Karnataka High Court
Shri Kutubuddin S/O Allabax Bepari vs The State Of Karnataka on 19 October, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 102403 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102403 OF 2022
BETWEEN:
SHRI KUTUBUDDIN S/O ALLABAX BEPARI
AGE. 36 YRS, OCC. BUSINESS,
R/O. H.NO. 1383/2, BAHER GALLI,
KHANAPUR,
TAL. KHANAPUR AND DIST BELAGAVI
...PETITIONER
(BY SRI. VISHWANATH BADIGER.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, THROUGH KHANAPUR P S
...RESPONDENT
(BY SRI. PRASHANTH V. MOGALI, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C
SEEKING TO ALLOW THIS PETITION AND ENLARGE THE
PETITIONER/ACCUSED NO.4 ON BAIL IN S.C.NO.07/2022 (CRIME
NO.220/2021 REGISTERED BY KHANAPUR POLICE STATION),
PENDING ON THE FILE OF VIII ADDL. DIST. AND SESSIONS
JUDGE, BELAGAVI FOR THE OFFENCE PUNISHABLE U/SEC. 302,
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CRL.P No. 102403 of 2022
201, 120(B), 341, 364, 368, 388, R/W 149 OF IPC AND SEC. 27
OF INDIAN ARMS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by accused No.4 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.220/2021 of Khanapur Police Station registered for the offences punishable under Sections 120B, 341, 364, 388, 302 and 201 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 27 of the Arms Act pending in S.C. No.7/2022 on the file of the learned VIII Additional District and Sessions Judge, Belagavi.
2. The case of the prosecution is that, one Smt.Nazeema, daughter of Mohammed Shaikh of Khanapur, residing at Belagavi, has filed complaint stating that, she is residing along with her son -3- CRL.P No. 102403 of 2022 Arbaz(deceased) in a rented house at Maruti Nagar, Khanapur and her son was having love affair with one Shweta, who was residing near her house since one year. The family members of Shweta started giving trouble to Arbaz after knowing of their love affair and due to which, the complainant shifted to Belagavi and started residing at Azam Nagar. It is further stated that, on 26.09.2021, the family members of Shweta called the complainant and her son to Khanapur, at that time, Maharaj, Birje and father of Shweta were present and they threatened the son of the complainant stating that he has to end his love affair with Shweta stating that they belong to different communities and told to Arbaz to delete the photos of Shweta from his mobile and destroyed his SIM card and told him not to contact Shweta. The complainant and the deceased agreed and came back to Belagavi and Arbaz started using new SIM card. It is further stated that, on 28.09.2021, the complainant went to Goa to meet -4- CRL.P No. 102403 of 2022 her relative and Arbaz was at Belagavi while coming back from Goa, she had spoken to her son Arbaz. It is further stated that when the complainant came back to home at 7:00pm, Arbaz was not in the house and she made phone call to him but he did not receive. At about 9:00pm, the complainant received a phone call from a Railway employee through her son's phone and informed her that dead body is lying on railway track at Khanapur and this phone was lying beside his body. Then the complainant along with her relatives went to the spot at 10:30pm and identified the dead body as of her son's and his legs were cut and neck and head were separated and body parts were lying. The complainant suspected that the father of Shweta and Maharaj have killed and thrown the dead body with a view to destroy the evidence. The said complaint came to be registered in Belagavi Railway Police Station Crime No.29/2021 against the father of Shweta (accused No.1) and accused Nos.3 and 10 for offence punishable under -5- CRL.P No. 102403 of 2022 Sections 201 and 302 read with Section 34 of IPC. Thereafter, the complaint was transferred to the Khanapur Police Station and registered in Crime No.220/2021 for the aforesaid offences. The Khanapur Police arrested the petitioner/accused No.4 on 08.10.2021 and he is in judicial custody. After completing investigation, the Investigating Officer has filed charge sheet and the case is pending in SC No.7/2022. The petitioner/accused No.4 filed Crl.Misc.209/2022 seeking bail and the same came to be rejected by the learned VIII Additional District and Sessions Judge, Belagavi, by order dated 28.02.2022. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent- State.
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4. The learned counsel for the petitioner would contend there are no eyewitnesses to the incident and the case of the prosecution is based on circumstantial evidence. The name of this petitioner is not mentioned as accused in the complaint and FIR. The petitioner has been implicated based on the voluntary statement of accused No.3. As charge sheet is filed, the petitioner is not required for custodial interrogation. The petitioner is suffering from Diabetes Mellitus with HTN(DM2) and he requires consultation with Diabetalogist which is not available in BIMS, Belagavi. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader would contend that the voluntary statement of this petitioner has been recorded wherein he has specifically stated about his involvement in the murder of deceased Arbaz. There is recovery of Koyta, motorcycle at the instance of this petitioner/accused No.4 under mahazar. The -7- CRL.P No. 102403 of 2022 statement of Shweta has been recorded under Section 164 of Cr.P.C. wherein she has stated that, 2 Muslims came to her house along with accused No.3. The D octor, who conducted postmortem examination over the dead body of the deceased has noted injuries stating that injury Nos.4 and 8 are ante mortem in nature and other injuries are ante mortem/peri mortem in nature and the cause of death is due to shock and hemorrhage as a result of multiple injuries sustained. The Doctor, who conducted postmortem examination, has examined the 4 weapons seized at the instance of the accused and has opined that, they can cause the injuries noted in the postmortem report and death of the deceased is due to stab injuries. The charge sheet material show prima facie case against the petitioner for the offences alleged against him. The offences committed by the petitioner and other accused is a brutal murder of the deceased Arbaz and it is punishable with death or imprisonment for life. If -8- CRL.P No. 102403 of 2022 the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, he prayed to reject the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records.
7. The deceased Arbaz was done to homicidal death after decapitating the head with deadly weapons like choori, koyta etc. His body was found on the railway track near Khanapur. The postmortem report reveals that, it is a homicidal death and head was decapitated. Thereafter, the accused thrown the dead body on the railway track to project it as it was a railway accident. Investigation papers reveal that the daughter of accused Nos.1 and 2 namely Shweta had developed love affair with deceased Arbaz. The parents warned her to stop loving him and in spite of the same, she had continued to contact him -9- CRL.P No. 102403 of 2022 physically and over phone. Therefore, accused Nos.1 and 2 decided to send their daughter Shweta-CW-47 to the house of sister of accused No.2. In the house of sister of accused No.2, Shweta again continued to talk with the deceased Arbaz over mobile phones of neighbours. Same came to the knowledge of accused No.8 and his mother. Investigation papers also reveal that accused Nos.1 and 2 proposed the marriage of CW-47-Shweta with one Manjunath, who is a software engineer. Thereafter, also CW-47 continued to talk with the deceased and this matter was brought to the notice of the petitioner/accused No.4, who was also belonging to Mohammedan community and he stated to have warned the deceased stating that they are from different community and in spite of the same, the deceased continued his love affair with CW-47. The deceased in spite of warning by the accused continued his contact with CW-47-Shweta. Therefore, accused Nos.1 and 2 conspired with accused Nos.8 and 9 and
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CRL.P No. 102403 of 2022 accused Nos.1 and 2 stated that they are ready to give supari of Rs.5,00,000/- to accused No.3 for committing murder of Arbaz. Accused No.3 received a sum of Rs.60,000/- as advance. Thereafter, they planned with accused No.3 and this petitioner/accused No.4 made a call to the deceased for settling the issue. The deceased was called and accused No.3 told the deceased to pay Rs.60,000/- in the form of fine to Srirama Sena and they paid Rs.7,000/- to the deceased which was given by CW- 47-Shweta. On 28.09.2021 in furtherance of conspiracy accused Nos.3, 5 to 7 and 10, this petitioner/accused No.4 abducted the deceased in omni car and they committed brutal murder of deceased Arbaz. The voluntary statement of this petitioners/accused No.4 specifically state his overt acts of assaulting the deceased with choori and koyta on the neck and leg of the deceased. Clothes, koyta and choori have been recovered at the instance of accused Nos.4, 6 and 7 under mahazar
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CRL.P No. 102403 of 2022 and there is recovery of koyta and motor vehicle at the instance of accused No.5 under mahazar. The said seized koyta, choori were sent to the D octor who has opined that, they can cause the injuries noted in the postmortem report. The deceased had sustained severe injuries. Head was decapitated and leg were amputed. The Doctor, who conducted postmortem examination over the dead body of the deceased has opined that the cause of death is due to shock and hemorrhage as a result of multiple injuries sustained. Charge sheet material show prima facie case against the petitioner for the offences alleged against him. The offences alleged against the petitioner are punishable with death or imprisonment for life. If the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses. Merely because the accused is suffering from diabetes and he requires consultation of diabetalogist, itself is not a ground for grant of bail, as the offence alleged against him
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CRL.P No. 102403 of 2022 is punishable with death or imprisonment for life. The petitioner has not made out any ground for grant of bail.
Accordingly the criminal petition is dismissed.
Sd/-
JUDGE kmv