Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1997 (KAR)

Irshad v. State Of Karnataka

2020-10-05

MOHAMMAD NAWAZ

body2020
JUDGMENT Mohammad Nawaz, J. - The petitioner, arrayed as accused No.1 in Crime No.74/2018 of Hubli Town Police Station has filed this Petition under Section 439 of Cr.P.C. seeking to enlarge him on bail. 2. I have heard the learned Senior Counsel Sri.Ravi B.Naik appearing for petitioner and the learned HCGP for respondent State. 3. On the basis of a complaint lodged by one Mahammedjuned Mujavar, the aforementioned case was registered against Moseen, Aqeel and another for the offences punishable under Sections 307, 324, 302 R/w. Section 34 ofiPC. On completion ofinvestigation, charge sheet has been filed for the offences under Sections 302, 114 R/w. Section 34 ofiPC against four accused persons, arraying the petitioner as accused No.1. 4. The case of the prosecution is that, petitioner/accused No.1 had given a sum of Rs.10,000/- to his relative by name Shabaaj asking him to deposit the same into the bank. The said Shabaaj informed him that the money was spent by the deceased namely, Fairoj and Riyaz and they are not ready to return the amount. In this background on 07.06.2018, during night hours, accused No.1 made a phone call to Fairoj and abused him. Thereafter at about 00.05 hours both the deceased as well as one Aqeel came near Ajantha Hotel, situated near Gokak building on J.C.Road, Hubbali and picked-up quarrel with the accused and started abusing him. At that time, accused Nos.2 and 3 instigated accused No.1 and they held the deceased. Accused No.1 stabbed both the deceased namely, Riyaz and Fairoj and committed murder. 5. Learned senior counsel appearing for the petitioner has contended that the incident has taken place in the mid night. A reading of the First Information Report would disclose that there are no eye-witnesses to the incident. When the first informant went to the spot, both the deceased were already lying down with injuries. The alleged eye-witnesses came to the spot subsequently and therefore, they could not have witnessed the incident. If their statements are perused, it is seen that they came to know about the incident from others. The learned counsel further submits that the name of the petitioner is not in the FIR. Only after the arrest of the accused, the witnesses were secured to the police station and their statements were recorded to suit the prosecution case. If their statements are perused, it is seen that they came to know about the incident from others. The learned counsel further submits that the name of the petitioner is not in the FIR. Only after the arrest of the accused, the witnesses were secured to the police station and their statements were recorded to suit the prosecution case. He submits accused Nos.2 to 4 are already enlarged on bail and therefore, the petitioner is also entitle for bail on the ground of parity. He submits that the petitioner is ready and willing to abide by any conditions which may be imposed by the Court and seeks to allow the petition. 6. Per contra, learned HCGP would contend that CWs.16 to 19 are the eye-witnesses to the incident. They have clearly stated that it is accused No.1, namely, petitioner herein who stabbed both the deceased with a knife and committed the murder. She submits that in view of the statement of the eye-witnesses, there is a prima-facie case against the petitioner. Accordingly, seeks to reject the petition. 7. It is the case of the prosecution that the petitioner herein had handed over an amount of Rs.10,000/- to his relative by name Shabaaj (CW- 15) asking him to deposit the said amount in State Bank ofindia. However, the said amount was not deposited by him. When the petitioner questioned him for not having deposited the amount, CW-15 informed him that the money was spent by deceased Fairoj and Riyaz. In this background, on 07.06.2018 when accused Nos.1 to 3 were sitting near Ajantha Hotel, opposite Manjunath Hair Cutting shop, accused No.1 called Fairoj over phone and asked him to return the money. Fairoj abused him and after some time, he called back Accused No.1 to enquire about the location and thereafter, both the deceased as well as accused No.4 came to the spot. A quarrel ensued between the deceased and accused. In the said quarrel, the deceased assaulted accused No.1. At that time, accused Nos.2 and 3 instigated accused No.1 to commit the murder and held Riyaz tightly. At their instigation, accused No.1 stabbed both Fairoj and Riyaz with the knife. 8. Perusal of the averments in the FIR go to show that when the first informant went to the spot, the deceased had already sustained injuries and they had fallen on the ground with injuries on their abdomen. At their instigation, accused No.1 stabbed both Fairoj and Riyaz with the knife. 8. Perusal of the averments in the FIR go to show that when the first informant went to the spot, the deceased had already sustained injuries and they had fallen on the ground with injuries on their abdomen. When he enquired accused No.3- Moseen and accused No.4-Aqeel about the incident, they tried to assault him. He raised hue and cry and hearing the same, watchman of the hotel as well as others came to the spot. Seeing them, all the accused f led from the scene of offence. 9. Perusal of the first information report does not indicate that the complainant is an eye witness to the incident. However, he has stated that the watchman of the hotel and others came to the spot immediately on hearing the commotion. CWs.15 and 19 are stated to be the eyewitnesses to the incident. Their statements are recorded on 8/6/2018. Their further statements were recorded on 11/6/2018 which is after the arrest of accused persons. It is the contention of the learned Senior Counsel that in the statement recorded on 11/6/2018, the witnesses have stated that they came to know about the incident from the arrested accused persons in the police station. Therefore, he contends that the further statements of the said witnesses cannot be accepted. 10. To counter the above arguments, the learned HCGP contends that, even though the further statements of the witnesses are recorded after the arrest of the accused, CWs.16 to 19 have clearly stated in their statements recorded on 08/06/2018 that they have seen two persons holding the deceased and one of the accused stabbing both the deceased on their abdomen. She submits that the petitioner has been identified by them as the one who stabbed the deceased. 11. The name of the petitioner is not mentioned in the FIR. Perusal of the first information report go to show that the first informant is not an eyewitness to the incident in question. He has stated that immediately on hearing the commotion, the watchman of the hotel as well as few others came to the spot. It is the case of the prosecution that accused Nos.2 and 3 held the deceased and at their instigation, accused No.1 stabbed both the deceased on their abdomen. He has stated that immediately on hearing the commotion, the watchman of the hotel as well as few others came to the spot. It is the case of the prosecution that accused Nos.2 and 3 held the deceased and at their instigation, accused No.1 stabbed both the deceased on their abdomen. The veracity of the statements of the eyewitnesses have to be appreciated during the course of trial. It is not in dispute that the deceased themselves went to the spot where the petitioner and other two accused were present and picked up a quarrel and assaulted accused No.1 with hands. In the said quarrel, at the instigation of accused Nos.2 and 3, accused No.1 is said to have stabbed the deceased. It is not in dispute that accused Nos.2 to 4 are already enlarged on bail. This Court has granted bail to accused No.2 in Crl.P.No.102113/2019 vide order dated 12/12/2019 and accused No.3 in Crl.P.No.100097/2019 vide order dated 15/7/2019. 12. Considering the entire facts and circumstances of the case and considering the fact that the charge sheet is already filed and petitioner-accused No.1 is in judicial custody from 10/6/2019, I am of the view that the petitioner can be enlarged on bail by imposing suitable conditions. Accordingly, the following: ORDER a) Petition is allowed. b) Petitioner-accused No.1 in Crime No.74/2018 of Hubli Police Station, now pending in S.C.No.111/2018, on the file of V Additional District and Session Judge, Dharwad, sitting at Hubli, for the offences punishable under Sections 302, 114 read with Section 34 of IPC, shall be released on bail subject to the following conditions: i) The petitioner shall execute a bond for a sum of Rs.2,00,000/- with two sureties for the likesum to the satisfaction of the jurisdictional Court. ii) The petitioner shall not tamper with the prosecution witnesses either directly or indirectly. iii) The petitioner shall furnish his correct address and shallintimate the change in address, if any. iv) The petitioner shall not leave the jurisdiction of the trial Court, without prior permission of the learned Sessions Judge. v) The petitioner shall be regular in attending the trial proceedings. vi) If any of the above conditions are violated, then the prosecution is at liberty to move for cancellation of the bail order. Any observations made in this order shall not inf luence the trial of the case in any manner.