Karnataka High Court
Rafiqsab S/O Shamidsab Dotihal vs The State Of Karnataka on 21 April, 2023
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CRL.A No. 100083 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21st DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100083 OF 2023
BETWEEN:
1. RAFIQSAB S/O SHAMIDSAB DOTIHAL
AGE. 33 YEARS, OCCUPATION. AGRICULTURE,
R/O. HULIHAIDER, TQ. KANAKAGIRI, DIST. KOPPALA
PIN CODE-583231.
2. HUSSAINBASHA @ BASHASAB
S/O. MEHAMATHALI MALEGADDI
AGE. 21 YEARS, OCCUPATION. STUDENT,
R/O. HULIHAIDER, TQ. KANAKAGIRI, DIST. KOPPALA
PIN CODE-583231
...APPELLANTS
(BY SRI. L. S. SULLAD, ADV.)
AND:
1. THE STATE OF KARNATAKA
Digitally signed REPRESENTED BY STATE PUBLIC PROSECUTOR
by J MAMATHA
J Date:
HIGH COURT OF KARNATAKA DHARWAD
MAMATHA 2023.04.21 THROUGH KANAKAGIRI P.S.
16:40:40
+0530
2. HAMPAMMA W/O. VENKAPPA TALAWAR
AGE. 45 YEARS, OCCUPATION. COOLIE,
R/O. HULIHAIDER, TQ. KANAKAGIRI, DIST. KOPPALA
PHONE NO.9008746897
PIN CODE-583231.
...RESPONDENTS
(BY PRAVEEN K. UPPAR, HCGP FOR R1:
AND NOTICE SERVED FOR R2)
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CRL.A No. 100083 of 2023
***
THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF
SC/ST ACT-2016 OF CR.P.C. SEEKING TO ENLARGE THE ABOVE
SAID APPELLANTS (ACCUSED NO.3 AND 27) ON BAIL IN
KANAKGIRI POLICE STATION CRIME NO. 85/2022 ALLEGING
U/SEC. 143, 147, 148, 323, 324, 354, 448, 452, 427,302, 212,
504, 506, 109 R/W 149 OF IPC AND SECTION 3(1)(R), 3(1)(s),
3(2)(w), 3(2)(VA), 3(2)(V) OF SC/ST ACT-2015, SC(AC) CASE
NO. 76/2022 ON THE FILE OF THE PRINCIPLE DISTRICT AND
SESSIONS COURT KOPPAL.
THIS APPEAL COMING ON FOR ORDERS AND THE SAME
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
11.04.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant-accused Nos.3 and 27 feeling aggrieved by rejection of bail application filed under Section 439 of Cr.P.C. on the file of Prl. District and Sessions Judge, Koppal in SC.(AC) No.76/2022, dated 30.1.2023, preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 11.8.2022 at 9.00 a.m. to 9.30 a.m. the complainant was in the house along with her husband Yankappa and her relatives namely Hanumamma Talwar, Iramma Talwar and Parshuram -3- CRL.A No. 100083 of 2023 Talwar. At that time, all accused by forming unlawful assembly committed trespass into the house and abused the complainant by referring her caste. Further, complainant, Iramma, Hanumamma, Parashuram were assaulted with club and dragged the husband of complainant Yankappa from the house and taken him to Valmiki Circle, further they assaulted him with stone, club, rod and stabbed with knife, due which he suffered grievous injuries and died at the spot. On these allegations made in complaint, criminal law was set into motion by registering case in Kanakagirie Police station Crime No.85/2022 for the offences punishable under Sections 143, 147, 148, 323, 324, 354, 448, 452, 427, 302, 212, 504, 506, 109 R/w. Section 149 of IPC and Section 3(1)(r), 3(1)(s), 3(2)(w), 3(2)(v) and 3(2)(V-a) of SC/St Act, 2015. The investigating officer on completion of investigation filed charge sheet.
4. Learned HCGP appeared for respondent No.1 and respondent No.2 though served with notice, remained un- represented.
5. Learned HCGP opposes the application contending that charge of committing murder of husband of complainant- Yankappa is on accused Nos. 1, 3 and 27. The statement of -4- CRL.A No. 100083 of 2023 injured witnesses and eye witnesses CWs.13 to 77 would go to show involvement of accused Nos.3 and 27 in committing the murder of husband of complainant-Yankappa. It is the case of clash between two groups. Case and counter case has been filed. Investigating officer has collected CCTV footage and accused were found by holding weapons and it is case of mob assault. There are sufficient material evidence against the accused and the Trial Court was justified in rejecting the bail application. Hence, prayed for dismissal of appeal.
6. Heard the arguments of both sides.
7. The prosecution alleges that on 11.8.2022 at 9.00 a.m. to 9.30 a.m. accused have formed unlawful assembly and committed trespass into the house of complainant, they abused complainant by referring her caste, dragged complainant, Iramma, Hanumamma, Parashuram and assaulted them with club, further dragged the husband of complainant-Yankappa from the house and taken him to Valmiki Circle, where they assaulted him with stone, club, rod and stabbed him with knife, due which he suffered grievous injuries and died.
8. Indisputably, incident in question occurred due to group clash between two communities over dispute in installing -5- CRL.A No. 100083 of 2023 idol of Walmiki, which was taken away prior to two years of incident. It was decided to have fresh statue and to install even prior to Moharam festival. However, other community people were forcing to install statue of Budda, Basava and Ambedkar. There was meeting of panchayath and objections were raised. It is on account of such objections raised between two groups the incident in question has occurred.
9. On perusal of P.M. Report of Yankappa, it would go to show that deceased Yankappa Talwar has sustained following injuries.
i) Incised wound on the middle of scalp 8 c.m. length, 2 c.m. width, 5 c.m. depth.
ii) Incised wound on the left temporal region 4 c.m.
length, 3 c.m. width, 5 c.m. depth
iii) Incised wound on right ankle 3 c.m. length X 3 c.m.
width X 3 c.m. depth and there is heamatoma in the middle brain and temporal lobe On the basis of FSL report final opinion was given that death is due to cardio respiratory arrest secondary to head injury.
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10. Allegations of prosecution is that deceased was assaulted by means of stone and club. However, no any weapon, which could cause incised wound has not been seized in this case. Whether incised wound referred in P.M. report can be caused by means of stone and club has to be decided at the time of trial.
11. Indisputably, there is counter case in Crime No.84/2022 and respondent No.2 is shown as accused No.57 in the said case. The said complaint is filed after filing of the present complaint.
12. Identification of accused involved in this case is based on two videos received by Ravikumar PC 201 from one of whats-app group member and the same was copied in pen drive and mobile recording of TV-9 report by Ravikumar PC 201 in his mobile. The copies of photographs are found from page Nos. 195 to 208. The said photographs only show group of persons assembled at the spot with club. Out of photographs produced along with charge sheet, it could not be ascertained at this stage the overt act of appellants-accused Nos. 3 and 27 in causing death of Yankappa.
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13. Accused No.3 and 27 are in judicial custody right from their arrest till today. Investigation is already completed and charge sheet has been filed. Trial may take some reasonable time looking to the number of witnesses that have to be examined in this case. Hence, under these circumstances, in my opinion, accused Nos. 3 and 27 are entitled for bail. The apprehension of prosecution can be met by imposing suitable conditions. Consequently, proceed to pass the following:
ORDER The appeal filed by appellants/accused Nos. 3 and 27 is allowed, The order passed by Prl. District and Sessions Judge, Koppal in SC.No.76/2022, dated 30.1.2023 is hereby set aside.
Appellants/accused Nos. 3 and 27 are ordered to be released on bail in connection with Cr.No.85/2022 of Kanakagiri Police Station for the offences punishable Sections 143, 147, 148, 323, 324, 354, 448, 452, 427, 302, 212, 504, 506, 109 R/w. Section 149 of IPC and Section 3(1)(r), 3(1)(s), 3(2)(w), 3(2)(v) and 3(2)(V-a) of SC/St Act, 2015 subject to following conditions:-8-
CRL.A No. 100083 of 2023
i) Appellants/accused Nos. 3 and 27 shall execute personal bond for a sum of Rs.1,00,000/- each with one surety for likesum amount to the satisfaction of the Trial Court;
ii) Appellants/accused Nos. 3 and 27 shall not leave the jurisdiction of trial Court without its prior permission;
iii) Appellants/accused Nos. 3 and 27 shall not tamper with the prosecution witnesses in any manner.
iv) Appellants/accused Nos. 3 and 27 shall produce address proof documents of themselves and that of their sureties.
(Sd/-) JUDGE vb/-