Tabrez Pasha @ Babu vs State

Budihal R.B., J.—This petition is filed by petitioner-accused No. 3 u/s 439 of Cr.P.C. seeking his release on bail of the offences punishable under Sections 143, 144, 147, 148, 302 r/w Section 149 of IPC registered in respondent-police station Crime No. 311/2013.

Heard the arguments of the learned counsel appearing for the petitioner-accused No. 3 and also the learned Government Pleader for the respondent-State.

Learned counsel for the petitioner during the course of his arguments submitted that at the first instance, on the basis of the complaint of police constable who seems to be the eyewitness to the incident, FIR was registered against three unknown persons. At the first instance, even as per the case of the prosecution, some unknown persons have assaulted the deceased by the side of the road near the mosque and caused him bleeding injuries and after seeing the complainant, the assailants ran away along with the weapons they were holding. During investigation, the prosecution has improved its case and arrayed totally eight accused persons in the case, which itself creates doubt regarding the case of the prosecution. He further submitted that though during the course of investigation the police have seized the autorickshaw said to have been used by the accused persons to come to the spot, but looking to the averments in the complaint there is no reference with regard to the autorickshaw at the spot. He has submitted that the present petitioner is totally innocent and no material is collected by the prosecution against the present petitioner to show his involvement in the commission of the alleged offences and that now the investigation of the case is already completed and chargesheet has been filed by the prosecution. The petitioner has to take care of his wife and children. He is the only male member in the family. Hence, by imposing any conditions, petitioner may be admitted to bail.

As against this, learned Government Pleader during the course of his arguments submitted that there are eyewitnesses to the incident and they have clearly stated in their statement about the active participation of the present petitioner in the commission of the alleged offences. He has also submitted that as per the statement of eyewitnesses C.W. 18 Roshan S/o. Abdul so also, C.W. 19-Revanna, S/o. Bylappa, they have personally witnessed the incident so also the participation of the petitioner in the commission of the alleged offences. Even the statement of owner of the autorickshaw has been recorded by the Investigating Officer during investigation. He has also stated to the effect that the present petitioner took the auto on hire basis on that particular day and it was seized by the police on the voluntary statement of the present petitioner. He has submitted that at the instance of the present petitioner Investigating Officer has recovered autorickshaw as well as one long said to have been used in the commission of the offences. Hence, he has submitted that there is a prima facie material placed by the prosecution and as such, petitioner is not entitled to be granted with bail.

I have perused the averments made in the bail petition, FIR, complaint, order passed by the lower Court on the bail application and other charge sheet material placed on record along with the petition.

Perusing the complaint it is no doubt true that at the first instance, the complainant lodged the complaint against three unknown persons stating that they have assaulted the deceased with deadly weapons and after seeing the complainant they ran away from that place. But during investigation the material collected by the Investigating Officer goes to show that C.W. 18, who is said to be the eyewitness to the incident, in his statement has stated about the participation of the present petitioner also along with other accused persons wherein he has mentioned the names of the assailants. As per the statement of C.W. 19-Revanna he has also stated that he has personally witnessed the incident. Though he has not named the assailants, but he has mentioned that if the persons are again shown, he will identify the assailants and the materials on record also shows that subsequently, he has identified the present petitioner in the police station. Further, on the voluntary statement said to have been recorded by the Investigating Officer during investigation of the present petitioner, an autorickshaw and a long has been recovered in the presence of panch witnesses. The medical opinion also goes to show that death is due to the head injuries sustained by the deceased.

Looking to all these materials on record, I am of the opinion that prosecution has placed prima facie material to show the involvement of the present petitioner in the commission of the alleged offences. There are reasonable grounds to believe that petitioner has committed the offences punishable with death or imprisonment for life. Therefore, it is not a fit case to exercise the discretion in favour of the petitioner.

Accordingly, petition is rejected.