Irfan vs The State of Karnataka

K.N. Phaneendra, J.

The present petitioner who is arrayed as accused No. 19 in C.C. No. 450/2015 on the file of J.M.F.C., Vijayapur for the offences punishable U/Sec. 143, 147, 148, 302, 323, 120(B), 109, 504, 506 R/w Sec.149 of Indian Penal Code has approached this Court for grant of regular bail U/Sec.439 of Cr.P.C.

The brief factual matrix that emanate from the records as could be seen from the charge sheet papers that the complainant one Mohedden Pasha lodged first information report stating that he is the resident of Havelli Galli, Bijapur. In the year 2011 there was election of youth congress, Bijapur, in that election the grand son of the complainant by name Moin Anees has contested against one Mohammed Asif as rival contestant. In the said election, poling booth was fixed at Darbar High School, at that time Mohammed Asif and his friends and the grand son of the complainant Moheddenpasha and Moin Anees were present and in fact the said Mohammed Asif has given life threat and in fact the said person had shot with a revolver at Moin Anees, in fact the said Moin Anees escaped on that particular time. In that regard deceased has lodged a complaint against Mohammed Asif and others. Having this ill-will the said Mohammed Asif and others have threatened said Mohammed Anees and Syed Fayazuddin with dire consequences of giving supan to kill them. In this regard it is alleged that on 07-11-2014 at about 10.30 p.m., when the complainant came near the house of one Bandan, he observed one Muddasar Abdul Samad Qureshi, Altaf, Rajahmed Managuli and others were talking near the bus-stand. At that time they observed the complainant''s sisters son Syed Fayazuddin S/o. Mahaboobquadri Mushrif came in his motor cycle and he was talking with his friends near Datri Masjid on a road, at that time two cars came near them and from the said cars about nine persons named in the complaint, got down and three - four persons caught hold said Syed Fayazuddin and surrounded him and in fact some of the accused persons have fired at the instance of said Mohammed Asif towards Syed Fayazuddin, in fact Syed Fayazuddin went near the house of Bandari and fell down due to Gun shot injuries, all the accused persons have also assaulted with their hands and legs and some persons also threatening the people, public at large so as to enable the persons who were assaulting and firing towards the injured. On these allegations a complaint came to be lodged and the police have registered the case.

Learned counsel appearing for petitioner Sri. Diwakar vehemently contended that the motive attributed to the accused persons and the to the incident taken place is not at all based on materials on record. He contended that the deceased was neither an accused, nor complainant or a witness in Crime No. 179/2011 on the file of Golgumbaz police station, Vijayapur, which is the incident made basis to create a motive for this case. Secondly he contended that the name of the petitioner is not at all there in the first information report, but subsequently his name was surfaced in the further statement of the complainant and even in the further statement of the complainant and the statement of the so called eyewitnesses C.W.s 11 to 19, if they are perused meticulously there is no role attributed to this man who has caused any injuries to the deceased or used chopper for the purpose of committing any offence. Further added to that, he also contends that post mortem report does not disclose any injury caused by any chopper on the deceased and also he contends that no chopper has been recovered or any weapon recovered at the instance of this petitioner. It is the contention that the complainant and the eyewitnesses time and again improved the case of the prosecution in order to implicate as many rival persons as possible into the crime. Therefore looking to the above said facts and circumstances when there is no specific allegation except that he was present and abated the commission of offence, directing one of the accused to shot the deceased, nothing is there on record to come to a definite conclusion that he also participated in the crime with any object or intention to do away with the life of the deceased. He further contended that the petitioner is a sole bread earning person of his family, he is ready and willing to abide by any of the conditions that may be imposed by this Court, hence he pleaded for enlargement of the petitioner.

The learned counsel Sri. R.S. Lagali filed an application seeking permission to assist learned Addl. S.P.P. The application is allowed and he is permitted to assist the learned Addl. S.P.P.

Learned Addl. State Public Prosecutor strenuously contended that this Court considering facts of the case while disposing the bail petition of one Suhail and Haji Mastan who are arrayed as accused Nos. 17 and 18 as per the charge sheet who stand on the same footing as that of this petitioner has already rejected the petition of those accused persons considering their overt acts and their participation in the commission of offence. Therefore on the ground of parity, this petition is also liable to be dismissed. He further contends that immediately after the first information report on the same day without any further delay the police have recorded the further statement of the complainant and the eyewitnesses who have categorically stated about the participation of this petitioner and that his specific role in the commission of the offence. Therefore at this stage, the Court cannot bifurcate role of this petitioner from that of the other accused person who were released, some of the other accused persons were released on bail, because their presence was not there on the spot and allegations against them was only conspiracy and abatement absenting themselves in the scene of offence. Though there is no recovery at the instance of the accused. Nevertheless the statement of the witnesses cannot be brushed aside at this stage. Therefore he pleaded for rejection of this petition.

I have carefully perused the entire charge sheet papers, of-course there is some force in the argument of the learned counsel to the extent the petitioner''s name is not appearing in the first information report and that no recovery was made at the instance of this petitioner and also the deceased was not a party in any manner so far as the previous alleged proceedings are concerned which was made basis for the motive in this case.

While dealing with the bail matters, the Court has to specifically look into the role of the accused persons first and thereafter if it is not satisfied that the role of the accused is not specifically mentioned or his overt acts was not at all there, then the Court has to look into the other circumstances whether he is still entitled to be enlarged on bail or his bail has to be rejected. Therefore so far as the motive is concerned and also the name of the accused not mentioned in the first information report is concerned, does not play dominant role so far as this case is concerned. When the consistent statement of the witnesses C.W.s 11 to 19 including the subsequent statement of the complainant who have specifically implicated the petitioner into the crime, the Court has see what exactly the role attributed so far, as this petitioner is concerned. If there is prima-facie participation of this person in commission of such offence is available, then the Court has to see whether he is entitled to be enlarged on bail or not. The subsequent statement, which is recorded on the same day and the statement of CWs. 11 to 19 discloses some of the accused persons were holding pistol and revolvers and shot at the deceased who died at the spot itself It is the statement of the witnesses that the accused Nos. 9 to 20 including this petitioner were all holding choppers in their hands and they were hurling that they would finish of Fayaz on that particular day and they gathered surrounding the deceased encircling him in order to do away with his life. In this context some of the accused persons shot at the deceased, he sustained severe injuries. It is specifically alleged that this accused/petitioner alongwith other accused persons holding chopper in his hand, directed another accused by name Inamdar telling that the deceased is not yet dead to shoot at the deceased on the head of the deceased. On the instructions given by this petitioner, the said Inamdar shot near the eye of the deceased and the blood spurted out from the said portion and thereafter all the accused persons declaring that the deceased is dead went away. It is also stated by the witnesses that, all the accused persons who were holding chopper in their hands were also threatening the public at large not to come near the scene of offence enabling the other accused persons to do away with the life of Syed Fayazuddin (deceased).

Looking to the above said nature of the allegations and the role attributed to the petitioner, in my opinion the petitioner''s role is that of accused Nos. 17 and 18. Therefore when this Court has taken a specific view that those accused were also present at the spot and done the same thing, in my opinion on the ground of parity this petitioner is also not entitled to be enlarged on bail. Hence I don''t want to express any difference of opinion compared to the role attributed to accused Nos. 17 and 18. In such eventuality the petition has to fail and the same is liable to be dismissed.

Accordingly dismissed.