IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.7333/2017 BETWEEN:
Afzal Khan @ Afzal S/o Yasin Khan Aged about 45 years R/at old No.467 New No.476, Hari Colony, Kanakapura Road, Banashankari Bengaluru-560 070. ... PETITIONER (By Sri Ram Singh K, Adv.) AND:
State of Karnataka by Kumaraswamy Layout Police Station Bengaluru-560 078.
Represented by Government Pleader High Court of Karnataka Bengaluru-560 001. ...RESPONDENT (By Sri K Nageshwarappa, HCGP) This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.269/2016 (S.C.No.217/2017) of Kumaraswamy Layout P.S., Bangalore, for the offences P/U/Ss 143, 144, 145, 147, 148, 302 read with Section 149 of IPC.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER This petition is filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 143, 144, 145, 147, 148, 307, 302 r/w Section 149 of IPC registered in respondent – police station Crime No.269/2016.
2. The case of the prosecution as per the complaint averments is, the brother of the deceased is the complainant. It is stated that younger brother of the complainant along with his wife and children are residing at Someshwarnagara and doing repair work of almirah. The younger brother of the complainant and his friend by name Aslam Pasha were having ill-will and enmity with one Afzal khan and his associates of Hari colony. The complainant warned him not to have any quarrel. The complainant went to his relatives house at Someshwaranagara in order to attend function. When the complainant enquired about his younger brother, it was revealed that he along with his friend Aslam pasha went to Hari colony. At about 5.30 p.m. the relative of the complainant informed that at about 4.00 p.m. the younger brother of the complainant had been murdered in the quarrel between Aslam and others with Afzal khan and others with long, machu and he has been taken to Victoria hospital. The complainant along with his brother’s wife and relatives came to Victoria hospital emergency ward and found his brother dead and there were injuries on all parts of the body and also there were injuries all over the body to his brother’s friend by name Aslam and it was revealed through the said Aslam that there was quarrel between the younger brother of the complainant and Aslam with resident of Hari colony by name Afzal khan, Rohan, Shabaz, Salman Khan, Mohammed Faraz, Ansar Pasha, Syed Azam and others and due to the said ill will with an intention to take away the life of complainant’s brother and his friend, they assaulted them with long and machu. On the basis of the said complaint case was registered for the above said offences.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioner during the course of his arguments submitted that there is case and counter case. The complaint lodged by the petitioner is first in time, which is registered in Crime No.268/2016. It is also submitted that in the said incident, the petitioner also sustained injuries and for a period of 26 days he was in the hospital taking treatment.
5. Learned counsel for the petitioner, drawing the attention of the Court to the complaint averments, so also, the statement of witnesses, copies of which are produced, has submitted that similar set of allegations are made against other accused persons that all of them have assaulted the deceased and another person with deadly weapons and thereby, committed the murder of the deceased. The allegation against accused Nos.8 and 9 is that they made the deceased to fall on the ground and thereafter, he was assaulted with deadly weapons and accused No.11 thrown stone on the deceased. There were multiple injuries on the deceased and except the petitioner all other accused persons have been granted bail. He has also produced the copy of the bail orders granted in respect of accused Nos.4, 5 and 6. He has submitted that the deceased and his friend have first attacked the petitioner and his supporters and made an attempt to commit his murder. Accordingly, he has sought for allowing the petition.
6. Per contra, learned High Court Government Pleader during the course of his arguments submitted that there are eyewitnesses to the incident who have stated about the involvement of the petitioner along with other accused persons in committing the alleged offence of murder. Since there is a prima facie material as against the petitioner, he is not entitled to be granted with bail.
7. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record, so also, the order passed by this Court in respect of accused Nos.4, 5 and 6 and also the order of the learned Sessions Court granting bail to accused Nos.8 to 13.
8. Looking to the materials on record they prima facie show that the first FIR is registered in Crime No.268/2016 by the petitioner herein for the offence under Section 307 along with other offences. Subsequently, the present complaint came to be registered in Crime No.269/2016. As submitted by the learned counsel for the petitioner, perusing the complaint averments and the statement of witnesses, the allegation is not only against the present petitioner, but also against other accused persons, who were along with the petitioner. They all have assaulted the deceased by using deadly weapons. Medical records also show that the deceased died because of the multiple injuries. The materials in Crime No.268/2016 shows that matter was investigated by the police and charge sheet is also filed arrayed the deceased as accused No.1 and his friend Aslam Pasha is arrayed as accused No.2. The materials also show that the petitioner also sustained injuries in the said incident and was admitted to the hospital nearly for a period of one month. Therefore, it is a case and counter case. The Court has to ascertain who is the aggressor, which will be done during the course of trial, after recording evidence.
9. Considering all the materials placed on record, so also, the bail order of this Court and also of the learned Sessions Court, I am of the opinion that it is a fit case to exercise the discretion in favour of the petitioner.
10. Accordingly, petition is allowed.
Petitioner/accused No.1 is ordered to be released on bail for the offences punishable under Sections 143, 144, 145, 147, 148, 307, 302 r/w Section 149 of IPC registered in respondent – police station Crime No.269/2016, subject to the following conditions:
i. Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- and furnish one solvent surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner shall appear before the concerned Court regularly.
Sd/- JUDGE bkp