IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.7069/2018 c/w.
CRIMINAL PETITION NO.7058/2018 IN CRIMINAL PETITION NO.7069/2018: BETWEEN :
1. Krishna Poojary @ Kishan S/o Sudheer Poojary Aged about 21 years R/at D.No.7-22, Kandevu House, Kodekal, Behind Padil Railway Station Alape Village Mangaluru Taluk-575 007.
2. Srijith Prabhakar Kondavuru S/o Prabhakar Aged about 25 years R/at Srija Nilaya, Krishna Nagar, Ambar Village, Uppala Post, Via Manjeshwara, Kasargod District-671 322.
3. Dhanush Poojary @ Dhanush Kumar S/o Sudheer Poojary Aged about 22 years R/at D.No.7-22 Kandevu House, Kodekal, Behind Padil Railway Station Alape Village Mangaluru Taluk-575 007.
4. Abhi @ Abhishek R.S. S/o Ramesh Poojary Aged about 21 years R/at Badakodi House Kepu Village Bantwal Taluk-574 265 5. Sandesh Kotian S/o Raghava Aged about 22 years R/at Jogi Gudde House Near Mahalingeshwara Temple Kunjathoor, Maneshwara Temple Kasargod District-671 322.
6. Pushparaj S/o late Umesh Acharya Aged about 24 years R/at Near Scout Bhavan Journalist Colony, Vidyanagar Post Kasargod District-671 322.
7. Lathesh M. @ Chanchu S/o Gopala Aged about 24 years R/at Kordabbu Daivasthana Gandhinagar, Maogral Post Kumble Village Kasargod District-671 322 (By Sri Aruna Shyam M., Advocate) … Petitioners AND :
The State by Kavoor Police Represented by the learned State Public Prosecutor, High Court of Karnataka Bengaluru-560 001 … Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioners on bail in Crime No.2/2018 of Kavoor Police Station, Mangaluru for the offences punishable under Sections 143, 144, 147, 148, 120(b), 109, 144, 117 and 302 r/w. Section 149 of Indian Penal Code.
IN CRIMINAL PETITION NO.7058/2018: BETWEEN :
1. Mithun S/o Narayana Poojary Aged about 28 years R/at Devasya House Glthamajal Village Bantwal Taluk-574 211.
2. Thilak Raj Shetty S/o vishwanath Shetty Aged about 28 years R/at Durga Nivasa Kaprigudde, Akash Bhavana, Mangaluru-574 002.
3. Raju @ Rajesh S/o Shekara Poojary Aged about 21 years R/at Kumpana Majalu House Farangipete, Bantwal Taluk-574 211.
… Petitioners (By Sri S.Rajashekar, Advocate) AND :
The State by Kavoor Police North Sub-Division, Mangaluru City Represented by the learned State Public Prosecutor, High Court of Karnataka Bengaluru-560 001 (By Smt. Namitha Mahesh B.G., HCGP) … Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioners on bail in Crime No.2/2018 of Kavoor Police Station, Mangaluru for the offences punishable under Sections 143, 144, 147, 148, 120(b), 109, 144, 117 and 302 r/w. Section 149 of Indian Penal Code.
These Criminal Petitions coming on for orders this day, the Court made the following:-
O R D E R Criminal Petition No.7069/2018 is filed by accused Nos.1 to 7 and Criminal Petition No.7058/2018 is filed by accused Nos.8 to 10 under Section 439 of Cr.P.C. praying to release them on bail in Crime No.2/2018 of Kavoor Police Station for the offences punishable under Sections 143, 144, 147, 148, 120B, 109, 114, 117, 302 r/w.
Section 149 of IPC.
2. I have heard Sri Aruna Shyam, the learned counsel for accused Nos.1 to 7-petitioners in Criminal Petition No.7069/2018; Sri Rajashekar, learned counsel for accused Nos.8 to 10-petitioners in Criminal Petition No.7058/2018; and Smt. Namitha Mahesh B.G., learned HCGP for the respondent-State.
3. The brief facts of the case are that complainant’s brother deceased Abdul Basheer was in abroad and he came from abroad and was running a chicken fast food hotel. On 3.1.2018 when the complainant in his house at about 10.15 p.m., he received a phone call from his relative stating that when Abdul Basheer was about to close the hotel at about 10.00 p.m., 6 to 7 youths came on motorcycle by holding talwar and assaulted Abdul Basheer. When he tried to rescue himself, said persons assaulted him with talwar and caused grievous injuries.
Immediately thereafter he was taken to AJ Hospital for treatment and subsequently, he succumbed to the injuries. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel Sri Aruna Shyam that petitioners-accused Nos.1 to 7 are innocent and they have been falsely implicated in the crime because of communal violence. He further submitted that already accused No.11 has been released on bail by this Court and on the ground of parity, petitioners-accused Nos.1 to 7 are also entitled to be released on bail. He further submitted that the complaint was registered against unknown persons and no specific overt acts have been made in the complaint. Already investigation has been completed and charge sheet has been filed. He further submitted that there was no motive alleged in the complaint. Since one year two months accused are languishing behind the bars. He further submitted that Test Identification parade has been conducted only after accused are produced before the Court and panchanama is drawn, that too after long gap after the arrest of the accused persons. He further submitted that the petitioners-accused Nos.1 to 7 ready to abide by any conditions imposed by this Court and ready to offer sureties.
5. It is the submission of the learned counsel Sri Rajashekar appearing for petitioners-accused Nos.8 to 10 that as per the charge sheet material, on the date of the alleged incident, petitioners-accused Nos.8 to 10 were in judicial custody. The only allegations which have been made against them are that they have conspired with other accused persons and instigated them to commit the alleged crime. There is no material to connect them to the alleged crime. He further submitted that there are no specific overt acts as against the petitioners-accused Nos.8 to 10 and they were not present at the time of the alleged incident. They are ready to abide by any conditions imposed by this Court and ready to offer sureties.
6. On the aforesaid grounds, learned counsel appearing for the petitioners prayed to allow the petitions.
7. Per contra, the learned HCGP vehemently argued and submitted that the alleged incident has taken place due to communal violence. Petitioners have taken a revenge only because of murder of one Hindu person Deepak Rao and therefore they wanted to take away the life of another Muslim person and in that context they went near the shop of the deceased and assaulted him mercilessly. As many as 37 injuries were found on the body of the deceased and due to the said injuries he died. She further submitted that Cws.2 to 4 are the eye witnesses to the alleged incident who have categorically stated the overt acts of each of the accused especially accused Nos.1 to 7. She further submitted that Test Identification parade has also been conducted during the course of investigation and the said eye witnesses have identified accused Nos.1 to 7. She further submitted that the statement of CWs.7, 8 and 9 has been recorded under Section 161 of Cr.P.C., and the said witnesses who were in the jail have stated that they heard as to what was conspired in the jail and there is specific evidence to show that all the accused persons conspired and thereafter with an intention to eliminate any one of the Muslim, they have committed the alleged offence. She further submitted that the petitioners are involved in a serious offence which is punishable with death or imprisonment for life and if they are enlarged on bail they may likely to indulge in similar type of criminal activities and they may not be available for trial. On these grounds, she prayed to dismiss the petitions.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
9. On close reading of the contents of the complaint it would indicate that the alleged incident has taken place because of the murder of Hindu person Deepak Rao and the accused persons wanted to take revenge by committing the murder of one Muslim person. Already investigation has been completed and the charge sheet has been filed. On close reading of the entire charge sheet material there are eye witnesses to the alleged incident, who have been examined by the Investigating Authority as CWs.2 to 4. In their statement they have clearly stated the overt acts of each of the accused persons. As could be seen from the charge sheet material allegation as against accused No.11 is that he has shown the shop of the deceased and in so far as accused Nos.5 to 7 are concerned, they were also present at the place of incident near the road and watching the incident. At the time of the alleged incident they were instigating the accused persons to take revenge of the death of the deceased Deepak Rao. In so far as accused No.4 is concerned, he was standing near the motorbike and also instigated the accused persons by uttering the said words in tulu. In so far as accused Nos.1, 2 and 3 are concerned, there are specific overt acts that they have entered into the shop of the deceased, assaulted him with lethal weapons and caused grievous injuries. When the deceased tried to rescue himself and came out of the shop, again accused Nos.1, 2 and 3 assaulted him by chasing him. In that light, there are specific overt acts alleged as against accused Nos.1, 2, 3 to show that they have been involved in a serious offence which is punishable with death or imprisonment for life. Under such circumstances, following order is passed:-
Criminal Petition No.7069/2018 filed by petitioner Nos.1, 2 and 3-accused Nos.1, 2 and 3 is dismissed, whereas Criminal Petition No.7069/2018 filed by petitioner Nos.4 to 7-accused Nos.4 to 7 is allowed.
Accordingly, Criminal Petition No.7069/2018 is partly allowed.
Criminal Petition No.7058/2018 is allowed. Accused Nos.4 to 7-Petitioner Nos.4 to 7 in Criminal Petition No.7069/2018 and accused Nos.8 to 10- petitioners in Criminal Petition No.7058/2018 are enlarged on bail in Crime No.2/2018 of Kavoor Police Station for the offences punishable under Sections 143, 144 147, 148, 120B, 109, 114, 117, 302 r/w. Section 149 of IPC, subject to the following conditions:-
i) Accused Nos.4 to 7 and 8 to 10, namely Abhi @ Abhishek R.S., Sandesh Kotian, Pushparaj, Lathesh M. @ Chanchu, Mithun, Thilak Raj Shetty and Raju @ Rajesh shall execute personal bond for Rs.2,00,000/- (Rupees two Lakhs only) each with two sureties for the like sum to the satisfaction of the trial Court.
ii) They shall be regular in attending the trial.
iii) They shall not tamper with the prosecution evidence directly or indirectly.
iv) They shall not indulge in similar type of criminal activities during the pendency of trial.
v) They shall not leave the jurisdiction of the trial Court without prior permission.
Sd/- JUDGE *ck/-