Karnataka High Court
Anees Ahmed vs The State Of Karnataka on 30 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.201211/2022
c/w
CRIMINAL PETITION NO.201126/2022
CRIMINAL PETITION NO.201123/2022
IN CRL.P.NO.201211/2022:
BETWEEN
VIKARAM S/O RAJU RATHOD
AGE 19 YEARS, OCC: STUDENT,
R/O BHUTANAL L.T.NO.1
TQ AND DIST. VIJAYPUAR 586101
...PETITIONER
(BY SRI. SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH 585107
THROUGH VIJAYAPUR GANDHI CHOWK PS
DIST. VIJAYAPURA 586101
2. ATIKA UMES W/O LATE MUSTAKEEM KUDAGI AMENDED AS PER
ORDER DATED
3. SHOHEBMOHAMMED KUDAGI 28.09.2022.
...RESPONDENTS
(BY SRI.GURURAJ V. HASILKAR, HCGP FOR R1;
SRI.S.R.KADLOOR, ADVOCATE FOR R2 AND R3)
THIS CRL.P. FILED U/S. 439 OF CR.P.C PRAYING TO,
RELEASE THE PETITIONER ON BAIL IN CRIME NO.27/2022 OF
2
GANDHI CHOWK POLICE STATION, DISTRICT VIJAYAPURA, FOR
THE OFFENCES PUNISHABLE U/SEC. 143, 147, 148, 109, 120(B),
302 R/W SEC. 149 OF IPC PENDING BEFORE THE I ADDL. CIVIL
JUDGE (JR.DN) AND JMFC AT VIJAYAPUR, DIST. VIJAYAPUR.
IN CRL.P.NO.201126/2022:
BETWEEN
ISHAQ AHMED S/O BABUSAHEB SHAIK
AGED ABOUT 46 YEARS,
OCC. PE TEACHER IN VIKAS
KANNADA HIGH SCHOOL,
SINDAGI NAKA, VIJAYAPURA
R/O ASAR GALLI,
VIJAYAPURA 586101
...PETITIONER
(BY SRI. AMEETKUMAR DESHPANDE, SENIOR COUNSEL
FOR SRI.SHRIHARSHA R. HARWAL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH GANDHI CHOWK POLICE STATION,
DISTRICT VIJAYAPURA
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
2. ATHIKA UMES W/O LATE MASTAKEEM
AGE: 21 YEARS, OCC: HOME MAKER AMENDED AS PER
R/O RAJAI NAGAR, VIJAYAPURA ORDER DATED
14.09.2022.
3. SHOHEBMOHAMMED KUDAGI
S/O RIYAZAHMED KUDAGI
AGE: 31 YEARS,
OCC: POLICE CONSTABLE
R/O DARBAR GALLI, VIJAYAPURA
...RESPONDENTS
(BY SRI.GURURAJ V. HASILKAR, HCGP FOR R1;
SRI.S.R.KADLOOR, ADVOCATE FOR R2 AND R3)
3
THIS CRL.P. FILED U/S. 439 OF CR.P.C PRAYING TO,
RELEASE THE PETITIONER ON BAIL IN CRIME NO. 27/2022
GANDHI CHOWK POLICE STATION, VIJAYAPURA, FOR THE
OFFENCES PUNISHABLE U/SEC. 143, 147, 148, 109, 120(B), 302
R/W SEC. 149 OF IPC PENDING BEFORE THE I ADDL. CIVIL JUDGE
AND JMFC-I COURT VIJAYAPURA.
IN CRL.P.NO.201123/2022:
BETWEEN
ANEES AHMED
S/O BABUSAHEB SHAIKH
AGED ABOUT 54 YEARS,
OCC. PROFESSOR IN SOCIOLOGY
ANJUMAN DEGREE COLLEGE VIJAYAPURA
R/O KIRTI NAGAR VIJAYAPURA
...PETITIONER
(BY SRI. AMEETKUMAR DESHPANDE, SENIOR COUNSEL
FOR SRI.SHRIHARSHA R HARWAL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH GANDHI CHOWK POLICE STATION,
DISTRICT VIJAYAPURA
REPRESENTED BY HCGP,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
2. ATHIKA W/O LATE MASTAKEEM KUDGI AMENDED AS PER
AGE: 21 YEARS, OCC: HOME MAKER ORDER DATED
R/O RAJAI NAGAR, VIJAYAPURA 14.09.2022.
3. SHOHEBMOHAMMED KUDAGI ...RESPONDENTS
(BY SRI.GURURAJ V. HASILKAR, HCGP FOR R1;
SRI.S.R.KADLOOR, ADVOCATE FOR R2 AND R3)
THIS CRL.P. FILED U/S. 439 OF CR.P.C PRAYING TO,
RELEASE THE PETITIONER ON BAIL IN CRIME NO.27/2022 GANDHI
CHOWK POLICE STATION, VIJAYAPURA, FOR THE OFFENCES
PUNISHABLE U/SEC. 143, 147, 148, 109, 120(B), 302 R/W SEC.
149 OF IPC PENDING BEFORE THE I ADDL. CIVIL JUDGE AND
JMFC-I COURT VIJAYAPURA.
4
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in Crl.P.No.201211/2022 is accused No.12; the petitioner in Crl.P.No.201126/2022 is accused No.5; the petitioner in Crl.P.No.201123/2022 is accused No.3 have filed petitions under Section 439 of the Code of Criminal Procedure, 1973, (for short hereinafter referred to as 'Cr.P.C.') seeking to enlarge them on regular bail, in Crime No.27/2022 of Gandhi Chowk Police Station, Vijayapur for the offences punishable under Sections 143, 147, 148, 109, 120-B, 302 read with Section 149 of Indian Penal Code, 1860 (for short hereinafter referred to as 'IPC') pending on the file of IV Addl. District & Sessions Judge, Vijayapura.
2. An FIR came to be lodged by the brother of deceased-Mustakeem. It is alleged in the first information report that said Mustakeem was in love with one Atika, who is a daughter of Rauf Ahmed Shaik/accused No.1 and who is also niece of these petitioners. Regarding marrying Atika, said Mustakeem discussed with his family members. They told him that they have no objection to marry Atika provided, 5 the family members of Atika consent for it. They also informed Atika to talk to discuss with her family members and get their consent then, marry. It is further alleged that family members of Atika did not agree for marriage of Atika with Mustakeem. It is also alleged that Atika and Mustakeem were in love since three years prior to the incident. In view of opposition by the family members of Atika, both deceased and Atika went to Bengaluru and got married. Thereafter, they returned to Miraj. Apprehending the threat or trouble from the family members, they filed a Protection Petition before the JMFC Court, Miraj, seeking protection against five persons as family members of Atika were repeatedly threatening to take away the life of Mustakeem. The family members of Atika lodged a missing complaint alleging that she was kidnapped. Atika appeared before the Judicial Magistrate and gave a statement under Section 164 Cr.P.C. stating that she voluntarily accompanied said Mustakeem on her own wish and will and she is in love with Mustakeem. It is alleged that in view of that, the family members of Atika were having ill-will and enmity towards Mustakeem. It is 6 alleged that they conspired to take away the life of Mustakeem.
3. It is further alleged that on 15.02.2022 at about 9.30 a.m., the complainant received a phone call stating that near Radio Kendra, near Kalebag Cross, Devaki Nagar, Vijayapura, somebody has caused accident and murdered his brother-Mustakeem. Immediately, the complainant and others went to that place. By that time, Mustakeem was taken to hospital and in the hospital, they found Mustakeem dead. There were injuries on his head and all over his body. In this regard, he lodged a complaint against eight persons.
4. The petitioner/accused No.12 in Crl.P.No.201211/2022 is arrested on 19.02.2022; the petitioner/accused No.5 in Crl.P.No.201126/2022 is arrested on 27.05.2022, and the petitioner/accused No.3 in Crl.P.No.201123/2022 is arrested on 26.05.2022. Their bail petitions came to be rejected by the learned Sessions Court. Hence, the petitioners have filed these petitions.
5. Heard Sri. Ameet Kumar Deshpande, learned Senior Counsel appearing for Sri.Shriharsha R. Harwal, 7 learned counsel for the petitioners in Crl.P.No.201126/2022 and Crl.P.No.201123/2022; and Sri.Shivanand V. Pattanashetti, learned counsel for petitioner in Crl.P.No.201211/2022 and Sri. Gururaj V. Hasilkar, learned High Court Government Pleader for respondent No.1-State and Sri.S.R.Kadloor, learned counsel for respondents No.2 and 3.
6. Learned Senior counsel for the petitioners argued that these petitioners have been falsely involved in these cases. They have no role in committing the said offences. If the entire charge sheet and the statement of the witnesses are perused, absolutely there is no material to show that these petitioners abetted or instigated to commit the murder of the deceased. The statements of the witnesses CW-29- Sunilkumar and CW.32/Bibiayisha, if perused, there is no specific action alleged against petitioner-Anees Ahmed, which could show instigation. Similarly the statement of CW.35/Ayyub on the face of it shows that only it is hearsay.
7. Learned Senior Counsel further argued that the said petitioner/Anees-accused No.3 is a Professor in 8 Sociology, in Anjuman Degree College, Vijayapur. He has won number of awards. There is no criminal antecedents against this petitioner. He was suffering from hypertension, sugar. The petitioner is having immovable properties. Hence, the apprehension of the petitioner absconding is not at all present. The petitioner is ready and willing to abide by any conditions that may be imposed by the Court.
8. Learned Senior Counsel further argued that petitioner/Accused No.5 is a P.E.Teacher in Vikas Kannada High School, Vijayapura. He is having deep roots in the society. There is nothing to prove or to show that if he is enlarged on bail, he tamper the prosecution witnesses or evidence. They have got both movable and immovable properties, so expanding bail does not arise.
9. Learned Senior counsel has referred to statement of witnesses stated above, except Bibiayesha stated that these petitioners were seen near the place of offence and the other allegations of charge sheet are absurd.
10. Learned Senior Counsel also argued that the Accused No.4/Rayees Usman; Accused No.6/Fameeda; and 9 Accused No.8/Maqsood; were already granted bail by this Court in Crl.P.No.200805/2022 and Crl.P.No.201048/2022 c/w Crl.P.No.201047/2022. Therefore, learned Senior Counsel argued that these petitioners have also to be enlarged on bail on the ground of parity and other grounds urged. Hence, he prayed to allow the petitions.
11. Sri. Shivanand Pattanashetti, learned counsel appearing for Accused No.12 i.e. petitioner in Crl.P.No.201211/2022 argued that the petitioner is innocent and he has been falsely involved in this case. The allegation against this petitioner is that this petitioner and Accused Nos.9, 10 and 11 are engaged to commit murder by taking supari of Rs.10.00 lakhs. There is no material to show with regard to supari amount. There is no investigation with regard to where and when the said amount was utilised. The complainant being a Police Constable has created a false case though it is a case of accident. The petitioner is a student, aged about 19 years old. So calling him as a supari killer is unbelievable. There is no overt act alleged against this petitioner. The investigation is completed. Accused Nos.4, 8 and 6 are already released on bail by this Court. This 10 petitioner is in custody from 19.02.2022. The petitioner is ready and willing to abide by any conditions that may be imposed by this Court. He further argued that simply because the police have called a person as supari killer unless there is any material against him, he cannot be termed as supari killer in the absence of any material. Hence, they prayed to allow the petition.
12. Against this, learned HCGP in addition to filing written objection argued that the learned JMFC has granted permission to make further investigation. Still, the further investigation is in progress. He further argued that the charge sheet witnesses CWs.32, 33 and 34 i.e. CW/32- Bibiayesha, Mohd Umer and Afreen, statements clearly shows that have seen these accused No.1/Rouf, Accused No.3/Anees Ahmed, Accused No.5/Ishaq Ahmed with petitioner/accused No.12-Vikram S/o Raju Rathod along with others. Similar is the statement of CW.33/Mohd Umer and also CW.34/Afreen. CW.34 is the sister of the deceased. Further, the witnesses have stated that the petitioners have also followed the killers in a Paulo car. This is supported by voluntary statement of accused No.1/Rauf. The statement of 11 witnesses disclose that the petitioners and others followed the killers and joined their hands in the murder of deceased- Mustakeem. The conspiracy of petitioner and others is evident from statements of witnesses. Accused Nos.3 and 5 are the younger brothers of Atika and children of accused No.1.
13. Further, learned High Court Government Pleader argued that these petitioners are not entitled to be enlarged on bail. All these petitioners followed the murderers. Their voluntary statements also show that there is conspiracy to kill the deceased-Musthkeem and in furtherance that conspiracy he was murdered. As there is a prima facie case against them to engage supari killers i.e. accused Nos.9 to 12 and their voluntary statements, they are not entitled to be enlarged on bail. Hence, he prayed to reject the bail petitions.
14. Sri. S.R.Kadloor, learned counsel for respondent Nos.2 and 3 in addition to filing of statement of objections, argued that respondent No.2's father in order to harass her husband, had filed a false case against the deceased and his 12 father and others for the offences punishable under Sections 323, 324, 366, 341, 504 and 506 read with 149 of IPC. It is also contended that during stay at Miraj, her father called over phone to Kareemsab and conference call with accused No.8/Maqsood and threatened the deceased. Accused No.1 also called her over a phone and threatened to take away her life.
15. Learned counsel further argued that accused No.3/Anees Shaik had telephoned through mobile to CW.33/Kareem and threatened him and his son for giving shelter to deceased and his wife/CW.19-Atika. It is also evident from the statement of witnesses CW.27/Mohd.Omer, CW.28/Afreen sister of deceased, CW.35/Mohd.Zuber, CW.38/Mehaboobsab have seen these petitioners coming over there while he being in Itagi petrol bunk. CW.18/Riyaz Ahmed-father of deceased has also seen these petitioners near the Itagi petrol bunk. CW.25-Sarojini Kolar Mahila Traffic PSI came to the spot and after arrest the accused, she has identified petitioners. He further argued that there is a threat to life of Atika and her son.
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16. Learned counsel argued that as far as the accused No.12 is concerned, he was standing at a particular point and informing about the movements of deceased to other accused who are supari killers. The overt act does not include actual assault. But the role of this petitioner involvement, right from conspiracy of meeting to till the commission of the offence. It is evident that accused Nos.1, 2, 10, 11, 13 and 14 all have stated in their voluntary statement about involvement of this petitioner/accused No.12. CW.41/Arvind has stated that he had given his SIM card to this petitioner/accused No.12, which he has used throughout the day one of conspiracy meeting till commission of offence. The call details have been produced. Learned counsel further argued that the statement of CW.45/Raju shows that he had given his two wheeler vehicle to this accused No.12 bearing No.KA-28-EZ-2234. The said incriminating article was recovered.
17. There cannot be any material records to show about giving Rs.10.00 lakh to supari and giving 1.00 lakh advance. Out of that amount, Bolero vehicle was purchased in the name of accused/Santosh. It is he who actually 14 introduced other supari killers to accused Nos.1 to 5. This accused along with accused Nos.9 to 11 and 13 have formed one gang. Therefore, with these, it is not only threat to Atika, it is also to her family members. Therefore, petitioners are not entitled to be enlarged on bail. Hence, he prayed to reject the petitions.
18. It is the settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail, the Court will have to take into consideration, (1) the nature and seriousness of the offence; (2) character of the accused;
(3) circumstances which are peculiar to
accused;
(4) reasonable probabilities of presence of the accused not being secured at trial;
(5) reasonable apprehension of witnesses
being tampered with; and
(6) larger interest of public or the State and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence.
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19. In the light of these principles, let me consider the bail petitions. I have perused the statement of the witnesses. The charge sheet shows that accused Nos.1, 2, 3, 5, 9, 10, 11, 12, 13 and 14 have conspired together and they went near Itagi Petrol Pump and accused Nos.1, 3 and 5 were watching. Accused No.10 and Accused No.11 took the Bolero vehicle and dashed against the vehicle of the deceased from behind and due the said impact of the said vehicle, the deceased vehicle hit to the tractor, consequent upon, he fell down. Then accused Nos.2 and 9 assaulted him with base ball bat, on his head and ran away. The main assault alleged is by accused No.2 and it is accused Nos.12 and 14 came on the motorcycle and accused No.11 came in a Bolero vehicle to that spot following the deceased.
20. I have perused the statement of the Atika-wife of the deceased-Mustakeem and her two further statements. Her statement shows that she came to know about the death of her husband through her brother-in-law. Once she states that her father told about the involvement of these petitioners and another time, she states about the involvement of her father in the alleged crime. Her father 16 himself is accused No.1 in this case. The statement of the witnesses recorded by the Investigating Officer as far as these petitioners are concerned shows that the CW.26- Bibiayesha, CW.27-Mohd.Umer, CW.28/Afreen, who is sister of deceased and CW.35-Mohd.Zuber, CW.38/Mehaboobsab were all eyewitnesses. CW.32/Sudhadev was auto driver near petrol bunk. CW.22/Rajiya and CW.25/Sarojini were the eyewitnesses, who have identified these petitioners near the scene of the offence. It is also evident that further statement of CW.33/Karimsab the involvement of accused No.12.
21. Admittedly, accused Nos.3 and 5 are the younger brothers of Atika. Accused No.1 is the father of Atika, who is main accused. It is also in the statement of witnesses this accused No.12 and 14 came on a motorcycle and accused No.2 and 9 assaulted the deceased, accused Nos.1, 3 and 5 were watching near Itagi petrol pump, accused No.10 took a Bolero vehicle dashed from hind side to the vehicle of the deceased. Same is evident from the statement of prosecution witnesses. There is statement of witnesses regarding the SIM Card number given to accused No.12 and he going on a 17 motorcycle and same is recovered in the presence of panchas.
22. It is evident from charge sheet, role of these petitioners i.e. accused No.12, 3 and 5 prima facie shows their involvement in the commission of crime. There are statement of witnesses about the conspiracy and call records of accused No.12 speaking to other alleged supari killers and with the other accused are taken.
23. This type of murder is called as a 'Honour killing'. Though both deceased and his wife belongs to same caste, but the father of Atika and his family members were opposed to deceased marrying her. It is stated that Atika's family is very rich than affluent family.
24. The nature of 'Honour Killing' is shocking. It has got a large impact on the society. It is alleged that the family members of Atika took the help of accused Nos.9 to 12 to eliminate deceased-Musthakeem for a simple reason that they don't like or they don't relish the marriage of Atika with deceased. In fact, she has given a complaint seeking protection against her family members at Miraj Court. It is 18 alleged that they were made to come to Vijayapura by accused No.1-father of Atika stating that they have forgotten everything, but it is alleged that it in the guise of securing them at Vijayapura, committed murder of Atika's husband with the help of accused Nos.9 to 12.
25. Looking to the charge sheet material, the statement of the witnesses and the records discussed above, clearly indicates that there is prima facie material against these petitioners. Simply because some of the accused were granted bail, that does not enure benefit to other accused to claim the ground of parity. The allegations against the each accused is to be ascertained and their complicity in the crime overt act alleged against them and prima facie case against their involvement and their relationship with deceased and Atika is to be seen, while considering the Bail petition. The material placed by the prosecution in the charge sheet prima facie shows the commission of crime by these accused.
26. Admittedly, the alleged offence is punishable with death or imprisonment for life. Accused No.1 is none other than the father of the Atika and some of the accused are her 19 brothers. Already she had expressed threat by her family members. It is alleged that the family members of Atika took help of accused Nos.9 to 12 to murder Musthakeem. Therefore, the apprehension of the prosecution that if these petitioners are released on bail, they may threaten the complainant and his family members and the wife of the deceased and other witnesses cannot be ruled out.
27. Looking into nature of allegations and material against them, the apprehension of the prosecution regarding tampering of prosecution evidence appears to be well founded. As the act of 'Honour Killing' is a heinous crime, which shocks the conscience of the society has to be dealt with utmost care and caution while considering the material against the petitioners when they have applied for Bail. Case of each petitioners will have to be considered looking to the gravity of and the nature of their involvement and material against them.
28. Keeping in mind the principles regarding grant or rejecting the Bail as stated above, the petitioners contentions, the objections of the prosecution and the 20 material against them is considered, then, it is evident that the petitioners are not entitled to be enlarged on bail.
29. Accordingly, I pass the following:
ORDER The Criminal Petition No.201211/2022 filed by accused No.12; Criminal Petition No.201123/2022 filed by accused No.3; and Criminal Petition No.201126/2022 filed by accused No.5 are hereby rejected.
Sd /-
JUDGE s du