At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE R.B. BUDIHAL
For the Petitioner: Younous Ali Khan, Advocate. For the Respondent: K. Nageshwarappa, HCGP.
(Prayer: This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.119/2016 (S.C.No.132/2017) of Commercial Street P.S., Bangalore, for the offence P/U/S 302 read with Section 34 of IPC.)
1. This petition is filed by the petitioners/accused No.4 and 7 under Section 439 of Cr.P.C. seeking their release on bail for the offence punishable under Section 302 r/w Section 34 of IPC registered in respondent - police station Crime No.119/2016.
2. The mother of the dece
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ased is the complainant in this case. She has stated that his younger son Ilias Shareef was in love with one Fathi, for which the brothers of said Fathi were opposing. So they posed life threat that they are going to eliminate him. On 1.10.2016 at 4.00 p.m. the accused persons called the complainant's son Ilias Shareef to Shivajinagar stating that they want to speak to him and on the same day, at about 5.15 p.m. Ilias shareef called to the complainant over phone and informed that at Shivajinagar M.K.street in front of tea stall accused No.1 Nazeem and his supporters have picked up quarrel with him and he was weeping and immediately the phone got disconnected. After some time Imtiyaz, the elder son of the complainant called her and informed that accused No.1 Nazeem and his supporters committed the murder of the younger brother Ilias Shareef and the dead body is in the Bowring hospital. The complainant immediately went to the said hospital and found that her son Ilias Shareef had sustained injury to the head, neck and other parts of the body. On the basis of the said complaint, case was registered initially against accused Nos.1 to 4 and others.
3. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.4 and 7 and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioners during the course of his arguments submitted that so far as the petitioners are concerned, there is no material placed by the prosecution that they are involved in the alleged offence of committing the murder of the deceased. He has submitted that the other accused persons have been already granted bail by the order of this Court and has produced the copy of the bail order granted in respect of accused Nos.8 and 9 so also, in respect of accused No.3. It is his contention that now investigation is completed and charge sheet is also filed. As there is no prima facie material, by imposing reasonable conditions, petitioners may be enlarged on bail.
5. Per contra, learned High Court Government Pleader has opposed the bail application on the ground that the statement of eyewitnesses recorded by the Investigating Officer during investigation clearly shows the overt act done by these two petitioners(accused Nos.4 and 7). Even in the further statement of the complainant allegations are made against the petitioners about their involvement in committing the alleged offence. There is a recovery of the weapon at the instance of these two petitioners. In view of the same, petitioners are 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 in the case.
7. So far as the contents of the complaint is concerned, as it is rightly submitted by the learned counsel for the petitioners herein, their names are not specifically mentioned in the complaint, so also, the FIR registered does not show the names of petitioners herein. However, the learned Government Pleader has submitted that in the police station C.Ws.8 and 9 have identified these two petitioners as the persons involved in committing the alleged offence. Even looking to the statement of C.Ws.8 and 9, the alleged eyewitnesses on the side of the prosecution, they have not specifically stated the names of these two petitioners. But it is the contention of the prosecution that these two witnesses have identified the petitioners in the police station.
8. The further statement of the complainant is recorded on 9.10.2016 i.e., after lapse of 8 days of the incident. In such circumstances and only on the basis of the recovery of the weapon, at this stage, it cannot be said that the petitioners are not entitled to be granted with bail.
9. Petitioners have contended in the petition that they are totally innocent and there is false implication. They have undertaken to abide by any conditions to be imposed by this Court. I have also perused the bail orders passed by this Court in respect of other accused persons in Crl.P.No.3900/2017 dated 28.7.2017 and in Crl.P.No.4330/2017 dated 2.8.2017. Hence, it is a fit case to exercise the discretion in favour of these two petitioners.
10. Accordingly, petition is allowed. Petitioners/accused Nos.4 and 7 are ordered to be released on bail for the offence punishable under Sections 302 r/w Section 34 of IPC registered in respondent - police station Crime No.119/2016, subject to the following conditions:
i. Petitioners shall execute a personal bond for a sum of Rs.1,00,000/- each and furnish one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioners shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioners shall appear before the concerned Court regularly.