Judgment:
ORDER
A.S. Pachhapure, J.
1. The petitioners in Cri. P. Nos. 6397 and 6398 of 2009 have sought for bail having been arrested for the offence punishable under Sections 307 and 302 read with Section 34 of the Indian Penal Code, 1860 whereas the petitioner in Cri. P. No. 107 of 2010 has sought for anticipatory bail apprehending arrest for the aforesaid offences.
2. The facts relevant for the purpose of these petitions are as under:
One Prabhakar Shetty, a resident of Jappu Garodi House at Mangalore submitted a complaint to the Police on 29-5-2009 narrating the facts of the incident. He is a Businessman and owns a hotel at Mangalore. His brother-in-law Chetan Shetty was running a General Stores in the City. On 28-5-2009 in the night at about 9.00 p.m. when the complainant was in the Hotel, two persons came and informed that his brother-in-law Chetan Shetty is found in unconscious condition in his shop and some persons have caused injuries. Immediately, the complainant went to the shop of the deceased and found his brother-in-law, in the pool of blood. He was unconscious and there were injuries over the abdomen, hands, on the back of the head and immediately, he was lifted to the KMC hospital and after examination, he was admitted as an in-patient.3. The complainant states that a week earlier to the incident, there was an assault in front of the shop of his brother-in-law and some persons had mistaken that the deceased was also responsible for the incident. In the circumstances, the complainant apprehended that the assailants with an intention to cause the death have caused the assault in the night at about 9.30 p.m. A complaint filed on these facts was registered and the investigation was held. Later on 29-5-2009, at about 3.45 a.m. the deceased Chetan Shetty succumbed to the injuries.
4. The petitioners submit that they are innocent and that they have not committed any crime much less the one alleged against them. It is also alleged that the names of the petitioners do not appear in the complaint and it is only during the investigation the statement of the witnesses were recorded and the petitioners were identified. Hence, they claim that they have been falsely implicated due to the communal clash between the Hindus and Muslims.
5. Furthermore, they submit that four unknown persons have caused the assault and that more than four persons have been implicated in the crime. They also state that during the inquest, the statement of the witnesses were recorded and even at that time, the names of the assailants were not revealed. It is also stated that accused 5 Mustafa was arrested on 28-6-2009 and that he is a member of the Karnataka Forum for Dignity and that at his instigation. Accused 1 to 4 went to the shop of the deceased and caused the assault. The petitioners also claim that the statements of C.W. 12-Ganesh and C.W. 13-Nitish Kumar were recorded on 30-5-2009 who are said to be the eye-witnesses and that they saw four unknown persons causing the assault on the deceased on the date of the incident. Further, they claim that there is delay in recording the statement of the eye-witnesses and that their presence for the investigation is not necessary. On these grounds, they have sought for bail under Section 439 of the Criminal Procedure Code, 1973.
6. So far as the anticipatory bail sought for by the petitioner in Cri. P. No. 107 of 2009 is concerned, the petitioner submits that he is innocent and his name does not appear in the complaint and that he has not taken part in the incident. Further, he submits that he has been falsely implicated.
7. All the petitioners submit that they are ready and willing to abide by any conditions that may be imposed for their release on bail. On these grounds, they have sought for grant of bail.
8. The learned High Court Government Pleader has opposed the petitions and submits that there is prima facie material against the petitioners for the offence under Section 302 read with Section 34 of the IPC and in the communal clashes the petitioners took the advantage of the situation and caused the assault on the deceased with the knives and swords. He also submits that there was identification parade and that accused 1 and 3 were identified by C.Ws. 12 and 13 as the persons who caused the assault on the deceased with the knives and swords. So far as accused 6 the petitioner in Cri. P. No. 107 of 2010 is concerned, he submits that he is the instigator and at his instance, the petitioners have caused the assault. Therefore, he submits that there are no grounds to grant the bail.
9.I have heard the learned Counsel for the petitioners and also the learned High Court Government Pleader. The points that arise for my consideration are:
1. Whether the petitioners in Cri. P. Nos. 6397 and 6398 of 2009 are entitled to the bail sought for?
2. Whether the petitioner in Cri. P. No. 107 of 2010 is entitled to the anticipatory bail sought for?
10. So far as accused 1 to 3 are concerned, they are the petitioners in Cri. P. Nos. 6397 and 6398 of 2009 and though the statement of C.W. 12-Ganesh and C.W. 13-Nitish Kumar were recorded on 30-5-2009, who state that four unknown persons caused the assault on the deceased, in the identification parade held by the Taluka Executive Magistrate, these two witnesses have identified only accused 1 and 3 and not accused 2, who is the petitioner in Cri. P. No. 6398 of 2009.
11. So the perusal of the statements and the fact that the witnesses identified the petitioners in Cri. P. No. 6397 of 2009, reveal that there are eye-witnesses and the statements of those witnesses were recorded on 30-5-2009, and in the circumstances, I have to hold that there is prima facie material against the petitioners in Cri. P. No. 6397 of 2009.
12. Though the Counsel for the petitioners submit that there is delay of 3 days in recording the statement of these eye-witnesses, it is relevant to note that there was a communal clash amongst Hindus and Muslims and the injured was in the Hospital for treatment of the injuries and that he died only on 29-5-2009 at 3.45 a.m. and it is only thereafter that the statement of these witnesses were recorded after the inquest was held. The fact of delay and the reasons are matters which will have to be considered only during the trial.
13. The fact that C.Ws. 12 and 13 have identified the petitioners in the identification parade and prima facie the petitioners have taken active part in causing the assault on the deceased with the knife and the sword, there appears prima facie material against these petitioners. So far as the offence under Section 302 read with Section 34 of the IPC is concerned, the injured had sustained severe injuries on the head, abdomen and other parts of the body and died immediately within a day after the incident. These petitioners have not made out any exceptional grounds for the grant of bail. Apart from this, the Government Pleader contends the possibility of the threat to the witnesses during the course of the trial and I do not think that the apprehension is unreasonable. Hence, in my opinion, the petitioners in Cri. P. No. 6397 of 2009 are not entitled to the bail sought for.
14. So far as the petitioner in Cri. P. No. 6398 of 2009 is concerned, in the identification parade by the Taluka Executive Magistrate, C.Ws. 12 and 13 have not identified this person and therefore, at this stage, the facts differ from those of the petitioners in the other Case. Considering the circumstance that the name of the petitioner is not mentioned in the complaint and that he has not been identified during the identification parade held by the Taluka Executive Magistrate, I think that it is a fit case where bail has to be granted to the petitioner.
15. So far as anticipatory bail to the petitioner in Cri. P. No. 107 of 2010 is concerned, it is the discretion of the Court and it has to be exercised sparingly, particularly to protect the interest of innocent, who have been falsely implicated. The facts of the prosecution case reveal that the petitioner is said to be the instigator like accused 5 and he has not taken any part in causing the assault on the deceased. Furthermore, the petitioner has not been identified by the eye-witnesses C.Ws. 12 and 13 in the identification parade. So taking into consideration these circumstances, I am of the opinion that the petitioner has made out a case for grant of anticipatory bail and to exercise the discretion vested with the Court under Section 438 of the Cr. P.C. as there is no overt act by the petitioner and he has not been identified by the witnesses. In the circumstances, the petitioner is entitled to the bail sought for. Hence, I answer Point No. 1 partly in negative and partly in affirmative and Point No. 2 in affirmative and proceed to pass the following: