HONNAIAH HONNE GOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) ON 11 -5 -1998 at 11.00 a.m. C.W.I. Ramakrishna Gowda appeared before the K.R. Pet Police and informed the police that at 7.30 a.m. the accused persons attacked his father and murdered him in the farm house by forming themselves into an unlawful assembly and therefore, the police registered a case in Cr. No. 63/ 1998 for the alleged offences punishable under Sections 143, 144, 147, 148, 448, 302 read with Section 149, IPC. After completing the investigation, the police filed charge sheet against accused persons and arrested some of the accused persons. However, the 5th accused M.S. Girigowda is treated as absconding. Honnaiah and Subbegowda who were in judicial custody filed Criminal Petition No. 3014/1998 under Section 439, Cr. P.C. M.S. Girigowda who is treated as absconding filed Cr. P. 28/ 1999 seeking anticipatory bail under Section 438, Cr. P.C.

(2.) NOTICE of these two petitions was given to the State Public Prosecutor who has med his detailed objections. Since these two petitions arise from the same C.C. No. i.e. C.C. 973/1998, after hearing both the parties, these petitions are disposed of by this order. Retain a copy of this order in each me.

(3.) HOWEVER , the learned Counsel for the State contended that these petitioners cannot claim parity with that of M.V. Nage Gowda referred to above and in support of his argument he has drawn my attention to the order passed by this Court granting anticipatory bail in his favour. From a perusal of the order, it is clear that the investigation itself disclosed to some extent that the petitioner's presence at the place of incident was doubtful - as he being an employee of a local Bank was working in the Bank - on that day and also the investigation has not definitely disclosed that he was personally involved in the incident. But in this case the statements of C.Ws. 2 and 3 who are son and servant of the deceased were also sleeping in the farm - house on the previous night. At about 6.30 a.m. both of them went out to answer the call of nature, thereafter they were picking the fallen coconuts in the garden. At that stage they heard the cry of the deceased from the farm - house. Therefore, they ran to the farm - house from the back side and peeped through the window where they found A -1 to A -4, A -6 and A -8 inside the house and were assaulting the deceased with various types of weapons. Immediately both of them came to the front door and attempted to enter the house. At that time these three petitioners who were standing at the threshold stopped C.Ws. 2 and 3 from entering the room where the father of C.W. 2 was being battered. This clearly shows the overt act of these three petitioners who prevented C.Ws. 2 and 3 from entering into the house to save the deceased from being assaulted. Such being the case the contention of the learned SPP that they are also equally liable for the barbaric act of other accused persons who had actually assaulted the deceased and their act is entirely covered under Section 149, IPC has some force.