SIDRAM Vs. THE STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned Additional State Public Prosecutor. It is the case of the prosecution that the complainant Kasturibai, resident of Hakkinagutti Village was the sister of Shivamma. She has lodged a complaint before the Sindagi police station against unknown persons. Initially to the effect that Shivamma who was a Devadasi by profession was dead. However, though she was a Devadasi she had a son, aged about 15 years. Shivamma was last seen when she left the village on 05.06.2012. Thereafter she did not return. On 6.06.2012 at about 1.00 p.m. one Basavaraj Dodamani had telephoned the complainant and informed her that there was a dead body of a female lying near the land of one Manoj and that she resembled her sister, Shivamma. Therefore, the complainant went to the said land along with her relatives and identified the dead body and thereafter lodged a complaint on the same day which was registered in Crime No. 131/2012 for an offence punishable under Section 302 of Indian Penal Code against unknown persons. The Circle Police Inspector, Sindagi Police Station, later found that Shivamma also belonged to a Scheduled Caste and therefore submitted a requisition to the jurisdictional Magistrate to incorporate the Sections 3(1)(x) and 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. (Hereinafter referred to as the 'Act', for brevity) Thereafter by virtue of insertion of the above said provision the Deputy Superintendent of Police took over the investigation.

(2.) ACCORDING to the prosecution the motive behind the death of Shivamma was that she was working in the land of the petitioner as an agricultural labourer and the petitioner had developed an illicit relationship with her, though the petitioner was married man. Shivamma had started demanding that he marry her, the petitioner went on postponing the subject and tried to avoid the same. Finally the petitioner decided that the only way he could stop the nuisance was to get rid of her and hence took the assistance of accused No. 5 namely Shrimantraya who hatched a plan along with the other accused Nos. 1 to 4. As per the plan, on 5.6.2012 at about 10.00 a.m., the petitioner had called Shivamma to come to Sindagi at about 4.00 p.m. and he along with the other accused went on three motorcycles and the petitioner had waited near Ambedkar Circle in Sindagi. When Shivamma came he took her on his motorcycle. It is alleged that he used the mobile phone of the deceased, to call accused No. 5, to inform him that Shivamma had come to Sindagi and that the plan was on. Thereafter the petitioner is said to have taken Shivamma towards Chikka Sindagi and the other accused had followed them on their motorcycles. They all met at Madhuvan Dhaba and had drinks followed by dinner, when it was almost dark the petitioner is said to have told Shivamma that they would to go Bijapur and they left. All of them were on motorcycles with the others riding pillion. Shivamma was riding pillion with the petitioner and when they crossed Devarahipparagi Village and nearing Shivanagi Village it was dark, but it was not so dark enough for them to carry out their plan. So they turned around towards Sindagi and when they came near Kannolh Village they found a secluded place where petitioner No. 1 is said to have stopped and taken Shivamma to the land near by and had engaged her in sexual intercourse. Then he had called out to accused Nos. 2 to 4 who immediately came to Shivamma and immobilized her and with her own saree she was strangulated, while the other accused smashed her face with stones. This was at about 8.30 p.m. Then the jewellery on the neck of Shivamma was removed as well, as her cell phone. All the accused returned back to Sindagi, had more drinks in the Dhaba and then disbursed.

(3.) THE learned counsel for the petitioner while claiming that so called conspiracy hatched by petitioner No. 1 along with accused Nos. 2 to 4 as being imaginary and that a false case has been foisted against the petitioner. It is pointed out that there are no eyewitnesses to the incident and the manner in which the sequence of event are narrated would necessarily indicate that several members of the public would have seen the accused together with the deceased. There is not a single witness whose statement has been recorded to substantiate the case of the prosecution. The entire theory of the prosecution is based on the alleged voluntary statements of accused Nos. 2 to 4. This by itself is not sufficient to bring home the charge. The petitioner is not before this court seeking his acquittal but only seeks bail and therefore for the prosecution to claim that a prima facie case has been made out, the call sheet and the call records of mobile cell phone of accused No. 2 and Shivamma would have nothing to do with the involvement of the petitioner. The claim that the petitioner was having an illicit relationship with Shivamma and that of her harassing the petitioner to marry her led to the conspiracy being hatched is a matter, which would have to be established by the prosecution beyond all reasonable doubt. This is possible only at the trial. In the absence of any prima facie case in this regard when the primary motive alleged against the petitioner is not capable of being established prima facie to hold that the petitioner was instrumental in having caused the death of Shivamma cannot be accepted on the face of it. The petitioner is a married man with two children and a respectable person owning land. Therefore, the allegations and the continued custody of the petitioner has already damaged his reputation and the same being continued indefinitely in the face of the sketchy material that is sought to be cited in support of prima facie case of the prosecution is not at all sustainable and the court below having taken a view that it was sufficient to bring home the charge was an unfair and unjust conclusion. The deceased admittedly was a Devadasi and it is not known as to the number of relationships that she had maintained and the possible reasons for her death. Hence, the theory of the prosecution naming the petitioner alone as having had a relationship with the deceased is unnatural to contend that the petitioner was keeping the woman as his mistress and also to state that she was an agricultural labourer working on his land. This is hardly capable of being accepted, if indeed the petitioner was maintaining her as his mistress, he would certainly have kept her in comfort and would not be expected to exploit her labour and also keep her as his mistress. Therefore, the learned counsel would contend that the prosecution has not made out a case whatsoever at this point of time and that the petitioner ought to be enlarged on bail.