Karnataka High Court
Sharuk Alias Mahaboobali S/O ... vs The State Of Karnataka on 6 July, 2021
Author: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06 T H DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100131 OF 2021
BETWEEN
SHARUK @ MAHABOOBA LI
S/O: SHABBIR GUTTI,
AGE. 28 YEARS ,
OCC. PRIVATE SERVICE,
R/O. BIDNALNEELGUNDI RESIDENCY ,
HUBBALLI, DIST: DHARWAD.
...A PPELLANT
(BY SRI.SHIVA PRA SAD.S.PATIL, ADV OCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH HUBBA LLI SUB- URBAN POLICE
R/BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BENCH DHARWAD .
2. SRI. KRISHNA S/O: BASAPPA KADEMANI
AGE. 43 YEARS ,
OCC. PEST CONTROLLER,
R/O. CHAMUND ES HWARI NAGAR,
1 S T CROSS,
NEAR CHAMUND ES HWARI TEMPLE,
HUBBALLI-580032
...RESPONDENTS
(BY SRI.RAMESH B. CHIGARI , HCGP FOR R1)
(R-2-SERVED & UN REPRES ENTED)
2
THIS CRIMINAL A PPEAL IS FILED U/S 14-A(2) OF
THE SC/ST (P.A) ACT, 1989, PRAYING TO SET ASIDE
THE ORDER DAT ED 04.05.2021 PASSED BY THE
LEARNED II ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD IN SPL.SC/ST NO.4/ 2021 AND THE APPEAL
MAY PLEASE BE ALLOWED AND THE PETITIONER MAY
BE RELEAS ED ON BAIL, IN HUBLI SUB-URBAN P.S .
CRIME NO.55/ 2020 (SPL.SC/ST CC NO.4/2021
PENDING ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS AND SPL. JUD GE, DHARWAD), FOR THE
OFFENCES PUNIS HABLE UNDER SECTIONS 143, 147,
148, 302 R/W SEC.149 OF IPC AND SEC.3( 2)(v) OF S C
AND ST (PREVENTI ON OF ATROCITIES) ACT, 1989.
THIS CRIMINAL A PPEAL COMING ON FOR ORDERS
THIS DAY, T HE COURT DELIVERED THE F OLLOWING:
JUDGMENT
This is an appeal filed by
appellant/accused No.5 challenging the order
dated 04.05.2021 passed in
Crl.Misc.No.95/2021 by III Addl. District and
Sessions & Spl. Judge, Dharwad, where under
the bail application of the appellant/accused
No.5 came to be rejected. The said application
has been filed seeking bail in Crime
No.55/2020 of Hubballi Sub-urban Police
Station for the offence punishable under
Sections 143, 147, 148, 302 r/w Section 149 of
the Indian Penal Code (hereinafter referred to
as the 'IPC', for brevity) and Section 3(2)(v) of
Scheduled Castes and the Scheduled
Tribes(Prevention of Atrocities) Act,1989
(hereinafter referred to as the 'SC/ST (POA)
Act', for brevity).
2. The notice to respondent No.2 has been
served and he remained unrepresented.
3. The case of the prosecution is that one
Krishna Kademani, the father of the deceased
Lokesh has filed the complaint. In the
complaint, it is alleged that his son Lokesh in
earlier point of time used to tell him that his
friends 1) Sagar Dabade-accused No.1, 2)
Siddu Joladadagi-accused No.2 3) Kiran
Honnalli-accused No.3 4) Rajat Naik-accused
No.4 and Sharukh Gutti-accused No.5, often
and often threatening him to take his life. That
on 28.07.2020 at about 8.30 p.m. when the
complainant was sitting in his home, his son's
friend Rajesh S/o Basavaraj Ambiger/CW.6
came with blood stained clothes and on enquiry
Rajesh reveled that at about 7.30 p.m. himself
and deceased Lokesh were standing with other
friends near Gynan Bharati School. At that
point of time accused No.1/Sagar Dabade with
two other persons came on their bikes and
taken out lethal weapons. On seeing them
deceased Lokesh started running towards
Krishna Kalyan Mantapa. They followed
Lokesh. Rajesh too followed them and at that
time, beside Krishna Kalyan Mantapa they
stabbed Lokesh. Rajesh started screaming and
tried to rescue Lokesh. They threatened to
finish him, if he comes in their way. Hence, he
stepped back and started screaming loudly for
help. Nearby house people started gathering
and as such they fled away from the spot with
weapons, the other two persons standing at a
distance. Since, blood was oozing from chest
and stomach of Lokesh, he stopped an auto
and took Lokesh to KIMS. However, the doctor
declared him dead. Complainant and Rajesh
visited the KIMS Hospital and thereafter,
lodged complaint against five persons in
Hubballi Sub-urban Police Station in Crime
No.55/2020 for the aforesaid offences. The
Investigating Officer has filed the charge sheet
against seven persons including this appellant
arraying him as accused No.5 for the aforesaid
offences. This appellant-accused No.5 was
shown as absconding in the charge sheet. The
Special Court was pleased to order for split up
charge sheet to be submitted against the
appellant-accused No.5, which came to be
numbered as Spl.SC/ST CC No.4/2021. The
appellant-accused No.5 was arrested on
11.03.2021 and he was remanded to judicial
custody. The appellant filed bail application
before the II Addl. District and Sessions & Spl
Judge, Dharwad and the same came to be
rejected by order dated 04.05.2021. The
appellant/accused No.5 has challenged the said
order in the present appeal.
4. Heard the learned counsel appearing for
appellant and learned High Court Government
Pleader for respondent No.1/State.
5. It is the submission of the learned counsel
for the appellant/accused No.5 that the
appellant is innocent, he has not committed
any offence as alleged and he has been falsely
implicated. The complainant has named only
three accused persons and the FIR came to be
registered against 5 persons. He contends that
the complainant is the father of the deceased
and is not an eye witness to the incident. In
the charge sheet, total 7 persons are named as
accused and mentioned that accused No.4 is
child in conflict with law. It is his further
submission that even though there are six eye
witnesses (CWs.6, 10 to 15), they have not
specifically stated who assaulted with what
weapon and at what part of the body of the
deceased Lokesh. The doctor who conducted
post mortem report has noted six external
injuries and all are stab injuries. He further
contends that the incident has not taken place
because the deceased is a person belonging to
SC/ST. It is his further submission that
accused No.1 has been granted bail in
Crl.A.No.100117/2021 and accused No.6 has
been granted bail in Criminal Petition
No.101096/2020 by order dated 29.09.2020
and therefore, this appellant /accused No.5 is
also entitled for grant of bail on the ground of
parity. He contends that Special Court has not
taken into consideration all these aspects and
therefore the impugned order requires to be
set aside and the appellant-accused No.5 is
entitled for grant of bail. With this he prayed
to allow the appeal.
6. Per contra, the learned HCGP submits that
the offence alleged against the appellant and
other accused is a heinous offence punishable
with death or imprisonment for life. There are
seven eye witnesses namely CWs.6, 10 to 15
who have witnessed the incident and they have
specifically stated the role of the accused. The
doctor who conducted post mortem
examination has opined that death is due to
injury sustained. The weapon and the bikes
have been recovered at the instance of accused
No.1. If the appellant is released on bail, he
will tamper prosecution witnesses and flee
from justice. The trial court has rightly
considered all these aspects and rightly
rejected the bail application of the appellant.
Therefore, the impugned order does not
requires to be interfered with.
7. Having regard to the submission made by
the learned counsel for the appellant and the
learned High Court Government Pleader, I have
carefully and cautiously perused the charge
sheet papers and the impugned order.
8. The accusation leveled against the
appellant/accused No.5 is that he along with
six others have assaulted with chopper, knife,
long chopper and cricket stump on his chest,
left hand back side and caused his death.
CWs.6, 10 to 15 are eye witnesses to the
incident. Even though, the said eye witnesses
have stated subsequently the presence of
accused Nos.1 to 7, they have not specific in
their statement with regard to which of the
accused was holding which weapon and which
of the accused assaulted on which part of the
body of the deceased. The appellant is in
judicial custody since 11.03.2021. The
appellant is aged 28 years and if he continued
in jail, he will come in contact with the
hardened criminals. There are no criminal
antecedents of the appellant/accused No.5.
The accused No.1 has been granted bail by this
Court in Criminal Appeal No.100117/2021 by
judgment dated 28.06.2021 and the present
appellant-accused No.5 is also similarly placed
to that of accused No.1 and hence he is
entitled for grant of bail on the ground of
parity. The Special court has not considered
all these aspects. Therefore, impugned order
rejecting the bail application of
appellant/accused No.5 requires to be set aside
and appellant/accused No.5 requires to be
released on bail. The main objection of the
prosecution is that if, the appellant is granted
with bail, he will tamper prosecution witness,
the said objection may be set right by imposing
some stringent conditions.
9. In the facts and circumstances of the case
and submission of the counsel, this Court is of
the view that there are valid grounds for
setting aside the impugned order and granting
bail subject to terms and conditions. Hence, I
proceed to pass the following:
ORDER
The appeal is allowed.
The impugned order dated 04.05.2021
passed in Spl.SC/ST CC No.4/2021 by the II
Addl. District and Sessions and Spl. Judge,
Dharwad is set aside.
The bail application filed by
appellant/accused No.5 under Section 439 of
Cr.P.C. is allowed. Consequently, the appellant
/ accused No.5 shall be released on bail in
Crime No.55/2020(now Spl.SC/ST CC
No.04/2021) of Hubballi Sub-Urban Police
Station subject to the following conditions:
i) The appellant/accused No.5 shall
execute a personal bond for a sum of
Rs.1,00,000/- (Rupees one lakh only)
each with one surety for the like sum
to the satisfaction of the
jurisdictional Court.
ii) The appellant/accused No.5 shall not
indulge in tampering the prosecution
witnesses.
iii) The appellant/accused No.5 shall
attend the Court on all dates of
hearing unless exempted and co-
operate in speedy disposal of the
case.
iv) The appellant/accused No.5 shall
mark his attendance in jurisdictional
police station on first Sunday of
every month till disposal of the case
registered against him.
Sd/-
JUDGE
RM
