Karnataka High Court
Apsar Khan vs State Of Karnataka on 9 September, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.3945/2022
BETWEEN:
APSAR KHAN S/O. BASHEER KHAN,
AGED ABOUT 41 YEARS,
R/AT No.912, 31ST CROSS,
4TH T BLOCK, TILAK NAGAR,
BANGALORE - 560041
...PETITIONER
(SRI. NASIR ALI, ADVOCATE FOR PETITIONER)
AND:
STATE OF KARNATAKA,
BY SUDDAGUNTEPALYA POLICE STATION,
BANGALORE CITY
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560001)
...RESPONDENT
(SRI. SHANKAR H.S., HCGP FOR RESPONDENT)
THIS PETITION IS FILED UNDER SECTION 439 OF CR.P.C
SEEKING TO ENLARGE THE PETITIONER ON BAIL IN
S.C.NO.784/2021 (CR. No.69/2021) OF SUDDAGUNTEPALYA
P.S., BENGALURU CITY FOR OFFENCE PUNISHABLE UNDER
SECTIONS 143, 147, 148, 109, 115, 120B, 35, 37, 302 READ
WITH SECTION 149 OF IPC, SECTION 25(1)(1-B) AND 27(3) OF
INDIAN ARMS ACT AND SECTION 83(2) OF JUVENILE JUSTICE
2
(CARE AND PROTECTION OF CHILDREN) ACT, ON THE FILE OF
THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY.
THIS PETITION COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCE AT DHARWAD BENCH, HAVING BEEN
HEARD AND RESERVED FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C., by accused No.1 praying this Court to enlarge him on bail in Crime No.69/2022 of Suddaguntepalya Police Station, Bengaluru City for the offences punishable under Sections 143, 147, 148, 109, 115, 120B, 35, 37, 302 read with Section 149 of IPC, under Section 25(1)(1-B) and 27(3) of Indian Arms Act and under Section 83(2) of Juvenile Justice (Care and Protection of Children) Act, 2015, and the same is now committed to the Sessions Court which is numbered as S.C.No.784/2021 on the file of LII Additional City Civil and Sessions Judge, Bengaluru City. 3
2. The factual matrix of the case of the prosecution against this petitioner and other accused persons is that, the deceased Mohammed Shafi had married accused No.2 Smt. Taslim Banu about 11 years back and in the said wedlock, she gave birth to two children and recently their relationship was not cordial and very often she use to visit Bengaluru to her parents, but she has developed illicit relationship with the present petitioner and the present petitioner had caused threat to leave his wife. The deceased was murdered and hence, suspected the role of this petitioner and accused No.2 and her uncle Saleem and six other accused and hence, complaint was lodged and a case has been registered. In the FIR, this petitioner has been arrayed as accused No.1 and with whom allegedly having illicit relationship is arrayed as accused No.2 and this petitioner was arrested on 22.03.2021 and seized the mobile phone of this 4 petitioner during the course of interrogation and subsequently the police have also investigated the matter and also filed the charge-sheet.
3. The main contention of the petitioner counsel before this Court is that, the allegation against this petitioner is only he was an abettor and to substantiate this allegation except the confession statement of this petitioner recorded by the police is totally inadmissible and no other admissible material is collected by the Investigating Officer and no prima facie case against the petitioner. It is also contended that, this petitioner has already suffered detention of 13 months and still the trial has not been commenced. The only allegation against him is that, there is indirect role of abetment. It is also contended that, the accused No.2 is related to this petitioner through his Sister and they were known to each other. Added 5 to this, the petitioner and the deceased were friends doing Real Estate Business together and the petitioner use to visit Mysore in this regard and the allegation also that unknown six accused persons committed the murder. It is contended that, even the call detail records of his mobile, with the accused No.2 is normal because they were known to each other as friends and hence, CDR cannot be relied upon at this juncture. The motive for committing the murder is illicit relationship and the case of the prosecution is also that, the incident has been witnessed by C.W.2 and C.W.3 and their statement is very clear that, six unknown persons have assaulted and both of them have not stated the very presence of this petitioner. The counsel would submits that, he came to the spot only after the incident and no direct involvement and now the investigation has been completed and charge- sheet is also filed and on perusal of the entire charge- 6 sheet, it is only based on the suspicion he has been arrayed as an accused.
4. It is also contended that, the petitioner is suffering from serious ill-health due to Ischemic Heart disease, Diabetic Mellitus and Hypertension and he was taking treatment for Ischemic heart disease before his arrest and after the arrest his health is deteriorated and on the health ground also, he is entitle for bail. It is also his case that, he is a businessman and he is having two minor children and he has to take care of the business as well the children.
5. The counsel also would vehemently contend that, in 164 Statement of the alleged eyewitness is very clear that no specific role is attributed against this petitioner and the petitioner 7 was not there at the spot and only an allegation of abetment.
6. It is the case of the prosecution that, he was in touch with accused No.3 in order to eliminate the deceased and the phones which have been seized are not belongs to this petitioner. The prosecution also mainly relies upon the CCTV footage and the same is also produced before the Court and the same does not disclose the very presence of this petitioner and he is in the custody since from last 18 months and no specific overt act, even in terms of column No.17 of the charge-sheet. The very prima-facie participation of this petitioner is ruled out and hence, he is entitle for bail and he is ready to obey the conditions that may be imposed by this Court.
7. Per contra, the learned counsel appearing for the State would submits that, the trial Court while 8 considering the bail application, in the order it is observed that, in the earlier criminal petition i.e. in Criminal Misc. No.10080/2021, prayer was made to enlarge him on bail on the ground that his wife is admitted in the hospital and she needs immediate operation and he is the only person to take care of his wife and the said petition was dismissed vide order dated 28.01.2022. It is also contended that, now he has come up with another ground that he is suffering from Ischemic Heart Disease and the counsel also made the submission before this Court to get the medical records subjecting him for medical examination and now the report is also clear that, he only complains and no any suggestion to undergo for any surgery or any date is fixed and his condition is normal as per the report and hence, it is clear that, this petitioner is making all efforts to come out from the clutches of law. The report is very clear that, he is 9 not required any further treatment. The counsel brought to the notice of this Court the 164 statement of one Sayyad Tabrez, wherein, he has categorically stated that, as on the date of the incident he was there near the shop of this petitioner and both the victim as well as this accused both were talking together and when he went to attend the nature call, he heard the Galata sound and he was noticed the victim was lying at the spot who was talking to this petitioner and the victim was making sign and calling for his help and people also gathered together and when the people went to help him, this petitioner obstructed and then made Galata and he was lying at the spot for a period of 15 minutes. Thereafter only, he called a three wheeler Ape vehicle and instructed the driver to take him to Sanjay Gandhi Hospital and when he insisted to take him to Apollo Hospital, which is nearby, but he instructed to take him to only Sanjay 10 Gandhi Hospital and thereafter he was shifted to Victoria Hospital, but while taking him he lost his breath and his statement is very clear that, this petitioner was very much present and he only obstructed not to provide any immediate treatment to him. The counsel also would submits that, three phones were seized at the instance of this petitioner and he brought to the notice of this Court the P.F., under which three mobile phones were seized at the instance of this petitioner and P.F. is dated 23.03.2021 and the counsel referring these three seizure of phone calls would vehemently contend that, two phones are belongs to C.W.22, C.W.23 and C.W.22 is the worker of this petitioner and C.W.23 is the Sister's son of this petitioner and call record details i.e. CDRs are very clear that, thousands of phone calls are made between this petitioner and accused No.2 which establishes the illicit relationship 11 between them. It is also his contention that, on the date of the incident also numbers of telephone calls are made to accused No.3 with whom he entered conspiracy to eliminate the deceased and in turn the accused No.3 engaged the services of other accused and he was very much present at the spot at the distance and phone call details and also the locations are very clear regarding involvement of this petitioner. The CCTV footage is sent to the FSL and yet to get the report and the device which is placed before the Court is not a true and the same cannot be relied at this juncture. The counsel also would submits that, C.W.12 is the owner of Jewelery shop, wherein he has purchased the gold and handed over the same to accused No.2 and the same is recovered from accused No.2 and the same also establishes the alleged illicit relationship between this petitioner and the accused No.2. The motive for committing the murder is also 12 the deceased is the husband of the accused No.2 and all these material substantiate the case of the prosecution and this petitioner is the master minded and architect of the crime and the CCTV footage was also recovered by drawing the mahazar and the report is not yet received and hence, this petitioner is not entitle for bail.
8. Having heard the respective counsel and also on perusal of the material available before the Court, the very case of the prosecution is that, this petitioner is having illicit relationship with accused No.2 and hence accused No.2 and this petitioner conspired each other to commit the murder of the deceased and availed the services of the other accused persons. In order to substantiate the allegation of illicit relationship, the prosecution also collected the CDR report for using of mobile and the 13 mobile which was seized under the P.F. which are standing in the name of C.W.22, C.W.23 and C.W.24, verified and found there were total 5081 calls between the accused Nos.1 and 2 including incoming and outgoing calls of 2065 and 1537 and apart from that, 347 SMS incoming and outgoing SMS of 1032. The prosecution also mainly relies upon the records seized from the lodge in which allegedly accused Nos.1 and 2 stayed in the Hotel and phone tower location matches that, both of them stayed in the Lodge. It is the case of the prosecution that, this petitioner has given mobile to accused No.2 and the same was recollected on 03.03.2021 given the another SIM and in the said phone calls also there were 181 phone calls, both incoming and outgoing and also SMS. It is also the case of the prosecution that, on the date of committing the murder also there were 10 phone calls between this petitioner and the accused No.2 for 14 having given information about the committing the murder of the deceased to accused No.2 and there were 88 phone calls between accused No.2 and this petitioner by using another mobile. The prosecution also collected the phone calls details between this petitioner and accused No.3 with whom he gave supari to commit the murder that starts from 15.01.2021 and there were 201 phone calls between his petitioner and accused No.3 and also collected the material on the date of committing the murder. On that day also 25 phone calls were exchanged between this petitioner and accused No.3 from the morning till the evening and also he was in touch with the other accused and tower location discloses that, this petitioner was in touch with accused No.3 and another accused Ibrahim alias Ibbu. It is also the case of the prosecution that, on the date of the incident also, there were two calls between the deceased and this 15 petitioner and it is also the case of the prosecution that, this petitioner only secured the deceased to his shop and on that day, when the deceased came near his shop, he told him that he is outside and he will come and made him to wait and given instructions to the other assailants that he is near the shop and in front of his shop only, murder was committed. The very contention of the petitioner counsel that, only an allegation of abetment is made against him and the said contention cannot be accepted for the reasons CDR details is very clear that, this petitioner has been in constant touch with particularly accused No.3 with whom he gave supari to commit the murder and also the accused No.2 is none other than the wife of the deceased and I have already pointed out that thousands of phone calls between accused Nos.1 and 2 and it is also the case of the prosecution that, this petitioner and the deceased were doing Real Estate 16 business but not with the accused No.2 and having taken note of statement of C.W.22 and C.W.23, and this petitioner using the mobiles of C.W.22 and C.W.23, who are none other than the worker of this petitioner and also the sister's son and call records details manifests prima facie that, this petitioner was having illicit relationship with accused No.2 making thousands of calls prima facie and also on the date of the incident when committing the murder, he was also on the spot and also the statement of one of the witness who made the statement before the Court that, this petitioner prevented him not to give any help to him for a period of 15 minutes and thereafter only he gave the instructions to him to take him to hospital, that too not to nearby hospital, but he suggested to take him to Sanjay Gandhi Hospital and the very contention of the petitioner counsel that, he was not present at the spot and the tower location 17 discloses the same several phone calls are made to accused No.2 i.e. 25 phone calls to accused No.3 to eliminate the deceased and also phone details discloses that on that date, he was in touch with the deceased and made him to wait near his shop and murder was committed in front of his shop and when such prima facie material is available before the Court, the very contention of the petitioner counsel that only there was an abetment and he has not played any role, cannot be accepted. The petitioner counsel also contend that, those phone calls are not belongs to him, but the fact that all the three phones are seized at the instance of these petitioners is evident from the records which have been placed as per the P.F. dated 23.03.2021. The other contention is that, he is in custody since 18 months and the same cannot be a ground to enlarge him on bail, when he has involved in serious offence of committing murder and the 18 commission of offence is also bloodthirsty inflicting several injuries and cause of death is also on account of multiple injuries he had sustained. The counsel also would vehemently contend that, accused Nos.4, 5 and 11 are already granted bail and the allegations against the accused Nos.4, 5 and 11 are different from this petitioner and this petitioner is a master minded and there was a motive to eliminate the deceased since he was allegedly having illicit relationship with accused No.2. The victim is also none other than the husband of accused No.2. The counsel would vehemently contend that, C.W.2 and C.W.3 statements are contrary to each other in 161 statement and 164 statement and both of them have not pointed out the very presence of this petitioner and only he came to the spot after the incident, but tower location says that he was very much present at the place of incident and statement made under Section 164 by the person 19 who took the injured to the hospital is very much clear that, he only prevented him not to take him to hospital immediately and obstructed the people who gathered near not to extend any help and when such being the case, it cannot be accepted that, only allegation against him is that an abetment. The counsel contend that, no call details between accused No.1 and accused No3 and the same also cannot be accepted as there were 25 phone calls on the date of incident between this petitioner and the accused No.3. The counsel would also submits that, the accused No.3 is only a abettor and he engaged the services of accused No.4 and in turn accused No.4 engaged the services of accused Nos.6 to accused No.10. It is also important to note that recovery is made at the instance of the accused No.2, the gold ornaments which were purchased by this petitioner from C.W.12 and handed over the same to the accused No.2 and 20 this fact also clearly establishes the relationship between accused No.1 and accused No.2 and hence, the very contention of the petitioner counsel that he may be enlarged on bail cannot be accepted and I do not find any ground to enlarge the petitioner on bail and there are sufficient prima facie material against the petitioner, both in respect of illicit relationship between the petitioner as well accused No.2, there were 5000 phone calls between them, both inclusive of messages, incoming calls and outgoing calls and also on the date of the incident there were phone calls between this petitioner and the accused No.2 having communicated about eliminating the deceased and there were phone calls between this petitioner and accused No.3 and CDR reports also are very clear regarding the involvement of this petitioner and very much he was present near the place of incident and when there are sufficient material against the 21 petitioner to establish that there are prima facie case, I do not find any ground to enlarge the petitioner on bail, since he is the master minded and having motive to eliminate the deceased.
9. In view of the discussions made above, I pass the following:
ORDER The bail petition is rejected.
Sd/-
JUDGE Svh/-