IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6176/2018 BETWEEN:
Noor Ali, S/o.Late Abdulla, Aged about 37 years, R/at: Kairu Manzil, Kodyakooru, Uppala Post, Mangalpady Village, Kasaragod Tq & District, Kerala State-671 263. ... Petitioner (By Sri. Lethif.B, Adv.,) AND:
The State of Karnataka, By Ullal Police Station, D.K.Magaluru, Rep. by SPP, High Court Building, Bengaluru-560 001. ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Petition is filed u/s.439 of Cr.P.C praying to enlarge the petitioner on bail in Cr.No.63/2017 of Ullal Police Station, Bengaluru 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)(b), 7, 25(1) (1a) and Sec.27(3) of ARMS Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail in Crime No.63/2017 of Ullal Police Station for the offences punishable under Sections 120(B), 143, 144, 147, 148, 341, 504, 506, 302, 307 and 326 read with Section 149 of IPC and Sections 3, 25(1) 1(b), 7, 25(1), 1(a) and Section 27(3) of Arms Act.
2. I have heard the learned counsel for petitioner and learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that the deceased – Kaliya Rafeeq was residing as neighbor of the complainant and they were friends. On 14.02.2017 during night hours, the deceased met the complainant and said that he is going to Bengaluru and asked the complainant to accompany him. At about 11.15 p.m., the complainant went to the house of deceased – Kaliya Rafeez and a Maruthi Alto Car came there and in the said car Rafeeq, Shamshuddin and another person were there. Thereafter, they were proceeded towards Mangaluru. It is further stated that on the way, they changed the car and two other persons also joined them. At about 12.00 a.m., they reached Kotekaru and in front of Petrol Bunk one Tipper lorry came from the wrong side in a rash and negligent manner and obstructed to the car in which, the deceased was proceeding. In the meanwhile, a white colour Ritz Car followed the car in which Kaliya Rafeez was traveling and it was parked behind the car of the deceased. Two persons were got down from the lorry and five persons from the Ritz car and on seeing those persons, the deceased tried to run and escape towards Petrol Bunk and when he was running, the complainant also followed the deceased. The accused persons were chased the deceased up to Petrol Bunk and one person assaulted with Talwar on the head of the deceased and another person also assaulted him. At that time, the petitioner/accused has fired 3 to 4 rounds from the pistol and other accused persons also assaulted the deceased with knife and Talwar. It is further alleged that when the deceased fell down, the complainant came to rescue, he has also been assaulted by the accused persons and sustained grievous injuries. Thereafter, they went in a Ritz Car. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that as per the charge sheet material, it is accused Nos.1 and 2, have fired. But only one pistol has been recovered at the instance of accused No.1. It is further submitted that the Ballistic report has also not produced to notify that who has actually fired? in which the pistol the said bullet was fired to the deceased which was in the body of the deceased. Further it is submitted that the statement of the eye- witness clearly indicates the fact that it is accused No.2, who fired toward the deceased and the petitioner/accused No.1 has not fired. It is further submitted that as per the post mortem report the death is due to hemorrhage as a consequence of multiple shots sustained by him and the death is not caused due to the bullet injuries. It is further submitted that since two years, the petitioner/accused No.1 is languishing in jail. Already charge sheet has been filed and the petitioner/accused No.1 is not required for the purpose of further investigation or interrogation. It is further submitted that the petitioner/accused is ready to abide by the conditions imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition and to release the petitioner/accused No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner/accused No.1 conspired with other accused persons. Because of the previous animosity, he along with other accused persons came there and the other persons have also assaulted the deceased with lethal weapons. It is accused No.1, who has fired towards the deceased and a bullet injury was also found in the body of the deceased in the left side. It is further submitted that there are three eye-witnesses to the alleged incident and the pistol, lethal weapons and mobile phones seized from the possession of the petitioner/accused No.1. It is further submitted that the Doctor, who has also given the opinion that the injuries found over the body of the deceased were caused with the weapons like Talwar. The petitioner/accused No.1 is involved in a serious offence, which is punishable with death or imprisonment for life. If the petitioner/accused No.1 is enlarged on bail, he may abscond and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and have also perused the statement of eye-witnesses.
7. On going through the statement of the eye- witnesses, it indicates that though it is contended by the learned counsel for the petitioner that as per the statement of the eye-witnesses, it is accused No.2, who has fired towards the deceased and it is not the accused No.1. But on close reading of the order of the Court of the VI Additional District and Sessions Judge, D.K., Mangalulru, it indicates that accused No.1 – Noor Ali and accused No.2 – Jiya @ Isubu Shiyaad have also fired. Accused Nos.1 and 2 are standing on the same footing. On going through the charge sheet material, there are serious overt-acts as against the petitioner/accused No.1. Though it is contended that the Ballistic report has not been produced and only one pistol has been recovered, that is the matter which has to be considered and appreciated only at the time of trial. The presence of the petitioner/accused No.1 at the place of alleged incident is not in dispute. Under the said facts and circumstance, that too, because of the previous animosity with the deceased and accused No.1, the alleged incident has taken place and even motive is also there in this behalf. Under the said facts and circumstance, it is not a fit case to release the petitioner/accused No.1 on bail. Hence, petition stands dismissed.
In view of dismissal of the main petition, I.A. No.1/2018 does not survive for consideration.
VBS CT:RG Sd/- JUDGE