IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.4910/2017 BETWEEN:
Mohammed Usmal Ulla Shariff S/o Abdul Razak C Aged about 49 years R/o Darul Uloom Mahamoodia Madrasa, Chinnasandra Village Chintamani Taluk Chikkaballapur District-563 125. .. PETITIONER (By Sri S Balakrishnan, Adv.) AND:
State of Karnataka By Chintamani Rural Police Station Represented by the State Public Prosecutor High Court of Karnataka Bengaluru-560 001. .. RESPONDENT (By Sri Chetan Desai, HCGP) This criminal petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.382/2016 of Chintamani Rural P.S., Chickballapura and S.C.No.19/2017 pending on the file of the II Additional District Civil Judge and Sessions Judge, Chintamani for the offences punishable under Sections 302 and 201 read with Section 34 of IPC.
This 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 of the offences punishable under Sections 302 and 201 read with Section 34 of IPC registered in respondent Police Station Crime No.382/2016.
2. Brief facts of the case of prosecution are that on 22.08.2016 at about 09.30 am, the complainant appeared before the respondent police station with a complaint, wherein he had stated that he was running a hotel by name ‘Noor’ at Chinnasandra. He was constructing a hotel in the land adjoining the main road, which belonged to him. The said construction was underway and he had dug up a sump tank to store water and that, he had covered the sump tank with a zinc sheet. At about 8.00 a.m. on the same day (i.e., 22.08.2016), while he was in his hotel, some residents of his village came to him and told him that a boy had fallen in the sump tank of his under construction hotel and had died. Then the complainant along with few others went to the spot and found the information to be true. The boy was aged around 8 years and on enquiry, he found out that the boy was named Abdul Nawaz, son of Noushad and resident of Kolar and that he was a student of the Madrasa. The complainant ascertained that a week prior to that day, a resident of Assam by name Hajibur Rahman Lashkar, son of Anwar Uddin Lashkar, had come to the Madrasa and disclosed that he had nobody to call his own and hence, he would work and reside at the Madrasa for his daily food. Then the complainant also ascertained that, Hajibur Rahman Lashkar and deceased Abdul Nawaz had quarreled with each other over food and other issues and that once or twice the said Hajibur Rahman Lashkar assaulted the deceased Abdul Nawaz. When such being the situation, on 21.08.2016 around 6.00 am, the deceased Abdul Nawaz was present till the morning prayers and thereafter, had gone missing. The said Hajibur Rahman Lashkar had taken the boy Abdul Nawaz near the undergoing construction belonging to the complainant and had killed the deceased by slitting the throat with a blade or any other sharp weapon and had dumped the body into the sump tank to conceal the crime. This incident might have taken place from 6.00 am of 21.08.2016 to 8.00 am of 22.08.2016. On the basis of the said complaint, the case was registered by the respondent police firstly against Hajibur Rahman Lashkar and others. During the course of investigation, the petitioner has been arrayed and he has been placed as accused No.1.
3. I have heard the learned Counsel appearing for the petitioner-accused No.1 and the learned High Court Government Pleader appearing for the respondent-State.
4. I have perused the averments made in the bail petition, FIR, complaint and the other materials on record.
5. Learned Counsel for the petitioner made submission that looking to the entire charge sheet material, there is no prima facie case as against the petitioner. The complaint itself is filed on suspicion. He has also submitted that as per the complaint averments, it is against one Hajibur Rahman Lashkar. But looking to the developments, the present petitioner has been falsely implicated placing him as accused No.1. The learned Counsel submitted that even the FSL report is not supporting the case of prosecution. The Investigation of the case is completed and the charge sheet has been filed. Hence, the learned Counsel submitted that by imposing reasonable conditions, the petitioner may be enlarged on bail.
6. Per contra, learned HCGP submitted that as per the submission of C.Ws.2 and 3 regarding the last seen theory of prosecution, they have stated that the deceased boy, the present petitioner and another person were seen at the spot i.e., they all went into the under construction building and thereafterwards, only the petitioner and another person came out and the deceased boy did not come out. The learned HCGP also submitted that the voluntary statement of the petitioner was recorded and at his instance, knife and jubba were recovered by the police. Referring to the FSL report, he made submission that regarding blood is concerned, it is human blood and even blood grouping is mentioned by the FSL authorities that it is ‘O’ blood group. There is prima facie material placed by the prosecution. Hence, the petitioner is not entitled to be granted with bail.
7. Looking to the complaint averments, it is lodged on suspicion. As per the complaint averments, the allegation is against one Hajibur Rahman Lashkar, but subsequently, the present petitioner has been arrayed as the accused No.1. In the complaint, there is no averment as to the involvement of the petitioner is concerned. It is no doubt true that as submitted by the learned HCGP as per the statement of C.Ws.2 and 3, they have stated that the deceased was in the company of the present petitioner and the (Hajibur Rahman Lashkar) AAR. I have perused the FSL report. Though it is the case of prosecution that at the instance of the petitioner, knife and jubba were recovered, so far as the knife is concerned, there were no blood stains. So far as the Jubba is concerned, looking to the blood group at item No.7 and other items, it is mentioned by the FSL authorities that it is the human blood and it is of ‘O’ grouping. There are no eye witnesses to the incident and the case of the prosecution rests on the circumstantial evidence.
8. The petitioner has contended that he is innocent and he has been falsely implicated in the case. He has undertaken that he is ready to abide by any condition that may be imposed by this Court. Investigation of the case is completed and the charge sheet has been filed. Therefore, looking to the materials on record, I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner.
9. Accordingly, petition is allowed. Petitioner- accused No.1 is ordered to be released on bail for the offences punishable under Sections 302, 201 read with Section 34 of IPC registered in respondent – police station Crime No.382/2016, subject to the following conditions:
i. Petitioner shall execute a personal bond for the 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.
Cs/-
Sd/- JUDGE