Gujarat High Court
Mohammad Atik @ Montu Mohammad Hanif ... vs State Of Gujarat on 21 August, 2018
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/13558/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13558 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 13561 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 13563 of 2018
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MOHAMMAD ATIK @ MONTU MOHAMMAD HANIF KHOKAR
Versus
STATE OF GUJARAT
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Appearance:
MR YN OZA, SENIOR ADVOCATE assisted by MS KAVITA B GAJJAR(5621) for the
PETITIONERS
MR IN SYED with MR.CHIRAG B UPADHYAY(6735) for the RESPONDENT(s) No. 1
MR HK PATEL, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 21/08/2018
ORAL ORDER
1. These applications under Section 439 of the Criminal Procedure Code is filed by three accused persons in connection with I-CR No.24 of 2017 registered with Hansot Police Station, Bharuch for offences under Sections 302, 143, 147, 148, 149 and 120B of the Indian Penal Code, Sections 25(1)(A), 1(A)(A), 27(3) and 29 of the Arms Act and Section 135 of the Gujarat Police Act. 1.1 After due investigation, the applicants have been charge sheeted on 18.03.2018 and in the charge sheet, they have been shown as accused Nos.5, 6 and 7.
2. In view of identical roles of the applicants Page 1 of 9 R/CR.MA/13558/2018 ORDER and being accused of the same crime and being represented by common Advocate, with the consent of the parties, all these applications are taken up jointly.
3. The FIR is registered on 06.06.2017 at 22.00 hours for the offence which took place at 18.50 hours. In the FIR, in all, 14 persons are arraigned as accused. It is alleged in the FIR that in the evening hours, informant Sadikhussain Abdulsamad Kanunga and his family members were returning from graveyard after performing certain rituals. At that time, whey were intercepted by accused persons who were armed with dangerous weapons, including fire arm. At that time, the accused persons caught hold of the brother of the informant-Sabbirhussain (deceased) and while some of the co-accused caught hold of Sabbirhussain and while others instigated co-accused Ismile @ Pintu Ibrahim Khokhar to fire at Sabbarhussain and accordingly, Ismile @ Pintu Ibrahim Khokhar fired in the head of Sabbirhussain, as a result of which Sabbirhussain collapsed and the assailants along with their weapons escaped from the place. The others got together to take injured Sabbirhussain to hospital where he was declared dead.
3.1 It is further alleged that the informant, who is younger brother of deceased Sabbirhussain, few days back was informed by Sabbirhussain that Sabbirhussain had Page 2 of 9 R/CR.MA/13558/2018 ORDER raised voice against illegal activities of 'Mufti' (co- accused) of Darul Uloom of Hansot, who was indulging in sodomy with children of the institution and as Sabbirhussain had received public support of the villagers, as a result of which said 'Mufti' had to leave his position and had an axe to grind and therefore, another co-accused Samilraj, who had land dispute with deceased Sabbirhussain, joined hands to conspire against the deceased.
3.2 It is alleged in the FIR that the present applicants caught hold of deceased Sabbirhussain so that he cannot move or escape and called upon co-accused Ismile @ Pintu Ibrahim Khokhar to fire at him and it is thereafter that accused Ismile @ Pintu Ibrahim Khokhar carried out firing causing injury on the head of deceased Sabbirhussain. It is in the aforesaid set of circumstances, the FIR came to be registered.
4. Learned Senior Advocate Mr.Y.N.Oza for the applicants submitted that the applicants had filed bail application before the Sessions Court at Ankleshwar being Criminal Misc.Application Nos.434, 433 and 435 of 2018 and learned Sessions Court has rejected the said applications by separate order dated 26.06.2018.
4.1 Learned Senior Advocate for the applicants
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R/CR.MA/13558/2018 ORDER
submitted that participation of the applicants in the
offence cannot be believed as the applicants are resident of village Kapodara, which is 25 away from from Hansot. The applicants belong to well-to-do family and having their own source of earnings and would not indulge in this kind of offence.
4.2 It is submitted that only because the applicants are relatives of accused No.14-Mohammadsafi @ Pappu Ibrahim Khokhar, the whole family is sought to be roped into the offence. It is submitted that the purpose of roping into this offence is huge parcel of land on which family of the deceased has an eye. It is submitted that no motive even after the investigating is coming forth insofar as the present applicants are concerned. They are neither related to Mufti or Salimraj, who allegedly had an axe to grind against the deceased. It is submitted that though the prosecution has made out a case of contract killing, but there are no ingredients or there is nothing to show that the applicants have indulged in this kind of offence of contract killing. 4.3 It is submitted that even if the case of the prosecution is believed in its entirety, yet there are no roles attributed to the applicants in causing injury to the deceased. It is submitted that it is only a case of single fire which was fatal and for such an offence, 14 Page 4 of 9 R/CR.MA/13558/2018 ORDER persons are being involved. It is submitted that invocation of Sections 149 and 120B of the Indian Penal Code itself shows that the investigating is not fair. 4.4 It is submitted that the witnesses on which the prosecution relies upon to implicate the applicants are relatives of the deceased and therefore, statements of such witnesses are required to be viewed in that manner. 4.5 It is lastly submitted that the deceased had animosity with several persons and was himself involved in several offences and therefore, many persons had motive to do away with the deceased rather than the present applicants. It is therefore prayed that the bail should be granted to the applicants.
5. As against this, learned APP submitted that the offence is of a very serious nature, where deceased Sabbirhussain, who raised voice against religious head for indulging in sodomy in an educational institution, was done to death. It is submitted that an elaborate investigation was carried out and sufficient evidence is gathered to charge sheet the applicants. 5.1 It is submitted that motive behind the crime is very much clear as there exists previous FIR against said Mufti for offence under Section 377.
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R/CR.MA/13558/2018 ORDER 5.2 It is submitted that the applicants are facing
antecedents and they are facing several serious offences under Sections 302 and offences under the Arms Act with this Police Station.
5.3 Learned APP lastly submitted that the trial has commenced as charge is framed and two witnesses have been examined. It is therefore prayed that the application may not be considered.
6. The complainant side is represented by Shri I.H.Syed, who submitted that the present FIR may not be seen in isolation, as the offence has been carried out by dangerous criminals who are members of dreaded criminal gang known as 'Khokhar gang' operating in the area. 6.1 It is submitted that the application for anticipatory bail filed by co-accused Salimraj was rejected on merits by this Court and SLP was also withdrawn before the Apex Court. It is submitted that as the evidence of the investigating agency is same for all the accused, the same set of evidence insofar as the present applicants is concerned, cannot be considered differently.
6.2 It is vehemently submitted that the accused side is known for tampering with the witnesses. Page 6 of 9
R/CR.MA/13558/2018 ORDER 6.3 It is submitted that statement of Dr.Zakir
Hussain was recorded in this very offence wherein the said witness has stated regarding act of sodomy performed on children by co-accused (Mufti). Still, by tampering with the witnesses by influencing the father of the victim, the complaint was sought to be quashed. However, such order was challenged before the Apex Court and the Apex Court is pleased to grant special leave.
7. Heard learned Advocates for the parties and taken into consideration the investigation case papers.
8. The Court has perused the statements of the witnesses. The case of the prosecution, insofar as the present applicants are concerned, is based on statements of witnesses, which include the informant himself. In the FIR, the informant has categorically attributed roles to the present applicants, who caught hold of deceased Sabbirhussain in such a manner that it facilitated the main accused Ismile @ Pintu Ibrahim Khokhar to carry out firing and resultantly, Ismile @ Pintu Ibrahim Khokhar successfully fired directly on the head of the deceased. The informant is supported by version of other eyewitnesses whose statements were recorded on 08.06.2017. The versions given by these witnesses in their statements is very much consistent to the version of the informant. The other witnesses who have given Page 7 of 9 R/CR.MA/13558/2018 ORDER identical narration are Abdulrazak and Salaudin Ayub, whose statements were recorded during the course of investigation.
8.1 Moreover, the applicants themselves have antecedents as under:-
Mohammad Atik @ Montu Mohammad Hanif Khokar Sr. No. Police Station CR No. Sections 1 Hansot Police Station I-24/17 143, 147, 148, 149, 302 and 120B of IPC, Sections 25(1)A, A, 27(3) and 29 of the Arms Act and Section 135 of the GP Act.
2 Ankleshwar Rural Police II-82/12 323, 504, 506(2) and 114 of of
Station IPC
Mohammad Hanif @ Party Ibrahimbhai Khokar Sr. No. Police Station CR No. Sections 1 Hansot Police Station I-75/93 143, 147, 148, 149, 307, 324, 504 and 506(2) of IPC and Section 135 of the GP Act.
2 Hansot Police Station II-52/93 504, 506(2) and 114 of IPC 3 Hansot Police Station I-72/94 323, 504, 452 and 114 of IPC and Section 135 of the GP Act 4 Hansot Police Station II-32/95 506, 504 and 114 of IPC and Section 135 of the GP Act 5 Hansot Police Station I-15/96 147, 148, 149, 323, 326, 504 and 506(2) of IPC and Section 135 of the GP Act 6 Hansot Police Station II-28/96 323, 504, 506(2) and 114 of IPC and Section 135 of the GP Act 7 Hansot Police Station I-17/11 143, 147, 148, 149, 325 and 504 of IPC 8 Hansot Police Station I-24/11 143, 147, 148, 149, 325, 427, 504 and 506(2) of IPC and Section 135 of the GP Act
9 Hansot Police Station I-17/17 143, 147, 148, 149, 452, 436, 427 and 504 of IPC and Section 135 of the GP Act 10 Hansot Police Station I-24/17 143, 147, 148, 149, 302 and 120B of IPC, Sections 25(1)A, A, 27(3) and 29 of the Arms Act and Section 135 of the GP Act.
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R/CR.MA/13558/2018 ORDER
11 "B" Div. Police Station, II-21/18 188 of IPC and Sections 42, 43,
Bharuch 45(12) of the Prisons Act.
Mohammad Istiak @ Baba Mohammad Hanif Khakar Sr. No. Police Station CR No. Sections 1 Hansot Police Station I-17/11 143, 147, 148, 149, 325 and 504 of IPC 2 Hansot Police Station I-24/11 143, 147, 148, 149, 325, 427, 504 and 506(2) of IPC and Section 135 of the GP Act 3 Hansot Police Station I-17/17 143, 147, 148, 149, 452, 436, 427 and 504 of IPC and Section 135 of the GP Act 4 Hansot Police Station I-24/17 143, 147, 148, 149, 302 and 120B of IPC, Sections 25(1)A, A, 27(3) and 29 of the Arms Act and Section 135 of the GP Act.
9. The Court has considered that the trial is proceeding as the charge is framed and even two witnesses are examined. Therefore, at this stage, to enlarge the applicants with aforestated antecedents not at all desirable.
10. In view of the aforesaid discussion, the Court is of the opinion that no error is committed by the Sessions Court in rejecting the bail application of the applicants. No case is made out for exercise of discretionary power in favour of the applicants. Hence, the application is rejected. Rule is discharged.
(A.Y. KOGJE, J) SHITOLE Page 9 of 9