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2024 DIGILAW 1536 (AP)

SHAIK JILANI @ JANI v. STATE OF ANDHRA PRADESH

2024-11-06

V.R.K.KRUPA SAGAR

body2024
ORDER: V R K KRUPA SAGAR, J. This Criminal Petition, under Sections 437 and 439 of Cr.P.C. (New Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ), is filed by the petitioner/A.1 seeking regular bail in Crime No.184 of 2024 of Vinukonda Police Station, Palnadu District, registered for the offences punishable under Sections 103(2), 189(2), 191(2), 191(3) and 61(2) read with 190 of BNS and Section 27 of Arms Act, 1959 . 2. Heard arguments of Sri Sai Bhargav and Sri Pavan Kumar Annabathuni, the learned counsels for petitioner and Sri R.Yella Reddy, the learned counsel for de facto complainant and Sri K.Sandeep, the learned Assistant Public Prosecutor for respondent-State. 3. Perused the record. 4. Prosecution case is that Sri Rasheed was murdered on 17.07.2024 at 8:00 P.M. on a road in Vinukonda Town. It is stated that there have been disputes between the deceased and Sri Shaik Jilani @ Jani/A.1. A.1 had an information that the deceased was available near Government Wine shop and with a view to kill him he contacted his aides/A.2, A.5, A.8, A.10 to A.15 and A.17 to 20 and a juvenile in conflict with law and on his instructions the rest of the accused reached the Government Wine shop. The deceased noticed them and started running away. A.1 and his associates ran after him. A.1 was able to reach the deceased and he caught hold of him. His associates surrounded the deceased preventing the general public from interfering. Then using a mutton cutting knife A.1 attacked the victim and by his first blow the left hand of the victim below the left elbow was severed. A.1 did not refrain himself and he further proceeded and had hacked on the head, neck, right hand of the victim and caused serious injuries. The deceased fell in a pool of blood. The associates of A.1 were wielding sticks. The incident occurred on the road and several people captured the incident using cameras available in their mobile phones and the said videos were circulated through social media. One of the police officers who happened to be on bandobust duty around the spot of offence was able to apprehend A.1 and recovered the crime knife from his possession. 5. The brother of the deceased, having got the information about the attack on his younger brother rushed to the spot and found the victim struggling for life. One of the police officers who happened to be on bandobust duty around the spot of offence was able to apprehend A.1 and recovered the crime knife from his possession. 5. The brother of the deceased, having got the information about the attack on his younger brother rushed to the spot and found the victim struggling for life. When they were shifting the injured to the hospital he died enroute. Then the elder brother of the deceased lodged written information at 1:00 A.M. on 18.07.2024. 6. A.1 in the said crime was remanded to judicial custody. He filed Crl.M.P.No.382 of 2024 before the learned XIII Additional District and Sessions Judge, Narasaraopet seeking regular bail. The other accused filed similar petitions. By a common order dated 29.08.2024 the learned Additional Sessions Judge dismissed the petition of A.1 as well as the petitions of other accused. 7. It is thereafter A.1 moved the present petition praying for regular bail. 8. This petition was filed on 24.09.2024, by which time the investigation was not concluded. However, by the time the matter came up for hearing, the learned Assistant Public Prosecutor submitted that investigation was completed and a charge sheet was laid. Thereafter, time was granted for both sides to consider the charge sheet and make submissions accordingly. 9. As a matter of fact, a copy of the charge sheet is filed before this Court by the prosecution arraigning A.1 to A.20. It listed 36 witnesses. The last paragraph of the charge sheet reads as below: “Thus it is evident that the accused A1 along with the other accused A2, A5, A.8 and A.10 to A15, A17 to A20 and CICL who are his associates grew grudge against the deceased due to previous grudges and conspired together, hatched plan and according to their plan A1 and other accused and CICL formed into unlawful assembly armed with deadly weapons, committed rioting and attacked the deceased with deadly weapons and A1 hacked with a mutton cutting knife and killed him instantaneously, and they are rendered themselves liable for punishment u/s. 103(2), 189(2), 191(2), 191(3), 61(2) read with 190 BNS and Sec 27 of Arms Act, 1959 , hence pray the Hon’ble Court to punish the accused A1, A2, A5, A8, A10, A11, A12, A13, A14, A15, A17, A18, A19 and A20 accordingly.” 10. Learned counsel for the petitioner made several submissions which shall be dealt with now. 11. The first submission of the learned counsel for petitioner is that in Crl.M.P.No.547 of 2024 by order dated 16.10.2024 learned XIII Additional District and Sessions Judge, Narasaraopet granted regular bail to A.12, A.17 and A.20. Further, in Crl.M.P.Nos.576 of 2024, 599 of 2024, 604 of 2024, 605 of 2024 and 613 of 2024 the learned XIII Additional District and Sessions Judge, Narasaraopet by a common order dated 25.10.2024 granted regular bail to A.2, A.8, A.5, A.11 and A.12. The submission on behalf of the petitioner/A.1 is that since co-accused were released on regular bail, on a parity the petitioner may also be released on bail. In this regard, Udari Laxman @ Lachaiah v. The State of Telangana ( Order dated 11.07.2023 of the Hon’ble Supreme Court of India in Criminal Appeal No.1849 of 2023 ). 12. As against that, the learned Assistant Public Prosecutor and the learned counsel representing the de facto complainant raised serious objections and submitted that the case of A.1 does not stand on the same footing as that of the other accused who were granted regular bail by the learned Additional Sessions Judge. At the bar, Deepak Yadav v. State of U.P. 2022 LawSuit(SC) 669 and Tarun Kumar v. Assistant Director, Directorate of Enforcement, 2023 SCC OnLine SC 1486 are cited. The ratio in these decisions is that the principle of parity is based on the guarantee of positive equality before law as enshrined in Article 14 of the Constitution of India. They laid down the scrupulous care that is to be maintained on facts in applying the doctrine of parity. 13. Having considered the rival submissions, it is to be seen that the material on record indicates that the offence committed was not out of sudden impulse and the allegations indicate premeditation on part of A.1 and the key role was allegedly played by A.1 as he was the one who gathered the rest of the accused and he led the group and he chased the victim. The allegations in the prosecution case show that the other accused were preventing the public from interfering with the act that was to be committed by A.1. The allegations in the prosecution case show that the other accused were preventing the public from interfering with the act that was to be committed by A.1. The entire allegations show that it is A.1 who was holding the dangerous weapon called mutton cutting knife and it is A.1 who caused fatal injuries resulting in the death of the victim. Though the other accused may have got the common object and common intention, their physical participation in attacking the body of the victim is absent and the physical act of attacking the body of victim is attributed only against A.1. Therefore, it cannot be said that the case of petitioner/A.1 stands on the same footing as that of his associates. 14. The earnest submission of the learned counsel for the petitioner is that the prosecution suppressed the genesis of the offence and therefore, petitioner shall be granted bail. In this regard, the learned counsel cited Nand Lal v. The State of Chhattisgarh, 2023 LiveLaw (SC) 186 and Parshuram v. State of M.P., 2023 INSC 973 and V.Subramanian v. State (Judgment of the High Court of Judicature at Madras in Criminal Appeal No.4 of 2019 dated 02.02.2022 ). The substance of the ratios in these decisions is to the effect that State owes a duty to bring all the facts on record and in a case where there are injuries on the accused it was the duty of the State to explain the nature of the injuries and the cause of their occurrence. Any failure on part of the State in offering explanation about such injuries on the accused would amount to failure of prosecution in disclosing the genesis of the crime. 15. Based on the above principles, the learned counsel for the petitioner submits that there is an injury on the left knee of the petitioner/A.1 and the prosecution failed to explain it. Learned Assistant Public Prosecutor would submit from the averments made in the charge sheet to the effect that after A.1 was arrested his blood stained clothes and the crime weapon were recovered from him and it was seen that A.1 had a blood injury on his left knee and when he was asked about it he told the police that while he was hacking the victim one of the blows slipped to touch the body of the victim and it caused injury in his left knee. Be that as it may. Explaining this particular injury petitioner has not raised any factual dispute stating as to how this injury occurred to him in a manner otherwise than what was mentioned in the charge sheet. The submission of the learned counsel then is about the earlier disputes and failure of the prosecution in making a true effort in finding out what had driven for the alleged offence. In the opinion of this Court such argument is farfetched. As per the record, on 17.07.2024 there was no incident between the accused party and the victim party. Therefore, whatever other earlier incidents were there between them they cannot be called as genesis of the crime. The need for finding out genesis of crime occurs only when certain things between two groups took place at once at the same time. The rest of the allegations fall within the theory of motive and such aspects do not fall for consideration while assessing the incidence of crime. Therefore, this argument of the petitioner does not stand to scrutiny. 16. Learned counsel for petitioner submit that with a view to deprive the petitioner from availing statutory bail/default bail, prosecution laid the charge sheet and such charge sheet cannot be considered to have a report on conclusion of investigation and the prayer of the petitioner could be considered for default bail as he has been languishing in jail for more than 90 days. In this regard, the learned counsel cited Ritu Chhabaria v. Union of India, 2023 LiveLaw (SC) 352 Enforcement Directorate, Government of India v. Kapil Wadhawan, 2023 LiveLaw (SC) 249 and Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337. 17. Considering the offences alleged against the petitioner, the maximum period of remand could be 90 days within which if investigation was not completed and charge sheet was not filed the person in custody shall be released on bail if he had applied for bail. It is undisputed that before the expiry of 90 days charge sheet in this case was filed. Therefore, the question is whether the police report that was filed could amount to conclusion of investigation so far as this petitioner is concerned or not. It is undisputed that before the expiry of 90 days charge sheet in this case was filed. Therefore, the question is whether the police report that was filed could amount to conclusion of investigation so far as this petitioner is concerned or not. If the charge sheet does not give rise to legal appreciation that it was not sufficient for prosecuting this petitioner, then it may be stated that it was filed only to prevent the petitioner from making a prayer for statutory or default bail. Therefore, the point for appreciation is as to what the charge sheet should contain in such cases. In the above referred Sharif Ahmed ’s case (supra 7), their Lordships had to state on this aspect at paragraph No.13 which reads as below: “13. The question of the required details being complete must be understood in a way which gives effort to the true intent of the chargesheet under Section 173(2) of the Code. The requirement of “further evidence” or a “supplementary chargesheet” as referred to under Section 173(8) of the Code, is to make additions to a complete chargesheet, and not to make up or reparate for a chargesheet which does not fulfill requirements of Section 173(2) of the Code. The chargesheet is complete when it refers to material and evidence sufficient to take cognizance and for the trial. The nature and standard of evidence to be elucidated in a chargesheet should prima facie show that an offence is established if the material and evidence is proven. The chargesheet is complete where a case is not exclusively dependent on further evidence. The trial can proceed on the basis of evidence and material placed on record with the chargesheet. This standard is not overly technical or fool-proof, but a pragmatic balance to protect the innocent from harassment due to delay as well as prolonged incarceration, and yet not curtail the right of the prosecution to forward further evidence in support of the charges.” 18. Therefore, this Court is now to look into the charge sheet to see whether it is complete in a sense that the Court below could take cognizance of an offence and could take up steps for conducting trial of the case or the charge sheet is incomplete and is exclusively dependent on further evidence which was not collected by the investigation agency. 19. 19. It is already seen what was mentioned in the last paragraph of the charge sheet. The Investigating Inspector had come to a conclusion that A.1 and other accused committed the offence and there is enough evidence to proceed for prosecuting the accused and he prays the Court to punish them. That must obviate further discussion on this aspect. However, what was mentioned earlier to that last paragraph in the charge sheet has given rise to the present debate. In the earlier paragraphs, it is mentioned that reports from Forensic Science Laboratories are awaited. A.13 has been absconding. It is then mentioned that as 90 days is about to be over charge sheet is filed against A.1, A.2, A.5, A.8, A.10 to A.15 and A.17 to A.20. It is then mentioned that the investigation against A.3, A.4, A.6 and A.7 will continue and a separate supplementary report will be submitted to the Court. What is mentioned in the charge sheet makes the following aspects clear. 20. That investigation is pending as against some of the accused. The principle of law is that each accused can be tried separately. Therefore, non-prosecution of other accused along with A.1 is of no legal consequence and non-completion of investigation as against other accused has no legal bearing as against the petitioner and others against whom the charge sheet was laid. As stated earlier, several witnesses were examined, inquest was held, autopsy report was obtained, crime scene was inspected, crime weapons were recovered and many accused were arrested and charge sheet was laid. A reading of that charge sheet enables any Court to see whether the allegations made therein allow it to take cognizance and take up further legal steps. Therefore, it cannot be said that the charge sheet was laid without investigation being completed as against A.1. In these circumstances, this contention of the petitioner does not stand to scrutiny. Learned Assistant Public Prosecutor submits that during investigation DNA was collected and it was found tallying with the accused and photographs and videos were collected. In fact, one such video was shown in the public Court which showed the alleged brutal act of A.1 against the victim. The learned Assistant Public Prosecutor further submits, referring to the charge sheet itself, about the bad antecedents of this petitioner as he was involved in other crimes. In fact, one such video was shown in the public Court which showed the alleged brutal act of A.1 against the victim. The learned Assistant Public Prosecutor further submits, referring to the charge sheet itself, about the bad antecedents of this petitioner as he was involved in other crimes. It is very seriously contended before this Court by the prosecution that if any release of the petitioner at this stage would make him a hero among his group of people and that there is imminent threat from this petitioner and his group to annihilate everyone belonging to the deceased and his group. Sensing serious struggle in the locality, the State has been organizing a police picket only to safeguard the witnesses. It is stated that the material collected amply demonstrates that A.1 was so merciless that despite fervent appeals from the deceased and while he was beseeching for his life, this accused attacked and mutilated the victim and killed him. While this Court appreciates the submissions made on both sides, it has to be recorded here that in a bail hearing there shall be no mini trial or serious observations leading to cause prejudice to the defence of accused or the version of the prosecution. Therefore, having recorded these submissions, this Court is not inclined to make any more observations on those aspects. For the reasons mentioned above, this Court finds that the gravity of the offence and the punishment that is provided by the penal provision and the manner in which it was committed and the material collected so far by the State against the accused and the serious apprehensions for the witnesses in the hands of the petitioner cumulatively persuade this Court to decline the prayer of the petitioner at this stage. 21. In the result, this Criminal Petition is dismissed.