SERVICE IN MOBILE SHOP R/O. NAVABAG, VIJAYAPUR - 586101. (SOLE ACCUSED) …PETITIONER (BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH GANDHI CHOWK POLICE STATION DIST: VIJAYAPURA - 586101 R/BY ADDL. SPP KALABURAGI HIGH COURT OF KARNATAKA KALABURAGI BENCH - 585107.
Digitally signed …RESPONDENT by LUCYGRACE (BY SRI SHESHADRI JAISHANKAR, AGA) Location: HIGH COURT OF KARNATAKA THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BNSS-2023, PRAYING TO GRANT THE REGULAR BAIL TO THE PETITIONER / SOLE ACCUSED IN SC NO.107/2024 (GANDHI CHOWK P.S CRIME NO.168/2023 DISTRICT VIJAYAPUR) FOR THE OFFENCES PUNISHABLE U/SEC 302, 506, PENDING ON THE FILE OF IV ADDL DISTRICT AND SESSIONS JUDGE VIJAYAPUR DISTRICT VIJAYAPURA. THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.M.NADAF -2-
ORAL ORDER
(PER: HON'BLE MR JUSTICE T.M.NADAF) This petition is by the sole accused for regular bail under Section 438 of Bharatiya Nagarika Suraksha Sanhita, 2023, in Crime No.168/2023 registered for the offences punishable under Sections 302 and 506 of IPC by the Gandhi Chowk Police Station, Vijayapura.
2. The brief facts as per the records are as under: One Yallavva - C.W.1/P.W.1 alleged to have given a
written complaint in her own handwriting to the Gandhi Chowk Police Station, stating that, she and one Jayashree (P.W.10) were in the house of deceased Roopa Metri, a social worker. During the early morning at about 1.45 a.m. of 18.09.2023 the complainant-Yallavva heard aloud shouting of Roopa Metri and when she woke up, she had seen that the petitioner-Mallikarjun was sitting on the chest of Roopa assaulting her with club on her forehead as well as on her head. Immediately, the complainant had -3-
been to the room where the mother of Roopa Smt. Kallavva was sleeping, by that time the petitioner came there and pushed the deceased Kallavva to the floor and assaulted her on her head, resulting in causing death of Roopa as well as Kallavva. When the complainant tried to intervene, the club which was in the hand of the petitioner came in contact with the little finger of the left hand of the complainant causing injury. Further, it is alleged in the
complaint that, the petitioner has threatened the complainant as well as Jayashree, to not to disclose the said fact to anybody, otherwise, he will finish them of and went away from the scene of offence. Immediately, thereafter, she called 1098 and informed the police who came to the spot. In the complaint, the motive for assault alleged was that, Mallikarjun suspecting the fidelity of his wife i.e. Roopa which has resulted in causing death of Roopa and his mother-in-law Kallavva. The police after completing the investigation have filed charge-sheet and the case is now pending for trial before the IV Additional
District and Sessions Judge, Vijayapura in -4- S.C.No.107/2024. Ten witnesses have already been examined including prime eyewitnesses i.e. the complainant and another lady Jayashree who alleged to have been present in the house when the alleged incident had occurred.
3. Heard Sri. Shivanand V. Pattanshetty, learned counsel for the petitioner and Sri. Sheshahdri Jaishankar, learned AGA for the respondent-State.
4. Sri. Shivanand Pattanshetty, learned counsel for
the petitioner submits that, a crime was registered based on the complaint of Yallavva at 4.45 a.m. on 18.09.2023, immediately after the incident. After the investigation, the police have filed charge-sheet. Now the case is come up for the trial. All the prime witnesses for the mahazar i.e. from P.W.1 to P.W.8 in respect of recovery of all incriminating materials turned hostile and not supported the case of the prosecution. Even there is nothing have been elicited from the material witnesses during the course of cross-examination by the Public Prosecutor.
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Insofar as the complainant and another eyewitness i.e. Jayashree are concerned, who have been examined as P.W.9 and P.W.10, have turned hostile in entirety and both of them peculiarly and specifically stated that, they were not present in the house of the deceased and they do not know anything about the incident. The complainant i.e. P.W.9 has stated in her cross examination by the Public Prosecutor that she do not know about the death of Roopa and her mother Kallavva and she has not given any complaint to the police. Under these circumstances, the petitioner who has been arrested on 18.09.2023 is in judicial custody since then, in view of cross-examination of eyewitnesses who have been turned hostile, nothing remains to hold that, the petitioner has committed the murder of deceased Roopa and Kallavva and his custody further not warranted. On this learned counsel for the petitioner seeks to allow the petition.
5. Per contra, Sri. Sheshadri Jaishankar, learned AGA vehemently contends that, though the witnesses have -6-
turned hostile, the Investigating officer is required to be examined and the trial is pending and it will be concluded within one or two months. The petitioner instead of
approaching this Court, could have approached the learned Sessions Judge on the very same assertion which he has urged before this Court, as the order of rejection of bail produced along with the present petition is of the year 2024, the evidence in the said case was commenced in the month of January 2025. The case of the prosecution is of house murder wherein, Roopa and Kallavva i.e. wife and mother-in-law of the petitioner were found dead in the very same house where all are residing under the same roof where the incident had taken place. In those circumstances, the accused having not explained anything about the incident and the plea, now only on the basis of
the material witnesses turning hostile cannot be considered to release him on bail. In the event, if he is released on bail, there is possibility of fleeing away causing obstacle in the smooth functioning of the trial and he may not be available in the event if the case goes -7- against him to serve the sentence which may be imposed by the learned Sessions Judge, before whom the case is now pending. Accordingly, he prays to dismiss the petition.
6. Heard the learned counsel for the parties and perused the materials placed on record.
7. The only point that would arise for consideration is ; “whether in the peculiar facts and circumstances of the case, the petitioner can be admitted on bail?’ As per the records, it is forthcoming that, the crime
has taken place in the early hours i.e. at about 1.45 a.m. of 18.09.2023 and the complaint came to be lodged at 4.45 p.m. on the same day itself. The police during the investigation have recovered incriminating materials against the petitioner/accused. But all the witnesses who are Panch witnesses to the said recovery mahazar have turned hostile and not supported the prosecution case. Even the prime witnesses i.e. star witnesses of the -8-
prosecution being direct eyewitnesses who were alleged to be present in the house and witnessed the incident as per the prosecution, have turned hostile and stated that they were not present in the house and were not aware of the incident and the complainant even has gone to the extent of saying that, she do not known about the death of Roopa and Kallavva and she has not given any complaint against the accused, she has written the complaint as per the instructions of the police.
8. Having considered all the materials on record,
this Court feels that, without expressing anything on merits of the case, further incarceration of the petitioner on the aforesaid set of allegations, is not warranted. Accordingly, my answer to the aforesaid point is in the affirmative. Accordingly, the following order:
ORDER
Petition is allowed. The petitioner is directed to be enlarged on bail, in Crime No.168/2023 of Gandhi Chowk Police Station, -9- Vijayapur district, registered for the offences punishable under Sections 302 and 506 of IPC, now pending in S.C.No.107/2024 on the file of learned IV Additional District and Sessions Judge, Vijayapura, subject to the following conditions: a) The petitioner shall execute personal bond for a sum of Rs.1,00,000/- with two sureties for the likesum, to the satisfaction of the jurisdictional Court; b) The petitioner shall not tamper with the rest of the prosecution witnesses or prevail upon the prosecution witnesses in any manner; c) The petitioner shall attend the jurisdictional Sessions Court and co-operate with the smooth functioning of the trial without causing any hindrance; d) The petitioner shall not leave the jurisdiction of the Sessions Court without prior permission; - 10 - e) Any violation of the conditions stipulated above would entail in cancellation of the bail; f) Ordered accordingly. Sd/- (T.M.NADAF) JUDGE THM,SVH List No.: 1 Sl No.: 5 CT: PS