IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7212 OF 2018 BETWEEN:
Syed Hussain Sharief @ Syed Siddique S/o Syed Shamshuddin Syed Altaf, aged about 20 years R/at Rent House of Byregowda Behind Idga Nelamangala-562 123.
(By Sri.K.Ram Singh & Associates, Advocate) AND:
1. State of Karnataka by Nelamangala Rural Police Station- 562 123. Bengaluru District Represented by Government Pleader High Court of Karnataka Bengaluru-560 001.
2. N.K.Nagaraj S/o Late Kenchaiah R/at No.194, Rayan Nagar Nelamangala-562 123.
(By Sri.K.P.Yoganna, HCGP for R1; Notice served on R2 through police) ...Petitioner ...Respondents This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.21/2018 (Spl.C.No.250/2018) of Nelamangala Rural Police Station, Bengaluru for the offences punishable under Sections 302, 201 read with 34 of IPC and Section 3 CI (2)(5) SC/ST Act 1989.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner under Section 439 of Cr.P.C. to release him on regular bail in SPL.C.C.No.250/2018(Crime No.21/2018) of Nelamangala Rural Police Station, for the offences punishable under Sections 302, 201 R/w Section 34 of IPC and Section 3 CI(S) (5) of SC/ST Act 1989.
2. I have heard the learned counsel appearing for the petitioner-accused and also learned HCGP appearing for respondent-State.
3. A missing complaint was lodged by the brother of the deceased on 24.01.2018. Subsequently, on 01.02.2018, accused Nos.2 and 3 were apprehended and during the course of investigation it revealed that on 23.01.2018 because the deceased was demanding money from them for having used the shed as tenants and the accused persons were juvenile offender took the deceased inside the shed and assaulted the deceased with iron bar and inflicted injury with knife on neck and head and separated the head and body of deceased and buried the head in the floor of the shed and later put the remaining body of deceased in a plastic bag and thereafter the body of the deceased has been transported in the car bearing Registration No.KA-03-ME-8876 and was thrown into Vrushabavathi Water Channel and now the charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner-accused that there are no eye witness to the alleged incident. Already accused No.2 father of the accused No.1 and the juvenile offender accused No.3 have been released on bail. On the ground of parity the accused-petitioner is also entitled to be released on bail. He further submitted that recovery which is said to have been made is a joint recovery and other circumstances on which prosecution is relying upon is only on extra judicial confession. He further submits that the entire evidence which is relied upon is the circumstantial evidence and in the absence of eye witness, that the accused person cannot be considered to be the offender of the said Act. Already investigation has been completed and accused-petitioner is entitled to be released on bail. In order to substantiate the said contentions, he relied upon the decision of this Court in AJJAPPA Vs STATE OF KARNATAKA reported in 2017(4) AKR 807 and also another decision in IRFAN @ IRFAN NAWAZ KHAN VS. STATE OF KARNATAKA reported in Criminal Petition No.8722/2015 dated 22.01.2016. He is ready to abide with terms and conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition.
5. Per contra, learned HCGP vehemently argued and submitted that the prosecution has produced the material to show that there was motive of the alleged offence and with that intention accused person took the deceased into the shed and there they assaulted with the iron bar and thereafter they have separated the head and buried the head in the floor of shed and they disposed of the remaining parts of the body in Vrushabhavathi Water Channel. He further submitted that there is extra judicial confession made by the accused and even the said head has been exhumed at the instance of the accused- petitioner. The ground of parity is not applicable to the case on hand. On these grounds he prayed to dismiss the petition.
6. Though notice is served to the complainant, but he has remained absent.
7. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
8. Admittedly, that there are no eye witness to the alleged incident and on the only circumstance on which the prosecution is relying upon is that on motive, recovery and extra judicial confession. But that is not the only consideration which the Court has to take into consideration while granting the bail. The gravity of the offence involved and the punishment which is likely to be imposed is also to be taken into consideration. On these grounds, he prays to dismiss the petition.
9. I have carefully and cautiously gone through the decision which have been quoted supra, in the said decision that case has been clearly discussed and decided on the facts of those case and as such the said facts are not applicable to the present case on hand. As could be seen from the records, accused persons have taken the deceased to the shed and they have assaulted with iron bar, thereafter, they have separated his head from the body and buried the same in the shed and thereafter they have disposed of the body in Vrushabhavathi Water Channel, that itself clearly goes to show that it is the brutal murder of the deceased. Under such circumstances, the said offence is punishable with death or imprisonment for life. Though the entire prosecution rests on circumstantial evidence but there are circumstances to bring down the guilty of the accused. Though during the course of arguments, the learned counsel for the petitioner-accused submitted that accused No.2 has been released on bail and on the ground of parity accused No.1 is also to be released on bail. But on careful perusal of the charge sheet material, it is only accused No.2 who has only paid the amount to the remaining accused persons to do the act and there were no overt act as alleged against the accused No.2. Under such circumstances, accused No.2 has been released on bail.
In the light of the above discussion the ground of parity is not applicable to accused No.1. There are no good ground made out to release the petitioner-accused No.1 on bail. Hence, petition stands dismissed.
Sd/- JUDGE ag