Karnataka High Court
Ummar Farooq vs State Of Karnataka on 9 January, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.9106/2017
BETWEEN:
Ummar Farooq
S/o Ali Kunhi
Aged about 30 years
R/o Perumogaru House
Kolchapu Perumogaru Post
Kedila Village
Bantwal Taluk
D.K. District-583 126. ... PETITIONER
(By Sri B V Pinto, Adv.)
AND:
State of Karnataka
By Bellare Police Station
By State Public Prosecutor
High Court
Bangalore-560 001. ...RESPONDENT
(By Sri K Nageshwarappa, HCGP)
This Criminal Petition is filed under Section 439 of the
Cr.P.C. praying to enlarge the petitioner on bail in
Cr.No.06/2016 of Bellare P.S., Dakshina Kannada, for the
offences P/U/Ss 120(B), 109, 302 and 201 of IPC.
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This Criminal Petition coming on for orders this day,
the Court made the following:
ORDER
This petition is filed by the petitioner/accused No.3 under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 120(B), 109, 302, 201 of IPC registered in respondent - police station Crime No.6/2016.
2. Brief facts of the prosecution case as per the complaint averments are, one Basheer Ahmed, brother of the deceased is the complainant in this case. He has stated in the complaint that on 23.9.2016 Friday afternoon complainant's brother Ismail Nelyamajalu had been to Ivarnadu Juma Masjid for prayer in his car bearing No.KA-21 N-6686, whereas the complainant had been to another Masjid at Bellare for prayer. By that time, the elder brother of the complainant by name 3 Mr.Haneef Saheb called the complainant through phone and informed that near Ivarnadu Juma Masjid at about 1.30 p.m. Ismail was found killed near V.K.Chicken centre by some culprits by using some sharp weapon by cutting the neck portion and hands and was murdered. Immediately, the complainant rushed to the said spot and found that in front of the car the deceased was lying, by sustaining grievous injuries to the neck and hands and he died. By the side of the dead body the cut fingers of Ismail were found lying. On the basis of the said complaint case was registered firstly against unknown persons and during investigation, the petitioner has been arrayed as accused No.3.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused No.3 and also the learned High Court Government Pleader appearing for the respondent-State.
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4. Learned counsel for the petitioner during the course of his arguments submitted that as per the complaint averments there are no eyewitnesses to the incident and the FIR came to be registered against unknown persons. Referring to the statement of C.Ws.2 and 3 who are said to be eyewitnesses as per the prosecution case recorded on 24.9.2016 i.e., on the next day of the incident, there also they have stated that some unknown persons caused the death of the deceased. Learned counsel submitted that subsequently, the further statement of the said two witnesses were recorded wherein they have identified the accused persons and subsequently even the test identification parade was conducted. But by the time the test identification parade was conducted the photographs of accused persons were already published in the newspaper. He has submitted that in view of these facts and as held by the Hon'ble Apex Court in the 5 judgment reported in 2014 Crl.L.J. 4458 in the case of Veena Devi Sharma Vs. State of Sikkim, it is not a valid test identification parade and cannot be relied upon. Apart from that, learned counsel also submitted that the main accused persons accused Nos.1 and 2 have been already granted bail by this Court. Hence, petitioner is also entitled for grant of bail on the ground of parity. Learned counsel also submitted that wife of the petitioner-accused No.3 is suffering from ailments and he has produced the documents in this regard i.e., original copy of medical certificate issued by the Doctor. He has submitted that even there is no committal proceedings to the Sessions Court. Hence, by imposing reasonable conditions, petitioner-accused No.3 may be enlarged on bail.
5. Per-contra, learned High Court Government Pleader during the course of his arguments submitted 6 that the present petitioner earlier approached this Court and this Court by its order dated 7.8.2017 rejected the bail petition holding that there are eyewitnesses to the incident i.e., C.Ws.2 and 3. This Court has also observed that the trial Court shall have to expedite the trial and after recording the evidence of eyewitnesses the petitioner-accused No.3 herein is at liberty to move the said Court seeking his release on bail. Hence, he has submitted that in view of the specific order passed by this Court, the petitioner cannot seek his release on bail when the eyewitnesses were not at all examined before the trial Court. He also submitted that looking to the prosecution material collected during investigation there is a prima facie case to show the involvement of the present petitioner in committing the alleged offences. When there are eyewitnesses to the incident and there is an allegation that the petitioner also 7 assaulted the deceased with deadly weapon, petitioner is not entitled to be granted with bail.
6. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record by the learned counsel for the petitioner along with the petition. I have also perused the orders passed by this court in respect of other accused persons.
7. The bail petition filed by accused Nos.4 and 7 came to be allowed by this Court by order dated 19.4.2017 and this Court while granting bail to accused Nos.4 and 7 at paragraph No.8 of the order has observed that 'as submitted by the learned counsel for the petitioners, the material allegations are directed against accused Nos.1 to 3. The overt acts leading to the commission of the offence are sought to be established through the evidence which clinchingly incriminates accused Nos.1 to 3'. Further, the bail petition filed by 8 the petitioner herein in Crl.P.No.4772/2017 came to be rejected by this Court vide order dated 7.8.2017 observing that, trial can be expedited and after examination of the eyewitnesses and recording their evidence.
8. Coming to the other merits of the case, though the FIR came to be registered against unknown persons, but in the complaint there are details about the assailants like their facial features, their complexion and the dress they worn. The complainant may not be knowing the name of assailants and that may be the reason for registering the FIR against unknown persons. Therefore, when there are two eyewitnesses C.Ws.2 and 3 and in their statement they have clearly stated about facial features and all details regarding identification of the accused persons, in my clear opinion, even the test identification parade was also not necessary. The 9 learned counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court. I have perused the grounds, circumstances and the factual story in the said reported decision. The same cannot be made applicable to the present case since the facts of the present case is entirely different. The prosecution has placed prima facie material as against the present petitioner regarding his involvement in committing the alleged offences. In view of the above material and also in view of the earlier order of rejection of the bail petition, I am of the opinion that petitioner is not entitled for grant of bail.
Hence, petition is rejected.
Sd/-
JUDGE bkp