- 1 - NC: 2025:KHC-D:521 CRL.P No. 103205 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 103205 OF 2024 (439(Cr.PC)/483(BNSS)) BETWEEN: YERREPPA @ YERAPPA S/O. LATE BHIMAPPA AGE. 35 YEARS, OCC. AGRICULTURE, R/O. ASHRAYA COLONY, NEAR ASUNDI VILLAGE, TQ. AND DIST. BALLARI. …PETITIONER (BY SRI. V.P.VADAVI, ADVOCATE) AND: THE STATE OF KARNATAKA BY PSI P.D.HALLI POLICE STATION, BALLARI, REPRESENTED BY SPP, HIGH COURT PREMISES, DHARWAD-580011. …RESPONDENT (BY SMT. GIRIJA S. HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. (483 OF BNSS), SEEKING TO ALLOW THE PETITION AND ENLARGE THE PETITIONER/ACCUSED NO.1 HEREIN ON REGULAR BAIL FOR THE CASE REGISTERED IN CRIME NO.90/2023 (P.D. HALLI P.S. BALLARI), DATED 30.12.2023, PENDING ON THE FILE OF I ADDL.DISTRICT AND SESSION JUDGE, BALLARI IN S.C. NO.34/2024, FOR THE OFFENCE PUNISHABLE U/S 302 OF IPC, DATED 31.05.2024. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.16 09:49:46 +0530 - 2 - NC: 2025:KHC-D:521 CRL.P No. 103205 of 2024 ORAL ORDER The petitioner, who is facing trial for the offences punishable under Sections 302 of the Indian Penal Code, 1860, is seeking regular bail. 2. The case of the prosecution is that the deceased and the accused were in love with each other and they were residing together in Asundi Village. After some days, the accused started to suspect her chastity and, with an intention to kill her, on 25.12.2023, at about 1.00 p.m., the accused took his wife/complainant to the land of Goudru of Asundi Village, and asked her to consume poison or prove that she really was in love with him, and the accused by pretended to consume poison coerced the deceased to consume poison. After consuming poison, the complainant fell unconscious and, at that time, the accused assaulted on her ribs, pushed her and attempted to kill her. The deceased was taken to VIMS Hospital, Ballari, where she gave an oral complaint to the police. Based on that complaint, the police registered a case against the petitioner in Crime No. 90/2023 for offences punishable under Sections 307 and 323 of the IPC. Later, while undergoing treatment, the complainant succumbed to her injuries, and Section 302 IPC was subsequently added. 3. Learned counsel for the petitioner submits that the alleged dying declaration of the deceased does not inspire confidence. He argues that prosecuting the petitioner solely on the basis of the dying declaration, in the absence of any corroborative - 3 - NC: 2025:KHC-D:521 CRL.P No. 103205 of 2024 material, would amount to an abuse of the process of law. Therefore, the petitioner is entitled to the grant of bail. 4. In response, the learned High Court Government Pleader for the respondent-State contends that, while undergoing treatment in the hospital on 31.12.2023, the deceased gave a dying declaration before the Tahsildar, substantiating the allegations against the petitioner. It is argued that the dying declaration is trustworthy and inspires confidence, and therefore, the petitioner is not entitled to bail. 5. After considering the arguments of learned counsel for the parties, the following observations are made: The alleged incident, where the petitioner compelled the deceased to consume poison, occurred on 25.12.2023. The deceased lodged an oral complaint while undergoing treatment on 30.12.2023. During the intervening period, the deceased was unconscious. The dying declaration was recorded on 31.12.2023 by the concerned Tahsildar. 6. The apex Court in the case of Irfan @ Naka Vs. The State of Uttar Pradesh1, has ruled that the Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant, and once the court is satisfied that the declaration was true and voluntary, 1 2023 INSC 758 - 4 - NC: 2025:KHC-D:521 CRL.P No. 103205 of 2024 undoubtedly, it can base its conviction without any further corroboration. The Apex Court in para 62 has further ruled as follows: “62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation/ fiction of the dying person’s imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? - 5 - NC: 2025:KHC-D:521 CRL.P No. 103205 of 2024 7. The trustworthiness and credibility of the dying declaration are matters to be adjudicated during the trial. The petitioner has been in judicial custody since 30.12.2023, and the trial has not yet commenced. Prolonged pre-trial detention goes against the principles of liberty enshrined under Article 21 of the Constitution of India. Hence, the petitioner has established a prima facie case for being granted regular bail. 8. Hence, I pass the following: ORDER i) The petition is allowed. ii) The petitioner/accused is enlarged on bail in S.C. No.34/2024 on the file of the I Additional District & Sessions Judge, Ballari, arising out of Crime No.90/2023, registered by P.D.Halli Police Station, P.D. Halli, Ballari, subject to following conditions: a) Petitioner/accused shall furnish indemnity bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the jurisdictional Court. b) He shall appear before the Court as and when required. c) He shall not threaten or allure the prosecution witnesses in whatsoever manner. - 6 - NC: 2025:KHC-D:521 CRL.P No. 103205 of 2024 d) He shall not get involved in similar offences. e) He shall not leave the territorial limits of the Trial Court without prior permission of the Trial Court. Sd/- (HEMANT CHANDANGOUDAR) JUDGE KMS Ct:vh List No.: 2 Sl No.: 4