Rayees Usman @ Usman Raies Ahmed ... vs State Of Karnataka
2022 Latest Caselaw 11398 Kant

            IN THE HIGH COURT OF KARNATAKA

                   KALABURAGI BENCH

        DATED THIS THE 17 TH DAY OF AUGUST, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE P.N.DESAI

           CRIMINAL PETITION NO.200805/2022

BETWEEN:
SRI. RAYEES USMAN @ USMAN RAIES AHMED
S/O: BABUSAHEB SHAIKH
AGE: 53 YEARS OCC: CAUSALITY MEDICAL OFFICER
AT SHRI.B. M. PATIL, MEDICAL COLLEGE
VIJAYAPURA
R/O: ASAR GALLI,
VIJAYAPURA TQ: & DIST: VIJAYAPURA-586 101.

                                             ...PETITIONER
(BY SRI.DIWAKAR. K. SENIOR COUNSEL APPEARING FOR
SRI.ABHISHEK K & SRI.TIPPANNA D.K.,ADVOCATES)

AND:

01.    THE STATE OF KARNATAKA
       BY THE PSI OF GANDHI CHOWK POLICE
       REP. BY STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       AT: KALABURAGI-585 103.

02.    ATIKA UMES W/O LATE MUSTAKIM KUDAGI

03.    SHOHEB MOHAMMED KUDAGI

       BOTH ARE MAJOR
       BOTH R/O: RAJAJI NAGAR, VIJAYAPUR.
                                            ...RESPONDENTS

(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1,
BY SRI.S.R. KADLOOR, ADVOCATE FOR R2 AND R3)
                              2




     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439

OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO

DIRECT   THE   RESPONDENT        POLICE    TO   ENLARGE   THE

PETITIONER ON BAIL IN CRIME NO.27/2022 REGISTERED AT

GANDHI   CHOWK,   VIJAYAPURA      POLICE   STATION,   PENDING

BEFORE THE I ADDITIONAL CIVIL JUDGE AND JMFC-I COURT,

VIJAYAPURA IN C.C.NO.5917/2022 FOR THE ALLEGED OFFENCES

PUNISHABLE UNDER SECTIONS 120 (B), 143, 148 AND 302

READ WITH SECTION 149 OF INDIAN PENAL CODE.


     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS,
THIS DAY, THE COURT PASSED THE FOLOWING.

                        ORDER

This petition is filed under Section 439 of the Code of

Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to

enlarge the petitioner, who is arraigned as accused No.4,

on bail in Crime No.27/2022 of Gandhi Chowk Police

Station, Bijapur, registered for the offences punishable

under Sections 120 (B), 143, 147, 148 and 302 read with

Section 149 of Indian Penal Code, 1860 ('IPC' for short), on

the file of I Additional Civil Judge and JMFC-I Court,

Vijayapura in C.C.No.5917/2022.

02. It is the case of the prosecution that on the

basis of complaint lodged by the brother of deceased the

above said FIR came to be registered. It is alleged that his

brother deceased Mustakim was in love with one Atika

daughter of Rauf Ahmed Shaikh, who is also niece of

petitioner. In this regard Mustakim discussed with his

family members and they have no objections provided the

bride's family members agreed. But the family members of

Atika rejected the proposal. Therefore, the complainant

informed his brother to talk with family members of girl and

then only marry with her. But as the family members of the

girl did not agree for marriage, both the deceased and the

girl went to Bengaluru and married. They have also gone to

Miraj and sought protection from Court at Miraj as the

family members of girl were repeatedly threatening the

deceased to take away his life and they intended to hire

supari killers for that purpose. Even they registered a

missing complainant and also a kidnapping case, but the

said girl who is major gave a statement before the

Magistrate under Section 164 of Cr.P.C. stating that she has

married on her own and she was in love with the deceased.

Therefore, the family members of girl have got ill-will and

grudge towards deceased. Both are living at Vijayapura Koli

Colony.

03. On 15.02.2022 at about 09.30 a.m. the

complainant received a phone call stating that his brother

deceased was killed by causing accident, near Vijayapura

Akashwani Kendra. By that time they were went there, the

injured was taken to Hospital and he was already dead and

they found injuries on his body. In this regard, he lodged

the complaint - first information report.

04. The petitioner is arraigned as accused No.4 in

the FIR. The petitioner is in judicial custody from

30.05.2022. His bail petition came to be rejected by the

Sessions Court. Hence, the petitioner has filed this petition.

05. Heard Sri. Diwakar.K., learned Senior Counsel

for the petitioner and Sri. Gururaj V. Hasilkar, the learned

High Court Government Pleader for the respondent No.1 -

State and Sri. R. S. Kadloor, learned counsel for the

respondents No.2 and 3.

06. Learned Senior counsel for the petitioner

argued that there is no direct or circumstantial evidence to

connect the petitioner with the charge leveled against him.

The allegation against this petitioner is only instigation to

commit crime. The statements of witnesses CW.23 to 25

disclose that it is only a road accident and deceased died in

a road accident. The petitioner is serving as a casual

medical officer in Urban Health Training Centre, at Medical

College, Vijayapura and he was on duty on that day. The

petitioner was not involved in commission of the offence.

The complaint is filed only on suspicious ground. No overt-

act attributed by the petitioner. The allegation of conspiracy

does not implicate this petitioner. There is delay of 12

hours in filing the complaint. The father of the deceased

was also a PSI working at Gandhi Chowk Police Station. He

has falsely implicated this petitioner also. The petitioner is

respectable person in the society, having both movable and

immovable properties within the jurisdictional Court. The

petitioner is ready to abide by any conditions that may be

imposed by this Court and ready to offer surety and he has

no any criminal antecedent. Hence, he prays to allow the

petition.

07. Against this, learned High Court Government

Pleader argued that the offences alleged are punishable

with death or imprisonment for life. It is alleged that the

petitioner if released on bail, may try to threaten the

prosecution witnesses and may again gave threat to victim.

In fact the accused are giving threat from the prison itself.

Therefore, so-moto case has been filed under Section 42 of

the Prison Act, in Crime No.49/2022 of Adarash Nagar,

Police Station. There is a material to show that this

petitioner is also involved in commission of the offence and

he is an instigator and he conspired with other accused to

commit the said offences. Therefore, he has prayed to

reject the bail petition.

08. The learned counsel for the respondent No.2

i.e., wife of the deceased has also filed a separate

objections to bail petition. The learned counsel for

respondent No.2 contended that respondent No.2's father in

order to harass his husband had filed a false case against

the deceased and his father and others for the offences

punishable under Sections 323, 324, 366, 341, 504 and

506 read with 149 of IPC. It is also contended that during

stay at Miraj, her father called over phone to Karim and

conference call with accused No.8 and threatened the

deceased. Accused No.1 also called her over a phone and

threatened to take her life. It is alleged that this petitioner

informed the father in laws of one Afreen who is her sister

in law to the effect that they should not give shelter to

deceased and his wife, otherwise they would kill her and

her husband and also Afreen's husband. The petitioner is an

influential person that is why he is shown as absconding by

the police. The police have not arrested him purposely.

Therefore, if petitioner is released on bail, he may again

cause a threat to her. Therefore, the learned counsel prays

to reject the bail petition. In support of his contention, the

learned counsel relied upon the following decisions of the

Hon'ble Supreme Court of India:-

1) Virupakshappa Gouda and another vs. State of Karnataka and another (2017) 5 SCC 406,

2) Mauji Ram vs. State of UP and another (2019) 8 SCC 17,

3) Lokesh Singh vs. State of UP and another (2008) 16 SCC 753,

4) Mahipal vs. Rajesh Kumar @ Polia and another (2020) 2 SCC 118 and

5) Manoj Kumar vs. State of UP and another (2019( 16 SCC 674.

09. I have perused the bail petition, the objections,

the charge sheet and statement of witnesses and other

documents filed along with the police report and also

perused the principles stated by the Hon'ble Supreme Court

in the decision relied upon by the respondent No.2 counsel.

10. It is settled principle of law that bail is a rule

and rejection is an exception. While granting or rejecting

the bail application, the Court will have to take into

consideration,

(1) the nature and seriousness of the offence;

(2) character of the accused;

(3) circumstances which are peculiar to accused;

(4) reasonable probabilities of presence of the accused not being secured at trial;

(5) reasonable apprehension of witnesses being tampered with; and

(6) larger interest of public or the state and similar other considerations, which arise when a Court is asked to admit the accused to bail in a non-bailable offence.

11. In the light of these principles let me consider

the bail petition filed by the petitioner who is shown as

accused No.4. The allegation against this petitioner is under

Section 120-B of IPC. The petitioner admittedly is not

residing with the other accused nor with father of deceased.

He is a medical officer working at Vijayapura. On the date

of the alleged incident it is stated that he was on duty. The

only allegation against him is that he has informed the

Afreen's father in laws, not to give shelter to the deceased

and his wife. According to the respondent No.2 this was

informed to her through Afreen. There is nothing to show as

to when the petitioner informed to Afreen's father in law

and in turn they informed this respondent No.2, is not

forthcoming. The entire charge sheet allegations shows that

the accused Nos.1, 2, 3, 5, 9, 10, 11, 13 and 14 conspired

together and went near Itagi Petrol Pump and accused

No.1, 3 and 5 were watching and accused No.10 took a

Bolero vehicle dashed from hind side to the vehicle of the

deceased. Thereafter the deceased hit to the Tractor and

fell down. It is alleged that accused Nos.2 and 9 assaulted

with a baseball bat on the head of deceased and ran away.

So, the assault alleged is by accused No.2. It is also alleged

that the accused Nos.12 and 14 came on motorcycle and

accused No.11 was in Bolero vehicle. Therefore, there is no

material against this petitioner. Where and when this

accused conspired with other accused to commit the

murder of the deceased or respondent No.2 - Aatika, is also

not forthcoming. The statement recorded by police are

hearsay and vague statements of the witnesses. Even this

respondent No.2 the wife of victim in her statement before

the police at para Nos.15 to 22 has not stated anything

about this petitioner giving threat in front of father in laws

of one Afreen. In her further statement dated 08.02.2022

she has stated that as per say of her father, she came to

know that this petitioner has conspired. The statement of

CWs.23, 24 and 25 shows that there was an accident and

somebody has assaulted the said person. Even the

statement of Afreen dated 28.02.2022 does not discloses

that this petitioner came to their house and gave threat in

front of her father in law.

12. Therefore, on perusing the entire police report,

charge sheet and other materials, at this stage there is

nothing to show that this petitioner is also involved in any

conspiracy or he gave any threat to take away the life of

the deceased or respondent No.2 in front of the father in

law of one Afreen.

13. There is no material prima-facie to connect this

petitioner at this stage to show that he has criminally

conspired to commit the alleged offence. Because the

essential ingredients of the offence of criminal conspiracy is

the agreement to commit an offence. The agreement must

be to do an illegal act and such an agreement is designated

a criminal conspiracy. Offcourse direct evidence to prove

conspiracy is rarely available, but at least there must be

circumstances which should show during or after

occurrence of the incident about the complicity of the

accused. Only because the petitioner is relative of the

accused No.1, that does not lead showing the conspiracy or

to establish the intention to kill the deceased. There must

be some material that there was agreement between the

accused for doing unlawful act. Even if the circumstances

and the material in this case are taken together on their

face value they do not indicate the allegation against this

petitioner. There must be adequate and connecting prima-

facie material with the commission of crime of criminal

conspiracy. There must be circumstances to show that an

illegal act was done in furtherance of object of conspiracy.

At least the circumstances should show to draw inference of

alleged conspiracy.

14. In the light of the above principles, the present

petition is considered then in my considered view at this

stage there are no material placed to connect this petitioner

with the alleged crime.

15. I have perused the judgment relied by the

learned counsel for the respondent No.2 by the Hon'ble

Supreme Court in the case of Virupakshappa Gouda1

wherein the Hon'ble Supreme Court dealt with the case of

1) 2017 (5) SCC, 406

'Honour killing', wherein the appellant - accused murdering

his son-in-law. The principles stated cannot be disputed at

all, but they have not bearing on this case. Because in that

case there was an inter-caste marriage and the allegation

of 'Honour killing'n was made. But, here in this case on

hand, both accused and deceased belongs to same caste.

This petitioner is not residing with the accused No.1 or his

family members.

16. The decision of Hon'ble Supreme Court in the

case of Mauji Ram2 the Hon'ble Supreme Court has stated

the matter has to be considered in grant of bail. Similar

principle is stated by the Hon'ble Supreme Court in the case

of Lokesh Singh3, Mahipal4 and Manoj Kumar5. These

principles regarding proper exercise discretionary power

and duty of the Court while granting bail cannot be

disputed at all. They are reiterated by the Hon'ble Supreme

Court in number of times. In the light of the principles

stated by the Hon'ble Supreme Court, in the above referred

decisions, if the present petition and the relevant material

placed before the Court at this stage are considered, there

2) (2019) 8 SCC 17

3) (2008) 16 SCC 753

4) (2020) 2 SCC 118

5) (2019( 16 SCC 674

is absolutely no prima-facie material to show the conspiracy

alleged against this petitioner.

17. At the cost of repetition, it is to be stated that

the deceased and respondent No.2 were in love since they

were in PUC. The said love continued for number of years.

As per the prosecution records they left to Bengaluru and

married on 07.08.2020. On the other hand, this incident

was occurred on 15.02.2021 i.e., nearly 06 months after

the alleged marriage. Even prior to three years of the

incident, they were in love with each other.

18. The petitioner was not at all present when the

incident took place. He was on duty at Medical College. He

is having roots in the society. His wife is also stated to be a

doctor and suffering from some ailment and also having

small children, whose Aadhar Card were produced and he

has produced record to show that his mother Rasulbee

Shaik and his wife are suffering from ailment, as per the

records produced on 02.08.2022. Simply, because a

valuable life is lost all the relatives of accused No.1 cannot

be implicated stating that somehow the witnesses came to

know that this petitioner is also conspired to commit the

said murder. The entire allegations against this petitioner

suffer from total vagueness and uncertainty, as to the date,

time and place as to when and where the said conspiracy

took place and between whom the said conspiracy took

place. Simply, making vague allegations long after the

incident that the petitioner has also given threat to the

respondent No.2's sister in law by name Afreen's father in-

law will not help the prosecution at this stage. The

statements of witnesses produced before the Court prima-

facie does not show the complicity of this petitioner in the

alleged crime. Therefore, keeping in mind the settled

principles regarding grant or rejecting bail in my considered

view the petitioner is entitled to be enlarged on bail.

19. The apprehension of the prosecution that if

petitioner is released on bail, he may threaten or tamper

the prosecution witnesses or he may abscond, can be

meted out by imposing reasonable conditions on the

petitioner. Accordingly, I proceed to pass the following:

ORDER

The criminal petition filed under Section 439 of

Cr.P.C. is allowed.

The petitioner/accused Rayees Usman @ Usman

Raies Ahmed s/o Babusaheb Shaikh, in Crime No.27/2022

of Gandhi Chowk Police Station, at Vijayapura on the file of

Additional Civil Judge and JMFC-I Court, at Vijayapura,

registered for the offences punishable under Sections 120

(B), 143, 147, 148 and 302 read with Section 149 of Indian

Penal Code, shall be released on bail, subject to the

following conditions.

i) The petitioner shall execute a self bond for Rs.2,00,000/- with two sureties for the like sum, to the satisfaction of the Committal Court or the Trial Court where the case is now pending.

      ii)    The petitioner shall not try to tamper the
             prosecution         witnesses         directly    or
             indirectly.


      iii)   The      petitioner    shall    not     leave    the

jurisdiction of the Trial Court without prior permission of Trial Court.

iv) The petitioner shall not involve in any criminal activities and shall not commit similar offences, now alleged against him.

v) The petitioner shall appear before the Court on all dates of hearing without fail, during trial unless his presence is dispensed by the Trial Court on any particular day.

       vi)    The petitioner shall furnish authenticated
              documents          regarding     proof   of     his
              residential        correct   address     to     the

investigating officer and to Court, and he shall inform the Court/Investigating Officer if there is any change in the address.

vii) The petitioner if having a pass-port shall surrender and deposit it before the Trial Court.

In case if any of the condition is violated, the

prosecution is at liberty to move application for cancellation

of bail.

Sd/-

JUDGE

KJJ