Case Note & Summary
The petitioner, Kirankumar @ Kulla Kiran, accused No.1, filed a criminal petition under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking bail in Crime No.124/2020 registered at Doddapete Police Station, Shivamogga, for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC). The case was pending as S.C.No.87/2020 on the file of the III Additional Sessions Judge, Shivamogga. The prosecution alleged that on the date of the incident, the petitioner along with accused Nos.2 to 4 assaulted the deceased Manohar Shetty with stones, causing his death. The background involved political rivalry during Shivamogga Mahanagara Palike elections, where the deceased canvassed for Congress and the accused supported BJP. After the BJP candidate won, the deceased used to scold the accused. About two months prior, the accused had removed stones meant for culverts and temple. On the day of the incident, the accused allegedly assaulted the deceased with those stones. The petitioner's counsel argued that the petitioner was falsely implicated, no recovery was made from him, and the test identification parade was not conducted. The High Court Government Pleader opposed bail citing the gravity of the offence. The court, after hearing both sides, noted that the prosecution's case primarily relied on the evidence of CWs 1 and 2, who were not eyewitnesses. The court observed that the overt acts attributed to the petitioner were not clearly established, and the weapon used was not recovered from him. The test identification parade was not conducted, which weakened the identification. Considering these factors, the court held that the petitioner had made out a prima facie case for bail and allowed the petition, directing the petitioner to be released on bail subject to conditions including furnishing a bond of Rs.1,00,000 with two sureties, not tampering with evidence, and appearing before the court regularly.
Headnote
A) Criminal Procedure Code - Bail - Section 439 CrPC - Prima Facie Case - The court considered whether the petitioner-accused No.1 should be enlarged on bail for the offence of murder under Section 302 IPC. The prosecution alleged that the petitioner along with others assaulted the deceased with stones, but the evidence indicated that only one accused inflicted the fatal injury and no recovery was made from the petitioner. The court held that the petitioner has made out a prima facie case for bail, considering the absence of recovery and the fact that the test identification parade was not conducted. (Paras 1-6) B) Indian Penal Code - Murder - Section 302 r/w Section 34 IPC - Common Intention - The court examined the applicability of Section 34 IPC. The prosecution's case was that the petitioner and others shared common intention to cause death. However, the court noted that the overt acts attributed to the petitioner were not clearly established and the weapon used was not recovered from him. The court held that the ingredients of Section 34 were not prima facie satisfied against the petitioner. (Paras 3-6) C) Evidence - Test Identification Parade - Non-conduct of TIP - The court observed that the test identification parade was not conducted by the prosecution, which weakened the identification of the petitioner as an assailant. This factor weighed in favor of granting bail. (Para 5)
Issue of Consideration
Whether the petitioner-accused No.1 is entitled to bail under Section 439 of Cr.P.C. in a murder case registered under Section 302 r/w Section 34 of IPC.
Final Decision
The petition is allowed. The petitioner-accused No.1 shall be enlarged on bail in Crime No.124/2020 of Doddapete Police Station (S.C.No.87/2020) for the offence under Section 302 r/w Section 34 of IPC, subject to conditions: (i) petitioner shall execute a personal bond for Rs.1,00,000 with two sureties; (ii) shall not tamper with prosecution evidence; (iii) shall appear before the trial court on all hearing dates; (iv) shall not indulge in similar offences; (v) shall mark attendance once in a month before the Investigating Officer until trial concludes.
Law Points
- Bail under Section 439 CrPC
- Prima facie case
- Section 302 IPC
- Section 34 IPC
- Recovery of weapon
- Test identification parade
- Criminal antecedents
