Sayyad Ali vs State Of Karnataka & Others

Shivashankar Amarannavar, J

Accused No.3 has filed this appeal challenging the order dated 01.07.2022 passed in Spl.SC.ST No.12/2018 by the learned II Additional District and Sessions and Special Judge, Dharwad, (hereinafter referred to as the ‘Sessions & Spl. Judge’, for brevity) wherein the bail application of the appellant came to be rejected. The appellant had sought bail in Keshwapur Police Station Crime No.7/2018 for the offences punishable under Section 143, 147, 148, 120B, 109, 302, 201 read with Section 149 of The Indian Penal Code (hereinafter referred to as the ‘IPC’, for brevity), Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and Section 25(1A) of the Arms Act.

The case of the prosecution is that, one Sankirtha son of Kumareshwar Pillai (respondent No.2) has filed complaint stating that on 25.01.2018 at about 08:30 p.m., the accused persons formed an unlawful assembly and in furtherance of their common object, the accused Nos.8 and 9 made conspiracy with accused Nos.1 and 4 to murder one Kumareshwar Pillai, who belonged to SC/ST community and accused No.10 financed to purchase the car, accused No.11 gave his vehicle to watch the said Kumareshwar Pillai, and accused No.4 without having valid license handed over the pistol and bullets to accused Nos.5 to 7 to murder the said Kumareshwar Pillai. Thereafter, accused Nos.1 to 3 and 5 to 7 made conspiracy for the murder of said Kumareshwar Pillai and on 25.01.2018 at about 08:30 p.m., when the said Kumareshwar Pillai was going in his motor cycle, the above said accused persons drove their car behind the said motor cycle and dashed to the motor cycle and made him to fall. Thereafterr, accused No.1 assaulted with axe, and accused No.2, 3, 5 and 6 assaulted with talwar and accused No.7 assaulted with knife over head, shoulder and other parts of the body of the said Kumareshwar Pillai with an intention to murder and thereby committed the murder of said Kumareshwar Pillai. Then the accused persons with an intention to cause disappearance of the evidence of the offence thrown the said axe, talwar, knife in Thungabhadra River near Harihara and Benni channel near Navalagunda, parked the car in a bush situated at National Layout, Mantur Road, the scooter was parked at Benni Channel and 3 pistols and 8 bullets were kept in a Masjid, which was under construction near National Layout, Mantur road. The complaint came to be registered in Crime No.7/2018 on 26.01.2018 for the offences punishable under Sections 143, 147, 148, 120(B), 109, 302, 201 r/w 149 of IPC and Section 3(2)(v) of SC/ST Act and under Section 25(1)(A) of Arms’ Act. The appellant/accused No.3 has filed this bail application in Spl.SC & ST No.12/2018 and the same came to be rejected by the learned II Additional District and Sessions and Special Judge, Dharwad, by order dated 01.07.2022. The appellant/accused No.3 has challenged the said order in the present appeal.

Heard the arguments of the learned senior counsel appearing for the counsel for the appellant/accused No.3 and the learned High Court Government Pleader for respondent No.1-State. In spite of service of notice to respondent No.2, he has remained absent and unrepresented.

Learned senior counsel appearing for the appellant would contend that the motive for the alleged offence is that, the deceased was making efforts to see that the accused in earlier case be convicted and also made efforts that the bail granted to the accused be cancelled. The accusation against the appellant/accused No.3 is that, he along with 3 others assaulted with talwar on the deceased Kumareshwar Pillai. In the charge sheet 80 witnesses have been cited and the prosecution has already examined 32 witnesses and some of the witnesses and some material witnesses have not supported the case of the prosecution and they are PWs.12, 13, 14 and 16. It is his further submission that, evidence has been commenced on 21.01.2021 but, as on today, only 32 witnesses are examined and there is delay in trial of the case. At present there are no material against the appellant/accused No.3. Earlier this appellant/accused No.3 had filed Crl.P.No.101289/2019 seeking bail and the same came to be rejected by this Court by order dated 20.11.2019. In this successive petition, the appellant/accused No.3 is seeking bail on the ground that the witnesses examined by the prosecution have not supported the case of the prosecution and they have turned hostile and also the bail petition came to be rejected only based on the statement of the witnesses. Without considering all these aspects, the learned Sessions and Spl. Judge has rejected the bail petition of the appellant/accused No.3 which requires interference by this Court. With this, he prayed to allow the appeal.

Per contra, learned High Court Government Pleader would contend that the motive for the murder of the deceased Kumareshwar Pillai is to destroy the evidence of earlier prosecution case in Spl.SC.ST No.25/2016 wherein murder of Vinay Pillai, son of the deceased Kumareshwar Pillai, had taken place. The deceased was making efforts to see that the accused in the earlier case be convicted in the said case. The talwar, which is stated to have been used by the appellant/accused No.3 to assault the deceased, has been recovered at his instance under mahazar. The postmortem report reveal 32 injuries over the dead body of the deceased and the Doctor opined that, death is due to hemorrhage and shock as a result of the injuries sustained. The injuries noted in the postmortem report corresponds to the overt act alleged against the appellant and other accused. The appeal preferred by accused No.6 challenging rejection of his bail petition in Crl.A.No.100149/2021 came to be rejected by this Court by judgment dated 17.11.2021 and this appellant/accused No.3 is also placed similar to that of accused No.6. It is his further submission that merely because some of the witnesses have turned hostile is not a ground for grant of bail. The offence alleged against the appellant are heinous offences punishable with death or imprisonment for life. The Sessions and Spl. Court considering all these aspects has rightly rejected the bail application of the appellant/accused No.3. With this, he prayed to dismiss the appeal.

Having heard the submission of the learned senior counsel for the appellant and the learned High Court Government Pleader, this Court has gone through the charge sheet records and the impugned order.

The accusation against the appellant/accused No.3 and other accused is that, as the deceased Kumareshwar Pillai was serious in prosecuting the earlier case, wherein murder of his son Vinay Pillai had taken place, therefore the appellant and other accused have killed him to destroy the evidence of the earlier case. The deceased had seriously fought and made efforts for cancellation of bail of the accused in Spl.SC.ST No.25/2016. The talwar stated to have been used by the appellant/accused No.3 has been recovered at his instance under mahazar. The Doctor, who conducted postmortem examination, has noted that there were 32 injures over the dead body of the deceased and cause of death is due to hemorrhage and shock as a result of injuries sustained. On perusal of the entire charge sheet material, there is prima facie case against the appellant/accused No.3 for the offense alleged against him. Merely because some of the prosecution witnesses have not supported the case of the prosecution and have turned hostile, is not a ground for grant of bail. The prosecution has to examine the remaining witnesses. If the appellant/accused No.3 is granted bail, there is threat to the complainant and other prosecution witnesses. Considering all these aspects, the learned Sessions and Spl. Judge has rightly rejected the bail application of the appellant/accused No.3. There are no grounds to interfere with the impugned order.

In the result, the following order:

The Criminal Appeal is dismissed.