Shri Mohammed Noushad vs State Of Karnataka
2022 Latest Caselaw 5176 Kant

                           1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF MARCH, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.1648 OF 2021

BETWEEN:

SHRI. MOHAMMED NOUSHAD
S/O MOHAMMED MUSTAF
AGE: 21 YEARS,
OCC.: MASON
R/O: ASHRAYA BADAVANE
SHIKARIPURA TOWN
DIST: SHIVAMOGGA-577427
                                          ... APPELLANT
(BY SRI.SANDESH.P.NADIGER, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       THROUGH SHIKARIPURA TOWN POLICE STATION,
       REPRESENTED BY S.P.P. HIGH COURT, BENGALURU
       BENGALURU-560001

2.     SHRI JANARDHAN
       S/O LATE GOPI
       AGE: 22 YEARS,
       OCC: KEB CONTRACT EMPLOYEE
       R/O: ASHRAYA BADAVANE
       SHIKARIPURA TOWN
       DIST: SHIVAMOGGA-577427...
                                       ... RESPONDENTS

(BY SRI.K.K.KRISHNA KUMAR-HCGP FOR R1
 R2-SERVED AND UNREPRESENTED)
                            2

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
U/S.14-A(2) OF SC/ST (POA) ACT, 2015 PRAYING TO ALLOW
THE APPEAL AND SET ASIDE THE ORDER DATED 15.06.2021
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, SHIVAMOGGA IN SPL.C.NO.406/2021 BY GRANTING
REGULAR BAIL TO THE APPELLANT IN CR.NO.01/2021 OF
SHIKARIPURA TOWN POLICE STATION FOR THE OFFENCE
P/U/S    302    AND     504  R/W   34   OF  IPC   AND
SEC.3(1)(r),3(1)(s),3(2)(v) OF SC/ST (POA) AMENDMENT
ACT.

     THIS CRIMINAL APPEAL IS COMING ON FOR
ADMISSION  THROUGH  VIDEO  CONFERENCE/PHYSICAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING;


                        JUDGMENT

This appeal is preferred by accused No.2 in

Cr.No.1/2021 of Shikaripura Town Police Station, praying

to set aside the order dated 15.06.2021 passed by the

court of II Additional District and Sessions Judge,

Shivamogga in SPL.Case No.406/2021, whereby the

learned Sessions Judge has rejected his petition filed

under Section 439 of Cr.P.C.

2. Heard the learned counsel for appellant and

the learned HCGP for respondent-State and perused the

material on record.

3. Respondent No.2/first informant is served but

there is no representation.

4. The first informant is one Janardhan S/o late

Gopi. The complaint averments would disclose that on

01.09.2021 at about 12.30 in the night there was a

quarrel between first informant's brother Teju and

accused No.1. In this background, at about 8.00 P.M.,

when first informant's another brother by name

Manoj(deceased) had been to the shop to bring mosquito

coil, accused Nos.1 and 2 picked up quarrel with him and

abused him with filthy language referring to his caste as

"¨ÉÆë eÁwAiÀÄ ¸ÀÆ¼É ªÀÄPÀ̼Á ¤ªÀÄäzÀÄ CwAiÀiÁVzÉ". Accused No.2

held him and accused No.1 stabbed him with a knife near

his chest and committed his murder.

5. Charge sheet has been filed for offfences

punishable under Sections 302, 504 r/w Section 34 of

IPC and Sections 3(1)(r), 3(1)(s), 3(2)(v) SC and ST

(Prevention of Atrocities) Amendment Act, 2015.

6. Learned counsel for the appellant has

contended that the appellant is innocent and he has not

committed any offence as alleged. He contends that even

accepting the case of prosecution, it is nowhere stated

that the appellant was aware that, accused No.1 was

armed with a knife and therefore it cannot be said that

there was any mens-rea on the part of the appellant to

commit the murder or that he shared a common

intention with accused No.1. He contends that appellant

is a young boy, aged about 21 years and there are no

criminal antecedents against him. He is a permanent

resident of Shikaripura Town, Shivamogga District. He is

ready and willing to abide by any conditions. He further

contends that the reasons assigned by the learned

Sessions Judge for rejecting the bail petition is not in

accordance with law. Accordingly, seeks to allow the

appeal.

7. Learned High Court Government Pleader

contends that C.Ws.1 to 4 are eye-witnesses to the

incident in question. The statement of C.Ws.2 to 4 are

recorded under Section 164 of Cr.P.C., wherein they

have clearly stated that appellant herein has held the

deceased, facilitating accused No.1 to stab him on the

vital part of the body. He therefore contends that the

material on record is sufficient to show that there is a

prima-facie case against the appellant. Therefore seeks

to reject the appeal.

8. Perusal of the complaint averments, clearly

goes to show that initially, there was a quarrel between

accused No.1 and first informant's brother by name Teju.

It is stated that on the date of incident i.e., on 01.01.21

at about 8.00 P.M. first informant's another brother i.e.,

deceased-Manoj had been to a shop to purchase

Mosquito coils. The accused persons who were standing

near the said shop, alleged to have picked up quarrel

with him and abused him taking the name of his caste

and then accused No.1 stabbed him with knife, while

accused No.2 was holding him.

9. At this stage, there is no material to show

that accused No.2 i.e., appellant herein was having any

knowledge about the previous quarrel between accused

No.1 and brother of deceased by name Teju. Further it is

also not forthcoming as to whether the appellant was

informed by accused No.1 about the previous quarrel

between himself and brother of the deceased. Further

there is no material to show that the appellant had any

knowledge about deceased coming to the shop to

purchase mosquito coil. Prima-facie, it appears that the

incident of quarrel between accused No.1 and deceased

took place when appellant was also present along with

him. Whether the appellant was knowing that accused

No.1 was carrying a knife with him, when they came

near the shop and whether he has shared common

intention with accused No.1 to commit murder, has to be

established in the course of trial.

10. As per statement of eye witnesses namely

C.Ws.1 to 4, it was accused No.1 who stabbed the

deceased with a knife on his vital part of the body i.e.,

on his chest. The blood stained knife was recovered from

accused No.1. The cause of death is due to haemorrhagic

shock caused by injury to the left ventricle of heart

(causing severe haemorrhage)". The observation of the

learned Sessions Judge that accused No.1 brought knife

from the house and sought help of accused No.2 in

committing murder and accused No.2 co-operated

accused No.1 in committing murder is too premature.

11. The investigation is complete and charge

sheet has been filed. The appellant is in judicial custody

from 06.01.21. There is no criminal antecedents against

the appellant which has been brought to the notice of the

court. Hence, the following;

ORDER

The order dated 15.06.2021 passed by

II Additional District and Sessions Judge,

Shivamogga, in SPL.C.No.406/2021 is set

aside.

Consequently, the petition filed under

Section 439 of Cr.P.C by the accused No.2

before the Sessions Court is allowed.

Appellant/accused No.2 in

Cr.No.1/2021 of Shikaripura Town Police

Station is ordered to be released subject to

following conditions;

i. The appellant/accused No.2 shall execute a bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for likesum to the satisfaction of the trial Court.

ii. He shall furnish his address proof and shall inform court/IO if there is change in address.

iii. He shall not tamper with the prosecution witnesses either directly or indirectly.

iv. He shall not leave the jurisdiction of the trial Court without prior permission of the learned Sessions Judge.

     v.    He    shall   not   involve   in   criminal
           activities.

vi. He shall appear before the court on all dates of hearing without fail.

Sd/-

JUDGE

BH