IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.680/2019 BETWEEN:
Mr. Hasein Pasha S/o Nisar Aged about 21 years R/at No.110, 18th Cross Lakshmipura, Halasuru Bengaluru City-560 009 …Petitioner (By Sri. H.S. Prashanth, Advocate) AND:
The State of Karnataka by HAL Police, Bengaluru City Represented by its State Public Prosecutor High Court Complex Bengaluru-560 001. …Respondent (By Sri. H.S. Chandramouli, SPP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.632/2017 of H.A.L. Police Station, Bengaluru City, for the offences punishable under Sections 302, 397 and 201 r/w. Section 34 of Indian Penal Code.
This Criminal Petition coming on for Orders this day, the Court made the following:-
O R D E R The present petition has been filed by the petitioner/ accused No.2 under Section 439 of Cr.P.C. to release him on bail in Crime No.632/2017 (S.C.No.653/2018) of H.A.L. Police Station, Bengaluru, for the offences offence punishable under Sections 302, 397, 201 r/w Section 34 of Indian Penal Code.
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The gist of the complaint is that on 28.11.2017 at about 8.00 p.m. they noticed that there was a leakage of the gas cylinder in the house and immediately the police inspector and other staff went and there they noticed two dead bodies have been burnt and they have murdered. During the course of investigation it came to light that accused Nos.1 and 2 trespassed into the house of the deceased who are grand parents of accused No.1 and committed there murder. In order to screen the offence again accused Nos.1 and 2 trespassed into the house, leaked the gas and thereafter ignited the gas, burnt the dead bodies. On the basis of the said complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that petitioner/accused No.2 has been arrested while he was working. There was no alleged eyewitness. The entire case rests on circumstantial evidence. He further submitted that the alleged incident has taken place on 26.11.2017 and it came to light only on 28.11.2017. He further submitted that there are no eyewitnesses to the alleged incident, the material which has been collected shows that the allegation is only against accused No.1. Accused No.2 is only friend of accused No.1, after discontinuing of his education, he continued his friendship and he was in touch with accused No.1 and as such he has been falsely implicated. He further submitted that after arrest he was taken to Magistrate and there he was made to run away and at that time they have shoot accused No.2. He further submitted that an amount of Rs.11,000/- which has been seized from the possession of the accused belongs to him as he is employee of KFC. He further submitted that the order passed by this Court in Criminal Petition No.3192/2018 is not having any binding effect and this Court can independently considered the bail application and release the petitioner/accused on bail. He further submitted that he is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned State Public Prosecutor vehemently argued and submitted that accused Nos.1 and 2 have committed the murder. In order to screen the offence and to eliminate the evidence they have burnt the dead body. He further submitted that as against accused No.2 one more case has been registered as he has tried to attack the police and at that time he has been shoot out and thereafter he has been apprehended. He further submitted that the petitioner/accused is a rowdy element and the amount has also been recovered from the accused. He further submitted that there are witnesses who have seen accused No.2 along with accused No.1 moving around the said place and thereafter they have also gone to the house to screen the offence. He further submitted that already in Criminal Petition No.3192/2018 this Court has taken a view that accused Nos.1 and 2 by assaulting the victims and later getting into the house burnt the dead bodies are as against accused Nos.1 and 2. Now this Court cannot give a different finding until the said order is recalled or challenged by the accused. On these grounds he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records.
7. I have carefully and cautiously gone through the order passed by this Court in Criminal Petition No.3192/2018. The only observation which has been made in the said order at paragraph No.3 is that the allegation of assaulting the victims and thereafter getting into the house and burning the dead bodies are against accused Nos.1 and 2. It is not a finding given on merits while considering the bail application of accused Nos.1 and 2. In that light, the said finding or the observation is not going to bind on accused No.2. But this Court can independently reconsider the material placed on record and come to a proper conclusion whether the petitioner/accused No.2 is entitled to be released on bail. There are no eyewitnesses to the alleged incident and the entire case rests on circumstantial evidence. When the entire case rests on circumstantial evidence, then the circumstances on which the prosecution is intending to rely upon is established or not has to be seen in this particular behalf.
8. As could be seen from the records accused No.1 is considered to be relative of the deceased, it is also not in dispute and even the movement of accused Nos.1 and 2 near the house is also stated by the witnesses and coupled with the recovery of Rs.11,000/- at the instance of accused No.2 is also substantiated by drawing a mahazar. When all these circumstances are binding out towards the guilt of the accused and the accused persons have also tried to screen the offence by burning the dead bodies by leaking the gas, it is considered to be a serious aspect. There is prima facie material against accused No.2 for having involved in a offence punishable with death or imprisonment.
9. Under the said facts and circumstances, I feel that it is not a fit case to release the petitioner/accused on bail. Hence, the petition stands dismissed.
*AP/-
Sd/- JUDGE