IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL R.B.
CRL. P. NO.6558/2017 BETWEEN HUSSAINABBA @ HUSSAIN @ SUHAIL @ USTHAD, S/O ABDULLA RAHIMAN, AGED ABOUT 35 YEARS, R/AT KEREBAIL HOUSE, SANGABETU VILLAGE, SIDDAKATTE POST, BANTWAL TALUK, D.K. DISTRICT – 574 211. ... PETITIONER (BY SRI. R.B. DESHPANDE, ADV.) AND THE STATE OF KARNATAKA BY, ULLAL POLICE STATION, MANGALURU CITY - 575 020, REPRESENTED BY, STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560001. ... RESPONDENT (BY SRI. K.NAGESHWARAPPA, ADV.) THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.63/2017 OF ULLAL POLICE STATION, MANGALORE CITY FOR THE OFFENCE P/U/S 120B, 143, 144, 147, 148, 341, 504, 506, 302, 307, 326 R/W 149 OF IPC AND SEC. 3, 25 (1)(1B) AND SEC. 25 (1) (1A), 27(3) OF ARMS ACT.
THIS CRL.P COMING ON FOR ‘ORDERS’, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER This is the petition by the petitioner-accused No.3 filed under Section 439 of the Criminal Procedure Code seeking to release him on bail for the alleged offences punishable under Section 120 (b), 143, 144, 147, 148, 341, 504, 506, 302, 307, 326 read with Section 149 of the Indian Penal Code and also under Sections 3, 25(1), (1b), 7, 25 (1) (1a) and 27(3) of the Indian Arms Act, 1959 registered by the respondent police in Crime No.63/2017.
2. Heard the arguments of the learned counsel appearing for the petitioner-accused No.3 and also the learned High Court Government Pleader for the respondent-State.
3. Learned counsel for the petitioner made a submission that looking to the complaint and FIR, the name of the present petitioner is not figured. It is also his submission that only the name of the accused No.1 has been mentioned in the complaint as well as in the FIR. Referring to the complaint averments and the further statement of the complainant, the learned counsel made a submission that though the complainant has stated that he knows the present petitioner and other assailants also but in spite of that their names have not been mentioned in the complaint. It is also his submission that on 15.02.2017 inquest was conducted. Even during the inquest mahazar proceedings, the name of the present petitioner was not mentioned as one of the assailants.
4. Learned counsel submitted that it is only after inquest mahazar proceedings are over, when the further statement alleged to have been recorded on 15.02.2017, the name of the present petitioner has been introduced for the first time making allegations that he was also present holding the talwar and assaulted deceased Kalia Rafiq and caused the injuries. Learned counsel further submitted that if really the complainant has seen the present petitioner also, nothing prevented him from mentioning his name in the original complaint. Hence, he submitted that there are no acceptable materials showing involvement of the present petitioner in the alleged incident. The court has already granted bail to accused No.5. Now the investigation is completed and charge sheet is also filed. By imposing reasonable conditions, the present petitioner may be enlarged on bail.
5. Per contra, the learned High Court Government Pleader made a submission that further statement was also recorded on the very same day in the evening and in the further statement, complainant has made it clear that in the light he has seen the assailants who have participated in the alleged incident and assaulted the deceased. He made a further submission that in the further statement the name of the present petitioner is also mentioned by the complainant. It is also his submission that the test identification parade was conducted in the presence of the Taluk Executive Magistrate and the complainant as well as the witnesses have identified the present petitioner as one of the assailants. Hence, he submitted that in view of these materials, prima-facie case is made out by the prosecution. Hence, imposing condition is not a ground for granting a bail.
6. In reply, the learned counsel for the petitioner-accused No.3 made a submission that test identification parade is conducted after filing of the charge sheet.
7. I have perused the grounds urged in the bail petition, FIR, Complaint and entire charge sheet material produced in the case by the counsel for the petitioner.
8. Looking to the complaint averments, one Mohammed Zahid is the complainant. No doubt, in the complaint while narrating the incident he has taken the name of accused No.1 in the complaint but he has also mentioned that there are other persons along with accused No.1. Their names were not mentioned specifically in the original complaint. In the further statement he has mentioned the name of the present petitioner as one of the assailants, he was holding the talwar, assaulted the deceased and caused the injuries.
9. On perusing the original complaint, it is mentioned that the complainant has seen the incident in the electric lights installed in the petrol bunk and he has seen the assailants in the said light. Therefore, so far as the identification is concerned, when it is stated in the original complaint that there was a sufficient light in which he has seen the assailants in the electric light, the question of conducting test identification parade does not arise at all, but, any how in this case the test identification parade is conducted as per the prosecution for which, the learned counsel for the petitioner made a submission that because of the delay in conducting the test identification parade, no importance can be attached to the test identification parade. At this stage even if the test identification parade is not taken into consideration while considering this bail petition, on the basis of the averments made in the original complaint when there is a specific averment that when there was a specific light in seeing the assailants, regarding the name he may not mentioned in the complaint when he filed the complaint immediately after the incident. But, on the very day he gave the further statement mentioning the names of the other accused persons who are assailants and overt act played by this accused. So far as the petitioner is concerned, he has clearly mentioned that he has also assaulted the deceased not only that in the further statement mentioned, it is stated that the present petitioner uttered the word towards the deceased that they have committed the murder of brother of a present petitioner, therefore, they will not leave them.
10. I have also perused the post mortem report.
The doctor who conducted the autopsy over the dead body of the deceased noticed totally 28 external injuries on the body of the deceased and he has given an information that the death is due to haemorrhage as a consequence of multiple chop wounds sustained by the deceased.
11. Looking to the opinion of the doctor, it is also consistent that the other material produced by the prosecution regarding the incident and the death of Kalia Rafiq. Therefore, only on the ground that at the first instance in the complaint the name of the present petitioner is not mentioned, the entire material collected by the prosecution cannot be ignored by this court.
12. Looking to the entire materials on record, I am of the opinion that the prosecution has placed the prima-facie material to show involvement of the petitioner in committing the alleged offence and therefore, it is not a case to exercise the discretion in favour of the petitioner.
Accordingly, the petition is hereby rejected.
Sd/- JUDGE Chs*