Maheboob S/O Hajisab Kadboor vs The State Of Karnataka And Anr
2022 Latest Caselaw 9474 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

         DATED THIS THE 23RD DAY OF JUNE, 2022

                       BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

         CRIMINAL APPEAL NO.200022/2022
BETWEEN:
SRI. MAHEBOOB,
S/O. HAJISAB KADBOOR,
AGED ABOUT 36 YEARS,
R/O. NARIBOL VILLAGE,
JEWARGI TALUK,
KALABURAGI DISTRICT - 585310.
                                         ... APPELLANT
(BY SRI. GAUTHAMI.S.BHANDARY AND
SRI. CHANDAN.H.B., ADVOCATES)

AND:

1.     THE STATE OF KARNATAKA BY
       JEWARGI POLICE STATION,
       REP. BY ADDL. SPP, HIGH COURT
       OF KARNATAKA, KALABURAGI - 585102.

2.     SRI. MALLIKARJUN,
       S/O. SHARANAPPA KOLLI,
       AGED ABOUT 45 YEARS,
       R/O. NARIBOL VILLAGE,
       JEWARGI TALUK,
       KALABURAGI DISTRICT - 585310.
                                       ... RESPONDENTS

(BY SRI. GURURAJ V. HASILKAR, HCGP FOR R1;
BY SRI. S.B.SANGOLGI, ADVOCATE FOR R2)
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     THIS CRIMINAL APPEAL IS FILED UNDER SECTION

14A OF THE SC/ST P.A. ACT, PRAYING TO ALLOW THE

APPEAL     AND   DIRECT     THE    RESPONDENT-POLICE      TO

RELEASE THE APPELLANT ON BAIL IN CRIME NO.43/2021

IN SPL.CASE SC/ST NO.29/2021 OF JEWARGI POLICE

STATION,         PENDING     BEFORE     THE     LEARNED    II

ADDITIONAL       DISTRICT      AND      SESSIONS    JUDGE,

KALABURAGI, FOR THE ALLEGED OFFENCES PUNISHABLE

UNDER SECTIONS 363, 302, 201 READ WITH SECTION 34

OF THE INDIAN PENAL CODE AND UNDER SECTIONS

3(1)(r) AND 3(2)(v) OF THE SCHEDULED CASTE AND

SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT,

1989, IN THE ENDS OF JUSTICE AND ETC.


     THIS    CRIMINAL       APPEAL      COMING     ON     FOR

ADMISSION,       THIS   DAY,      THE   COURT    MADE     THE

FOLLOWING:
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                        JUDGMENT

The appellant-accused No.1 is before this Court

praying to allow the appeal and direct the respondent-

Police to release the appellant on bail in Crime No.43/2021

in Spl.Case SC/ST No.29/2021 of Jewargi Police Station,

pending on the file of learned II Additional District and

Sessions Judge, Kalaburagi, for the offences punishable

under Sections 363, 302, 201 read with Section 34 of the

Indian Penal Code (for short 'IPC') and under Sections

3(1)(r) and 3(2)(v) of the Scheduled Caste and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (for short

'SC/ST Act'), on the basis of the first information lodged by

the informant-Mallikarjun.

2. Heard Sri. Gauthami S.Bhandary and

Sri.Chandan.H.B., learned counsel for the appellant and

Sri. Gururaj V Hasilkar, learned High Court Government

Pleader for respondent No.1 and Sri. S.B.Sangolgi, learned

counsel for respondent No.2. Perused the materials on

record.

3. Learned counsel for the appellant submitted

that the appellant is arrayed as accused No.1 and he has

not committed any offences as alleged. He has been falsely

implicated in the matter without any basis. The appellant

was apprehended on 01.03.2021 and since then, he is in

judicial custody. Learned counsel submits that there are no

eye-witnesses to the incident and motive for causing the

death of the deceased is alleged against accused No.2. The

investigation has been completed and the charge sheet is

already filed. As per the charge sheet filed by the

Investigating Officer, both accused Nos.1 and 2 have

caused the death of the deceased. The prosecution is

relying on the circumstantial evidence and the allegation is

only on accused No.2, who has been enlarged on bail by

the trial Court. Under such circumstances, the appellant is

also entitled to be enlarged on bail on the principles of

parity. He is not having any criminal antecedents. Hence,

the detention of the appellant in custody would amount to

pre-trial punishment. He is the permanent resident of the

address mentioned in the cause title to the appeal and is

ready and willing to abide by any of the conditions that

would be imposed by this Court. Hence, he prays to allow

the appeal.

4. Per contra, learned High Court Government

Pleader opposing the appeal submitted that serious

allegations are made against the appellant for having

committed the offences. He is the main accused, who

caused the death of the deceased by strangulating his neck

and testicles. Subsequently, accused Nos.1 and 2 have

thrown the dead body of the deceased to the water to

disappear the evidence. Looking to the nature and

seriousness of the offence, which is punishable either with

death or imprisonment for life, the appellant is not entitled

to be enlarged on bail. Hence, he prays for dismissal of the

appeal.

5. In view of the rival contentions urged by the

learned counsel for both the parties, the point that would

arise for my consideration is:

                   "Whether        the     appellant     is
            entitled for grant of bail in Crime
            No.43/2021      in         Spl.Case    SC/ST
            No.29/2021        of        Jewargi    Police
            Station.?"

My answer to the above point is in 'Affirmative' for

the following:

REASONS

6. Serious allegations are made against accused

Nos.1 and 2 for having caused the death of the deceased.

It is alleged that the deceased is a minor boy, aged about

14 years, had developed intimacy with the daughter of

accused No.2. This had enraged accused No.2 and she

along with accused No.1 caused the death of the deceased.

It is stated that accused No.2 was holding legs and hands

of the deceased while accused No.1 fisted on his face,

strangulated his neck and testicles and thereafter both the

accused have thrown the dead body in the water with an

intention to cause disappearance of the evidence.

Therefore, both accused are partners in committing the

crime.

7. Admittedly, accused No.2, against whom,

strong motive is alleged is already enlarged on bail. The

investigation is completed and the charge sheet is also

filed. It is not the contention of the prosecution that the

appellant is required for further investigation. There are no

eye-witnesses to the incident. Prosecution is relying on

circumstantial evidences i.e., CWs.10 to 23. The

statements of these witnesses disclose about the motive

for accused Nos.1 and 2 to commit the murder of the

deceased. Considering all these facts and circumstances of

the case, I am of the opinion that the appellant is entitled

for the benefit of parity with accused No.2 and is to be

enlarged on bail. Under such circumstances, I do not find

any reason to detain the appellant in custody, which would

amount to pre-trial punishment. Hence, I am of the

opinion that the appellant is entitled to be enlarged on bail

subject to conditions, which will take care of the

apprehension expressed by the learned High Court

Government Pleader that the appellant may abscond or

may tamper or threaten the prosecution witnesses.

8. Accordingly, I answer the above point in the

affirmative and proceed to pass the following:

ORDER

The appeal is allowed.

The appellant is ordered to be enlarged on bail in

Crime No.43/2021 of Jewargi Police Station, on obtaining

the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs

only) with two sureties for the likesum to the satisfaction

of the jurisdictional Court, subject to the following

conditions:

a). The appellant shall not commit similar offences.

b). The appellant shall not threaten or tamper with the prosecution witnesses.

c). The appellant shall appear before the Court as and when required.

If in case, the appellant violates any of the

conditions as stated above, the prosecution will be at

liberty to move the Trial Court seeking cancellation of bail.

On furnishing the sureties by the appellant, the Trial

Court is at liberty to direct the Investigating Officer to

verify the correctness of the address and authenticity of

the documents furnished by the appellant and the sureties

and a report may be called for in that regard, which is to

be submitted by the Investigating Officer within 5 days.

The Trial Court on satisfaction, may proceed to accept the

sureties for the purpose of releasing the petitioner on bail.

Sd/-

JUDGE

SMJ