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Karnataka High Court · body

2019 DIGILAW 980 (KAR)

Sameer Alias Sameer Peeran v. State Of Karnataka

2019-04-27

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. This bail petition is filed by the petitioner/accused No. 4 under Section 439 of Cr.P.C. in connection with Crime No. 221/2016 of Gandhi Chowk Police Station registered for the offences punishable under Sections 143, 147, 148, 120-B, 109, 302, 323, 504, 506 R/w Section 149 of IPC beside Sections 25 and 27 of Indian Arms Act. The accused is in judicial custody since from the date of his arrest, therefore, the learned counsel for the petitioner prays for enlarging him on bail among the grounds urged therein. 2. Heard the learned Senior counsel Sri. C.V. Nagesh, appearing for the petitioner and the learned High Court Government Pleader for respondent - State and perused the materials available on record relating to case in Crime No. 221/2016. 3. Factual matrix of the petition are as under:- It is stated in the complaint that the deceased Sabir Patel belongs to Youth Congress supported one Asif Mohammedgouse Inamdar in the election of Youth Congress held in the year 2011. Subsequently, the said person was elected in the election. Because of that reason, one Syed Fayazuddin and his associates were anguishing against the deceased Sabir and Asif. Further, in the year 2012, Syed Fayazuddin Mushriff and his followers did cut the hand of Asif Inamdar. In that light, in the year 2014, the Syed Fayazuddin Mushriff was murdered. A complaint was lodged in connection with the murder of Sayed Fayazuddin Mushriff and on the basis of the same, a crime came to be registered by the police in Crime No. 221/2016 and thereafter, the Investigating Officer has taken up the case for investigation and after investigation, laid the charge sheet against the accused in C.C.No.4978/2016 and the said case has been committed to Sessions Court in S.C.No.85/2018. 4. It is averred in the complaint that on 08.07.2016 at about 5.10 p.m., the complainant was proceeding on his motorcycle bearing registration No. KA-28/K-2653 and the deceased Sabir Patel was proceeding on another motorcycle bearing registration No. KA-28/EH-3072 along with other to see the house of their relatives, which was under construction, near Itagi Petrol Pump. After visiting the said place, they were waited for the brother of the deceased for some time. Since he did not arrive, they returned to their house. After visiting the said place, they were waited for the brother of the deceased for some time. Since he did not arrive, they returned to their house. When the deceased and complainant were returning to their house on their respective motorcycles through Athani road, near Old Water Tank, a white coloured Swift Car and Pulsar motorcycle came from opposite direction and hit to the motorcycle of the deceased Sabir Patel. As a result of the said impact, Sabir Patel fell down and thereafter, by leaving his motorcycle, he started running towards Siddeshwar Super Bazar Shop. It is further averred that the inmates of said Swift car and Pulsar motorcycle started chasing the said Sabir Patel. At the relevant point of time, accused Nos. 1 and 4 said to be holding pistols and other accused persons were holding choppers in their hands. When accused Nos. 1 and 4 fired at the Sabir, due to hit made by them in a fitted bullets, he fell down. At the relevant point of time, all together started assaulting with means of chopper and one Bade Peeran Mushriff was instigating the aforesaid remaining culprits to assault and to kill Sabir. It is further alleged that one Farhan Ahmedsab took up a big stone lying there and dropped on the head of the deceased, but unfortunately, it was fell down by the side of Sabir, this has been state in the supplementary statement given by the complainant. It is further averred in the complaint that the public gathered at the scene of crime secured ambulance and the complainant and others took the injured to the hospital, in order to provide treatment, but the doctor declared him as dead. The Investigating Officer has investigated the case by recording statements of the witnesses so also conducted seizure mahazar, said to be seized countrymade pistol used by the accused and also for having seized cartridge in a separate panchanama. The same has been reflected in the charge sheet laid by the Investigating Officer against the accused. 5. It is further averred in the complaint that on 07.07.2016 at about 6.00 p.m., Farooq Mohammedsab saw the F.M. Hotel Water Plant near PDJ Ground at Vijayapur, wherein the accused persons were hatching conspiracy to murder the deceased-Sabir Patel. The same has been reflected in the charge sheet laid by the Investigating Officer against the accused. 5. It is further averred in the complaint that on 07.07.2016 at about 6.00 p.m., Farooq Mohammedsab saw the F.M. Hotel Water Plant near PDJ Ground at Vijayapur, wherein the accused persons were hatching conspiracy to murder the deceased-Sabir Patel. But, the deceased had come out on bail and after watching his movements they have to murder the deceased as narrated in the complaint and also reflected in the FIR said to be recorded by the police and thereafter proceeded with the case for investigation wherein the Investigating Officer has recorded the statements of witnesses, drew the spot mahazar, seized the pistols said to be used by the accused Nos. 1 and 4 at the relevant point of time, the same reveals from the charge sheet laid by the Investigating Officer. 6. The learned senior counsel namely, Sri. C.V. Nagesh, appearing for the petitioner has taken me through the averments made in the complaint, so also the substances in the FIR said to be recorded by the police. Though it is alleged in the prosecution materials that this petitioner and accused No. 1 said to have fired with the pistols at the deceased Sabir Patel, but the post-mortem report indicates that only one bullet injury over the dead body of the deceased found. Even though the charge sheet has been laid against the accused, at this stage it cannot be said that there is a direct overt act attributed against the accused in eliminating the deceased and also with regard to causing of the injuries as indicated in the post -mortem report as well as other materials. 7. It is further contended that the bullet which has been recovered from the body of the deceased-Sabir Patel it does not tally with the country made pistol i.e., recovered at the instance of this petitioner being arraigned as accused No. 4. But the, FSL report said to be issued by the concerned authority also supports the case of this petitioner, wherein it reveals that the bullet found in the body of the deceased is not fired from the pistol which said to be recovered. The doctor who conducted the autopsy over the dead body and opined that the death of the deceased is due to hemorrhage shock and result of multiple injuries. The doctor who conducted the autopsy over the dead body and opined that the death of the deceased is due to hemorrhage shock and result of multiple injuries. The Investigating Officer has laid the charge sheet against the 24 persons. Except this petitioner and accused No. 5, all other accused are already released on bail. Learned senior counsel for the petitioner emphatically submitted that the petitioner is an innocent and he is a student studying in Bachelor of Education and he has passed his 1st Semester examination with first class, the study certificate as well as the statements of marks of the petitioner is also produced for the purpose of perusal. Moreover, the petitioner is suffering from Systemic Lupus Erythematosus (SLE) since 2017. On account of the said disease, the petitioner is suffering from low grade fever/photosensitivity, mouth and nose ulcers, muscle ache, joints-arthritis, etc. If the petitioner is kept behind the bar for a long period, his health may affect and he is required to take treatment frequently. The petitioner is ready to abide by any terms and conditions to be imposed by this Court while granting bail to him. These are all the grounds urged by the learned senior counsel and seeking for allowing the bail petition filed by the petitioner. 8. On the other hand, the learned High Court Government Pleader for the respondent - State has taken me through averments made in the FIR said to recorded by the police and it is based upon the complaint filed by the brother of the deceased Sabir Patel. On the fateful day, that this petitioner being arraigned as accused No. 4 along with accused No. 1 have fired at the Sabir Patel, as a result, he fell on the ground and made attempt to took heel from there, but the accused have surrounded and inflicted injuries as indicated in post-mortem report said to be issued by the doctor, who conducted autopsy over the dead body, wherein injury No. 17 reveals that firearm entry wound present over left side of back at the level of L2 vertebrae measuring 0.5cm x 0.5cm edges are red in color. It was tracked superficial in the muscle from left to right side and found just above the right greater trochanter of femur. It was tracked superficial in the muscle from left to right side and found just above the right greater trochanter of femur. Because of co-accused have already been enlarged on bail, the principle of parity cannot be extended to this accused and it cannot be ground for seeking relief of bail. This petitioner being arraigned as accused No. 4, he has used country made pistol in eliminating the deceased. Therefore, there are prima facie materials against this petitioner in commission of the alleged offences. It is submitted that if the accused is supposed to be released on bail, he would come in the way of the prosecution and would destroy the evidence. These are all the grounds urged by the learned High Court Government Pleader seeking for dismissal of the petition as the accused is not deserving for bail. 9. Keeping in view of the submission made by the learned senior counsel for the petitioner that this is successive bail petition filed by the petitioner, it is relevant to place reliance on the decision of the Hon'ble Apex Court in the case of Babu Singh and others v. State of U.P., (1978) 1 SCC 579 wherein at paragraph 2 it has held as under: "2. Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this Court on September 7, 1977. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While me surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over-turning an earlier negation. In this view, we entertain the application and evaluate the merits of pros and cons." 10. In the instant case, it requires to peruse entire materials available on record relating to the charge sheet as laid by the Investigating Officer against the petitioner. As already stated that in this crime there are in all 24 accused, accused Nos. In this view, we entertain the application and evaluate the merits of pros and cons." 10. In the instant case, it requires to peruse entire materials available on record relating to the charge sheet as laid by the Investigating Officer against the petitioner. As already stated that in this crime there are in all 24 accused, accused Nos. 1 and 4 said to be fired the deceased Sabir Patel, because of that impact, he fell on the ground and thereafter, other accused have assaulted by means of chopper and accused No. 5 made attempt to dropping of size stone on his head, but it has fell on the side of the body of the deceased, the same is reflected in the materials available on record. Therefore, it requires to look independently the materials relating to eliminating the deceased Sabir Patel and infliction of injuries over the person of the deceased, as indicated in post mortem report said to be issued by the doctor, who conducted autopsy over the dead body, wherein injury No. 17 reveals that firearm entry wound, but there is no existing bullet injury. The co-accused has already been enlarged on bail by this Court in Criminal Petition No. 200628/2018 on 13.08.2018 by imposing certain suitable conditions to safeguard the interest of prosecution. The materials secured by the Investigating Officer reveals that left hand of the deceased Sabir Patel has been chopped of due to assault made by the accused person by means of deadly weapons said to be used by the accused. The role of this petitioner being arraigned as accused No. 4 is that he shot at the deceased by means of country made pistol, the said country made pistol has been seized by the Investigating Officer during the course of investigation by conducting seizure mahazar in the presence of the panch witnesses, so also at the instance of the accused persons. However, it is relevant to state that insofar as changed circumstances as well as the materials available on record, that the Trial Court refused to exercise the discretion and pass the orders under Section 439 of Cr.P.C. the earlier petition filed by the accused came to be dismissed. However, it is relevant to state that insofar as changed circumstances as well as the materials available on record, that the Trial Court refused to exercise the discretion and pass the orders under Section 439 of Cr.P.C. the earlier petition filed by the accused came to be dismissed. The changed circumstance stated by the learned senior counsel for the petitioner is that the petitioner is suffering from systemic lupus erythematosus (SLE) since from 2017 and he being a student of Bachelor of Education in Anjuman-E-Islam College of Education, Vijayapur and he has passed first semester and also produced certificate for perusal in support of the grounds seeking relief of bail. Looking into the entire materials available on record, as well as involvement of the petitioner, it is said that the Investigating Officer has already been laid the charge sheet against the accused by thoroughly investigating the case during the course of investigation by recording statements of the witnesses and also secured materials. The materials secured by the Investigating Officer during the during the course of investigation are enough materials to lay the charge sheet against the accused, but the said materials are not enough to decline relief of bail as sought for by the petitioner. However, at this stage, it does not require detail discussion while considering the bail petition. It is relevant to state that bail is a rule and jail is an exception, it is cardinal principle of criminal jurisprudence it is based upon the materials available on records in charge sheet laid by the Investigating Officer. However, it is relevant to state that realism is the component of humanism, which is the heart of the legal system. The petitioner being a student, if he is supposed to be kept behind bar for a longer period, his career would be ruined in society. Therefore, it is said that, there are substances in the contentions of the learned senior counsel for the petitioner in seeking relief of bail though this is a successive bail petition filed by this accused. However, the learned High Court Government Pleader emphatically submits that if the petitioner is released on bail, certainly, he would come in the way of prosecution case and would destroy the evidence. The said apprehension could be curtailed by imposing suitable conditions to safeguard the interest of the prosecution. However, the learned High Court Government Pleader emphatically submits that if the petitioner is released on bail, certainly, he would come in the way of prosecution case and would destroy the evidence. The said apprehension could be curtailed by imposing suitable conditions to safeguard the interest of the prosecution. Therefore, for the aforesaid reasons, as well as under the facts and circumstances of the case, I am of the considered opinion that the petitioner/accused No. 4 is deserving for bail. Accordingly, I proceed to pass the following: ORDER The bail petition filed by the petitioner/accused No. 4 under Section 439 of Cr.P.C., is hereby allowed subject to the following conditions: 1. The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- with two sureties for the likesum to the satisfaction of the concerned Court where the case in S.C.No.85/2018 arising out of Crime No. 221/2016 of Gandhi Chowk Police Station is pending. 2. The petitioner shall not tamper or hamper the prosecution witnesses. 3. The petitioner shall not leave the jurisdiction of Vijayapur District without prior permission from the competent Court of law. 4. The petitioner shall appear before the Court on all dates of hearing without fail. 5. The petitioner shall not indulge in any criminal activities henceforth. If the petitioner violates any of the conditions, the bail order shall automatically stand ceased.