IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.8012/2019 BETWEEN:
NAYAZ AHMED @ NAYAZ S/O. LATE HUSSAIN AHMED 28 YEARS R/AT. 4085, 2ND CROSS GANA RESIDENCE APARTMENT K.S.LAYOUT, BANGALORE – 560078 ... PETITIONER (BY SRI VASIM PASHA, ADV., FOR SRI SIRAJUDDIN AHMED, ADV.,) AND:
STATE BY K.S.LAYOUT P.S., REPRESENTED BY HCGP HIGH COURT BUILDING BANGALORE CITY – 560001 …RESPONDENT (BY SRI ROHITH B.J., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.166/2019 OF KUMARASWAMY LAYOUT POLICE STATION, BENGALURU, FOR THE OFFENCE P/U/S.302 R/W SEC.34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER Heard and perused the records.
2. The petitioner is arraigned as accused No.3 in the charge sheet filed by respondent-police in Cr.No.166/2019, but later, the same was culminated in to S.C.No.1455/2019 on the file of LXV Additional City Civil and Sessions Judge, Bengaluru.
3. The brief facts of the case as could be seen from the charge sheet papers are that, on 07.06.2019 in the night hours at 09:00 p.m., in Iliyas nagar, near Noorani Masjid, accused Nos.1 to 3, witness No.2, deceased – Shekh Milan and also others were playing Battle Ludo game. In that context, there was some quarrel between accused No.1 and deceased Shekh Milan. Infact, accused No.1 went out from the said spot after quarreling with the deceased - Shekh Milan. But afterwards, he came back with knife and tried to assault Shekh Milan, but he escaped from the said blow. At that time, accused Nos.2 and 3 caught hold the deceased and in that context accused No.1 has assaulted on the head of the deceased with knife and caused severe injuries and later deceased succumbed to the said injuries. There were four eye witnesses as per the prosecution case i.e., one Mr.Irfan Khan, Sayed Sadat, Wasim Sharif and one Mr.Abdul Rayan. One of the eye witness – Mr.Sayed Sadat was not even spoken about of the any overt-acts of the petitioner as stated in the charge sheet that accused Nos.2 and 3 caught hold the deceased and thereafter, accused No.1 has assaulted the deceased. However, he has only stated that at about 10:00 p.m. on the date of the incident, accused No.1 suddenly assaulted the deceased and ran away and other two accused also ran away from the said spot. Wasim Sharif, infact was not an eye witness and he came to know about the incident from one Irfan Khan and Abdul Rayan and by the time, Wasim Sharif reached the hospital, the deceased already died. Abdul Rayan – who is an eye witness has stated about the overt-acts of the petitioner that he caught hold the deceased in order to enable accused No.1 to stab the deceased.
4. Therefore, whether accused Nos.2 and 3 were really caught hold the deceased and had the common intention of enabling accused No.1 to stab on the vital part of the deceased, which would be sufficient to cause death of the deceased, has to be thrashed out during the course of full fledged trial. Further, there are some discrepancies in the version of eye witnesses. Hence, at this stage, considering the nature of allegations and the overt-acts alleged against the petitioner, in my opinion, the petitioner is entitled to be enlarged on bail as he was already arrested in this case and after interrogation he was sent to judicial custody and charge sheet has already been filed. Hence, the following:
ORDER The Petition is allowed. Consequently, the petitioner-accused No.3 shall be released on bail in connection with Crime No.166/2019 of Kumaraswamy layout Police Station or C.C.No.20675/2019 (S.C.No.1455/2019) on the file of LXV Additional City Civil and Sessions Judge, Bengaluru city, registered against him for the offence punishable under Section 302 r/w 34 of IPC, subject to the following conditions:
(i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with Two sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against him is disposed of.
Sd/- JUDGE HJ