Karnataka High Court
Saleem Malik Alias Salem S/O Rafiqsab ... vs The State Of Karnataka on 29 August, 2023
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NC: 2023:KHC-D:9636
CRL.P No. 101840 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO.101840 OF 2023
BETWEEN:
SALEEM MALIK @SALEM,
S/O RAFIQSAB BALLARI,
AGE: 35 YEARS,
OCC: CENTERING WORK,
R/O: BYAHATTI PLOT,
ANAND NAGAR, OLD HUBBALLI,
HUBBALLI,
DIST: DHARWAD.
...PETITIONER
(BY SRI. K.M. SHIRALLI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH KASABAPET
CHANDRASHEKAR
POLICE STATION HUBBALLI,
LAXMAN
KATTIMANI HUBBALLI,
R/BY STATE PUBLIC PROSECUTOR,
Digitally signed by
CHANDRASHEKAR
LAXMAN
HIGH COURT OF KARNATAKA,
KATTIMANI
BENCH DHARWAD.
...RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. SEEKING TO ORDER THE RELEASE OF THE
PETITIONER/ACCUSED NO.2 ON BAIL IN SESSION CASE
NO.47/2021 REGISTERED FOR THE OFFENCES P/U/SEC 143,
147, 148, 323, 324, 341, 302, 504, R/W SEC. 149 OF IPC, IN
PENDING BEFORE THE V ADDL. DISTRICT AND SESSIONS
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NC: 2023:KHC-D:9636
CRL.P No. 101840 of 2023
JUDGE DHARWAD SITTING AT HUBBALLI ARISING OUT OF
HUBBALLI KASABAPETH P.S. CRIME NO.52/2020.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is arraigned as accused No.2 has filed this petition under Section 439 Cr.P.C. to release him on bail for the offences punishable under Sections 143, 147, 148, 323, 324, 341, 302, 504 R/W Sec. 149 of Indian Penal Code (for short, 'IPC').
2. In support of the petition, petitioner has contended that he is innocent of the accusations leveled against him. He has been falsely implicated at the instance of persons inimical towards him. So far PWs1 to 25 are examined. All of them have turned hostile and given go bye to the case of the prosecution. Only few of the witnesses are left to be examined. The completion of trial would take a long time as the remaining witnesses are official witnesses coming from different places. Petitioner was arrested on 07.12.2020 and since then he is in judicial -3- NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 custody. On account of his incarceration, his family is undergoing immense hardship. No prima facie material is there to connect the petitioner to the alleged crime. He is ready to abide by any conditions that may be imposed and prays to allow the petition.
3. Learned HCGP submitted oral objections stating that after conducting detailed investigation, a charge sheet is filed against accused No.1 to 5 alleging that on 03.12.2020 at 10.00 p.m., accused No.6-Sadiq was standing in front of a pan shop of CW15-Khadarsab situated on S.M.Krishnanagar road of Ishwar nagar, Old Hubli and was smoking. Accused No.3-Aslam came there along with his friends CW13-Niyaz Ali and CW14- Mohammed Aziz and they also started smoking. Accused No.3-Aslam saying that Rs.500/- is still due to him in respect of the work carried out by CW27-Mohammed Gouse and called him over phone and said that he is coming. He also said that Giri and Suri are also coming in support of CW27-Mohammed Gouse.
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NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 3.1 To this, CW14-Mohammed Aziz reacted by saying that whether they are big dadas and what they are going to do. Accused No.6-Sadiq assaulted CW14- Mohammed Aziz on his cheeks and abused him saying why he is insulting Anna. When accused No.3-Aslam demanded accused No.6-Sadiq as to why he is assaulting his boys and called deceased Shahrukh Soudagar and informed him that the boys of Datta are quarreling and he should come and mediate. In turn, deceased Shahrukh asked them to come near almirah factory of CW17-Babajan and came there.
3.2 Accused No.4-Dattatreya, accused No.5-Aftad and accused No.6-Sadiq were already present there. At around 11.30 p.m. accused No.3-Aslam came there along with his elder brother i.e. accused No.1-Salman on TVS Ntorq motorcycle bearing Chassis No.MD626AK36L2H14580. Deceased Shahrukh advised that both side boys are very young and they should stop their dispute. For this accused No.1-Salman reacted and abused deceased Shahrukh. When deceased Shahrukh -5- NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 objected for abusing him, accused No.1-Salman started assaulting him with hands. Accused No.4 to 6 demanded deceased Shahrukh whether he has come to do dadagiri and abused and assaulted him with hands. At this stage, accused No.2-Saleem caught hold of the deceased and accused No.3 to 6 caught hold of his legs. Accused No.1- Salman saying that he would finish Shahrukh Soudagar, took out a knife and gave a blow. It missed and stuck into his thigh when deceased wriggled to free himself. At this stage, accused No.2-Saleem saying whether he is trying to escape, retracted the knife from the thigh of deceased and gave a blow on his head and caused grievous injury. Both accused No.1 and 2 took injured Shahrukh on said motorcycle bearing Chassis No.MD626AK36L2H14580 by sitting him in between them and left him near the service road of NH4 bypass toll gate. Due to heavy bleeding, Shahrukh died and thereby all the accused persons have committed the offences punishable u/secs.143, 147, 148, 323, 324, 341, 302, 504, R/W Sec. 149 IPC. -6-
NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 3.3 After coming to know about the incident, the brother of deceased namely Sarfaraj Soudagar rushed to the spot and shifted deceased Shahrukh to the hospital in an auto rickshaw where the doctor declared him as brought dead. He lodged the complaint. After conducting detailed investigation, the concerned police have filed charge sheet. A strong prima facie case is made out against all the accused persons including the petitioner. Though in custody, petitioner has managed to get the material witnesses hostile. If released on bail, he may further terrorize the witnesses and succeed in securing an acquittal and prays to dismiss the petition.
4. Heard arguments and perused the record.
5. Thus, a charge sheet came to be filed against accused No.1 to 6 for the offences punishable u/secs.143, 147, 148, 323, 324, 341, 302, 504, R/W Sec. 149 IPC. Alleging that on 03.12.2020 at 10.00 p.m., accused No.6- Sadiq was standing in front of a pan shop of CW15- Khadarsab situated on S.M.Krishnanagar road of Ishwar -7- NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 nagar, Old Hubli and was smoking. Accused No.3-Aslam came there along with his friends CW13-Niyaz Ali and CW14-Mohammed Aziz and they also started smoking. Accused No.3-Aslam saying that Rs.500/- is still due to him in respect of the work carried out by CW27-Mohammed Gouse and called him over phone and said that he is coming. He also said that Giri and Suri are also coming in support of CW27-Mohammed Gouse.
5.1 To this, CW14-Mohammed Aziz reacted by saying that whether they are big dadas and what they are going to do. Accused No.6-Sadiq assaulted CW14- Mohammed Aziz on his cheeks and abused him saying why he is insulting Anna. When accused No.3-Aslam demanded accused No.6-Sadiq as to why he is assaulting his boys and called deceased Shahrukh Soudagar and informed him that the boys of Datta are quarreling and he should come and mediate. In turn, deceased Shahrukh asked them to come near almirah factory of CW17-Babajan and came there. -8-
NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 5.2 Accused No.4-Dattatreya, accused No.5-Aftad and accused No.6-Sadiq were already present there. At around 11.30 p.m. accused No.3-Aslam came there along with his elder brother i.e. accused No.1-Salman on TVS Ntorq motorcycle bearing Chassis No.MD626AK36L2H14580. Deceased Shahrukh advised that both side boys are very young and they should stop their dispute. For this accused No.1-Salman reacted and abused deceased Shahrukh. When deceased Shahrukh objected for abusing him, accused No.1-Salman started assaulting him with hands. Accused No.4 to 6 demanded deceased Shahrukh whether he has come to do dadagiri and abused and assaulted him with hands. At this stage, accused No.2-Saleem caught hold of the deceased and accused No.3 to 6 caught hold of his legs. Accused No.1- Salman saying that he would finish Shahrukh Soudagar, took out a knife and gave a blow. It missed and stuck into his thigh when deceased wriggled to free himself. At this stage, accused No.2-Saleem saying whether he is trying to escape, retracted the knife from the thigh of deceased and -9- NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 gave a blow on his head and caused grievous injury. Both accused No.1 and 2 took injured Shahrukh on said motorcycle bearing Chassis No.MD626AK36L2H14580 by sitting him in between them and left him near the service road of NH4 bypass toll gate. Due to heavy bleeding, Shahrukh died and thereby all the accused persons have committed the offences punishable u/secs.143, 147, 148, 323, 324, 341, 302, 504, R/W Sec. 149 IPC.
5.3 After coming to know about the incident, the brother of deceased namely Sarfaraj Soudagar rushed to the spot and shifted deceased Shahrukh to the hospital in an auto rickshaw where the doctor declared him as brought dead. He lodged the complaint.
6. CWs1, 12 to 26, 28 are eyewitnesses to the incident. Out of these CW1 is the brother and CW12 is the mother of the deceased. Out of the witnesses so far examined for the prosecution, PWs1 to 4, 6 to 14 including the brother of the deceased have turned hostile. For this reason, the petitioner who is accused No.2 is seeking bail
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NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 contending that despite giving summons and non-bailable warrants against the mother of the deceased, she is not secured by the concerned police to give evidence and the remaining witnesses are official witnesses and it may take some time to secure their presence and record their evidence. It is submitted by the learned counsel for the petitioner that having regard to the fact that majority of the witnesses have turned hostile there is practically no evidence to connect the accused with the crime in question and no purpose would serve by detaining him in judicial custody.
7. The allegations made against the petitioner and remaining accused are very grave. Infact, the major part is played by the petitioner in executing the assault on the deceased. Despite in custody, he has managed to get majority of the witnesses turned hostile including the brother of deceased who is also cited as eye witness. It appears intentionally the mother of the deceased is also held back and not tendered. When being in custody,
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NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 petitioner is able to excerpt so much of influence on the witnesses, one can imagine what would be his conduct if he comes out on bail. From the manner in which the trial is conducted, it appears the concerned police are also not taking proper interest in prosecuting the case. For the above reasons, this Court is of the considered opinion that petitioner is not entitled for bail and accordingly, the following:
ORDER The petition filed by petitioner/accused No.2 under Section 439 Cr.P.C. is rejected.
However, the trial Court is directed to secure all the material witnesses and examine them and conclude the trial within a reasonable time preferably within six months. Both prosecution and defence shall co-operate with the trial Court in disposing of the case at the earliest.
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NC: 2023:KHC-D:9636 CRL.P No. 101840 of 2023 The concerned police shall make proper endeavor to secure the witnesses and tender them before the Court for their evidence. The concerned police shall provide proper protection to the witnesses to give evidence without being influenced by the accused persons.
Sd/-
JUDGE CLK List No.: 1 Sl No.: 16