IN THE HIGH COURT OF KARNATAKA CIRCUiT BENCH AT DHARWAD DATED THIS THE 10 Th1 DAY OF FEBRUARY 2011 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL PETITON No.8058/2010 BETWEEN: Basanagouda Gangappa Bhadrakali, Age: 55 years, 0cc: Agriculture, Rio. Hudali, Tal, and Dist. Belgaum. . . Petitioner (By Shri. A.G.Mulawadmath, Advocate) AND: The State of Karnataka, Represented by State Public Prosecutor, Dharwad, (Marihal Police Station). .. . Respondent (By Shri. Vinayak S. Kulkarni, Government Pleader) This Criminal Petition is filed under Section 439 of the Code of Criminal Procedure, seeking to released on bail in S.C.No.18/2010 (Marihal P.S. Crime No.174/2009) for the offences punishable under Sections 302, 324, 504 of the Indian Penal Code and under Section 24 of the Arms Act. This petition coming on for orders this day, the Court made the following: 2 ORDER Heard the learned counsel for the petitioner and the learned Government Pleader. 2. The brieffacts ofthe case are as ibliows: One Malagouda Shivanagouda Bhadrakali, resident of Hudali, had lodged a complaint with the Marihal Police Station on 11.10.2009. It was alleged that the petitioner who is the uncle of the complainant resides in a neighbouring house. It is stated that the complainant has yet another house in the village apartfromtheoneatthefhrmanditwashishabitthat,he would sleep sometimes in the house, in the village and on other occasions at the farm house. It is the claim that the complainant’s father and mother as well as his brother and sister were all residing together. It is further alleged that the petitioner had picked up a quarrel with the complainant’s family and therefore, the land belonging to the complainant’s had remained fallow. The petitioner was given to threaten the complainant and Ms father every now and then, that if they sought to cultivate the land, they would come to harm. The $ 3 elders of the village however, had intervened and advised them that the land should not be allowed to remain fallow and it should be cultivated. The complainant’s Ibmily thus were cultivating the land. The petitipner therefore, nurtured a grudge against the complainant and his family. On 11.02.2009 at about 06:30 p.m. the complainant was cutting wood at his home and hismotherwaspreparingfoodandhisfatherwasengagedin the backyard. The petitioner is said to have come with a gun and abused the father of the complainant and shot him in his abdomen, who fell to the ground. The mother of the petitioner was also threatened with the gun, when she pleaded with Mm not to shoot anybody, the petitioner thereafter, assaulted the complainant not with an intention to attack him but in private defence. At this time, the daughter of the petitioner had also joined the fray and when she got in the way, she was also injured with the axe the complainant thereafter, ran towards the village and gathered other people. When he came back, he found that his father was already dead. The complainant therefore, lodged a complaint with the Marihal Police Station, 4 narrating the above facts. On the very day of the incident, the wife of the petitioner also lodged a complaint with the Marihal Police Station, alleging a totally different version of the events. Where it was sought to be made out, that the complaint had attacked the petitioner and his daughter and that it was in his defence that the petitioner had shot the complainant’s father and also tried to attack the complainant as well as his mother. That was lodged as a counter case. It transpires that the petitioner had approached the Court below seeking enlargement on bail. The same was rejected by the Court below, holding that the sequence of events are such, that it was difficult to make out as to who was the aggressor and who was the victim. In view of the case and counter case, prima facie, the Court was satisfied by the petitioner to be the aggressor and therefore, rejected the bail application. The petitioner thereafter, approached this Court, but however withdrew the petition while claiming that he would renew his application, if the trial did not commence expeditiously. The present petition is therefore, the second petition filed by the petitioner. 5 3. In so far as the case and counter case are concerned, in the case lodged by the wife of the petitioner, the Police have filed ‘B” Final report and the petitioner having filed a protest memo, the Court below however, sought to proceed with the criminal case lodged by the complainant while the case filed by the wife of the petitioner was not sought to be tried along with the same. Hence, yet another Criminal Petition No.8479/2010 was filed before this Court. This Court by order dated 17.01.2011 has stayed further proceedings in the criminal case lodged by the complainant, till such time that the protest memo, and the summary case in No.136/2010, on the protest memo, filed by the petitioner is taken up for a consideration and an appropriate order is passed. 4. In this background, the learned counsel for the petitioner would submit that the sequence of events would not necessarily make the petitioner the aggressor. The reconsideration of the sequence of events by the Court below and the investigating agency as well, on the complaint lodged by the complainant. Where it is held by the Court below, that it 6 ought to be the subject matter of a full-fledged trial, Hence, in view of the case and counter case and in the circumstances that the complainant who had himself caused grievous injuries to the petitioner as well as his sister has been allowed to remain at liberty, the petitioner is sought to be incarcerated. He has been in custody for more than one year and therefore, would submit that having regard to the settled principles, in circumstances, where there is a case and counter case and if the sequence of events cannot be clearly demonstrated as making out one as the aggressor and the other the victim. It necessarily would have to await the findings at a full fledged trial and therefore, the petitioner be enlarged on bail, on such terms and conditions as this Court may impose. 5. The learned Government Pleader has filed statement of objections to contend that the incident has occurred not in the petitioner’s house as is sought to be made out but in the complainant’s house. The circumstance that the incident has occurred around the house of the complainant would necessarily indicate that the petitioner was clearly the 7 aggressorandtheclaimthatthedeceasedwassoughtinself defence, is also not capable ofacceptable since the pellets ofthe shot of gun had hit every several vital organs, the abdomen, lungs, kidney, urinary system, which indicated that the petitioner was clearly hell bent on causing death of not only the deceased, but the others ofthe family. 6. It is on this prima facie finding ofthe Court below that it has rejected the bail application and in the face of several eye witnesses, namely, C.W.l - the complainant, C.W.4 - injured eyewitness, C.W.1O - daughter of the petitioner, C.W.1 1 — wife of the petitioner are all eyewitnesses to the incident and they have stated that the petitioner was clearly armed with a shot gun and he was out to commit murder. Therefore the petition be rejected while the learned counsel by way of reply would submit that he shot the deceased. This was when the complainant had attacked him with an axe and his sister as well, that he was compelled to bring out the shot gun and shot the complainant when the deceased got in the way and had suffered the injuries. 8 7. The above sequence of events which are prima facie findings of the Court below and which emerge from the complaint and the counter complaint, do not squarely identify the petitioner as the aggressor, nor can it be said that the complainant was certainly the aggressor. The admitted circumstances that there was animosity between the families of the complainant and the petitioner and that the incident had occurred in the heat of the passion would necessarily require that there be a full fledged trial to arrive at findings of fact as to who in fact was the aggressor and who in fact the victim. The statements of several witnesses would also have to stand the test of cross-examination and findings at the trial. The serious injuries caused to the petitioner and his sister cannot be over looked. Therefore the petitioner has made out a case for enlargement on bail the petitioner shall be enlarged on bail subject to the following conditions: 1) He shall furnish a personal bond for a sum of25,OOO/-, with a solvent surety for a like sum, to the satisfaction of the trial Court. 9 2) He shall report to the Jurisdictional Police on every Monday and Friday between 02:00 p.m. and 05:00 p.m., in order to ensure his good behaviour, until further orders by this Court. 3) He shall not leave the jurisdiction of the trial Court without seeking leave of that Court. 4) He shall not seek to induce or threaten the prosecution witnesses. 5) He shall attend the trial Court on all dates of hearing without fail subject to the Court granting exemption for good and valid reason. Sd! Rsh JUDGE