LAWS(KAR)-2013-12-94

MAHESHA ALIAS KUNCHA Vs. STATE OF KARNATAKA

Decided On December 11, 2013
Mahesha alias Kuncha Appellant
V/S
The State Of Karnataka Respondents

JUDGEMENT

(1.) The petitioner, who is arrayed as accused No. 1 in SC No. 86/2012 on the file of the Sessions Judge, Chamarajanagar, registered for the offences under Sections 302 r/w 34 of IPC is before this Court praying to enlarge him on bail. It is the case of the prosecution, on 06.05.2012 at about 5.45 pm when the deceased-Ravi was with CW1 near Guru Shop situated at Chamarajanagara Town, this petitioner along with the other accused in the case came to the said place, picked up quarrel with the deceased-Ravi in connection with the deceased making galata with CW11, brother of this petitioner and thereafter at the instigation of accused Nos. 5 & 6, accused No. 3 and 4 assaulted the deceased with hands. This petitioner picked up a stone which was lying near the said place and assaulted the deceased on back of his head. Thereafter, accused No. 2 assaulted the deceased with the same stone on the right side chest and other parts of the body and committed his murder.

(2.) The learned counsel for petitioner contends the other accused in the case, namely, accused Nos. 2 to 6 have been released on bail by this court. The overt act attributed to the petitioner is in the quarrel that was going on between accused and the deceased-Ravi, after accused Nos. 3 and 4 assaulted the deceased with hands, he picked up a stone lying at the said place and assaulted on the back of the head of the deceased. Accused No. 2 again assaulted the deceased with the same stone. Since the assault has been made by this petitioner at the spur of moment in a quarrel that had ensued between him, other accused and the deceased in which quarrel the petitioner has inflicted the injury on the back side of the head of the deceased, it cannot be said that he had inflicted that injury on the back of the head with an intention and knowledge that would result in his death and therefore, no offence is made out for the offence punishable under Section 302 of IPC. He further submits since all other accused in the case, namely, accused Nos. 2 to 6 who have assaulted the deceased in the same manner as alleged against this petitioner have been released on bail, the petitioner also be released on bail.

(3.) The application filed by the petitioner is opposed by the State. The material on record reveals initially the quarrel ensued between the accused on the one hand and the deceased on the other in respect of the deceased assaulting CW11, who is brother of this petitioner. While the said quarrel was going on accused Nos. 5 & 6 instigated accused Nos. 1 to 4 to assault the deceased. Thereafter accused Nos. 3 and 4 assaulted the deceased with hands. At that juncture this petitioner picked up a stone lying at the said place and assaulted the deceased on the back side of the head, which has no doubt resulted in his death. Accused No. 2 has assaulted with the same stone the deceased but he has been released on bail by this court. Having regard to the facts appearing in the first information, as the overt act attributed to this petitioner is that he has picked up stone that was lying on the spot and has assaulted the deceased, in the circumstances, it cannot be said that the act of the petitioner is with an intention or knowledge that it would result in death of the deceased. Having regard to the fact that the other accused have already granted bail by this court, I do not find any reason to decline the request of the petitioner to enlarge him on bail. Accordingly, I proceed to pass the following:--