Shaik Mohammed Peer and Others vs The State of Karnataka

Budihal R.B., J.—This is the petition filed by the petitioners/accused Nos. 1, 2 and 3 under Section 439 of Cr.P.C. seeking their release on bail for the offences punishable under Sections 302 and 201 read with Section 34 of IPC registered in respondent - police station Crime No. 357/2013.

Heard the arguments of the learned counsel appearing for the petitioners/accused No. 1, 2 and 3 and also the learned HCGP for the respondent-State.

I have perused the averments made in the bail petition, FIR, complaint, order passed by the lower Court on the bail application and also the other materials produced in the case. Looking to the averments made in the complaint, it is stated by the father that his son Imran Pasha, who was working at scrap shop, left the house on 09.06.2013 at 10.00 a.m. and he did not returned back, so inspite of this fact the averments in the complaint goes to show that subsequently, i.e., on 05.08.2013 nearly after two months, complaint was filed by the father about missing of his son. There afterwards, the complainant went to his relatives house in search of his son and he also made the enquiry of the first petitioner on meeting him and first petitioner replied that he has paid Rs. 100/- to his son and thereafter he is not aware where he has gone. Motive as per the prosecution case that the first petitioner and Imran Pasha both were having love affair with CW-17 Jashmine D/o Gaffar, and in that connection there was difference of opinion between the two, so on the basis of this the father ultimately lodged the complaint raising suspicion as against the first petitioner. Materials also go to show that accused persons were arrested on 18.11.2013 and subsequently, the Investigating Officer has recorded the statement of CW-19, who is said to be the alleged eye-witness according to the case of the prosecution. The statement of this CW-19 was recorded on 01.01.2014 i.e., after lapse of seven months, if really, he was the eye-witness, his normal conduct would be either to immediately go to the police station or to the relatives house of the deceased to inform about the incident, which is not done in this case. The case of the prosecution that there was a confessional statement made by the accused as per the statements of CW-34 and CW-35 and the statement of these two witnesses recorded by the Investigating Officer on 12.02.2014 i.e., after lapse of nine months. It is also submitted by the learned counsel for the petitioners during the course of his arguments that even the dead body is not traced but so far as this aspect is concerned, tracing the corpse i.e., dead body of the deceased is not mandate in law, though it may be rule of caution for the Court to appreciate the case. Even if, the dead body is not traced the Court has to see, as to what is the material collected during the investigation to establish the prima facie case against the accused persons. Therefore, considering these materials on record, firstly, the complaint is on the basis of suspicion, that too as against first petitioner and the alleged eye-witness statement is recorded after lapse of seven months. Considering these aspects of the matter and in view of the contentions raised by the present petitioners that they have not involved in the commission of alleged offence and they have been falsely implicated in the case and they have also undertaken to abide by any reasonable conditions to be imposed by this Court and as submitted investigation is completed and charge sheet has been filed in the case, I am of the opinion that it is a fit case to exercise the discretion in favour of the present petitioners and to enlarge them on bail.

Accordingly, petition is allowed. Petitioners/accused Nos. 1, 2 and 3 are ordered to be released on bail for the offence punishable under Sections 302 and 201 read with Section 34 of IPC registered in respondent - police station Crime No. 357/2013, subject to the following conditions:

"i. Each petitioner has to execute a personal bond for Rs. 1,00,000/- and has to furnish one solvent 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 have to appear before the concerned Court regularly."