Sayyad Ali S/O. Noor Ahammad ... vs The State Of Karnataka
2022 Latest Caselaw 12243 Kant

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                                   CRL.A No. 100417 of 2022


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 30TH DAY OF SEPTEMBER 2022

                          BEFORE

THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

           CRIMINAL APPEAL NO. 100417 OF 2022

BETWEEN:

SAYYAD ALI S/O. NOOR AHAMMAD MULAGUND
AGE. 26 YEARS, OCC. AUTO DRIVER,
R/O. MANTUR ROAD, BYALI PLOT,
NEAR ABU-BAKERA ROAD,
MASJID, HUBBALLI-580026
DHARWAD DIST.
(NOW IN JUDICIAL CUSTODY)

                                                 ...APPELLANT
(BY SRI. RAVI B. NAIK, SENIOR COUNSEL FOR SRI. J. BASAVARAJ, ADV)

AND:

1.    THE STATE OF KARNATAKA
      (THROUGH KESHWAPUR P.S.
      CRIME NO.7/2018)
      R/BY ITS STATE PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      BENCH AT DHARWAD-580011

2.    SANKIRTH PILLAI S/O. KUMARESHWAR
      AGE- 29 YEARS,
      OCC- EMPLOYEE IN PRIVATE FIRMS,
      R/O. RAMANAGAR, GADAG ROAD,
      HUBBALLI-580026
      DHARWAD DIST.

                                            ...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR RESPONDENT NO.1.
RESPONDENT NO.2 SERVED.)
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                                        CRL.A No. 100417 of 2022


      THIS CRIMINAL APPEAL IS FILED U/S 14 A(2) OF SC/ST
ACT SEEKING TO ALLOW THIS APPEAL, SET ASIDE THE ORDER
DATED 01.07.2022 PASSED IN SPL.SC.ST NO.12/2018 AND
ENLARGE THE APPELLANT/ACCUSED NO.3 ON BAIL PENDING ON
THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS AND
SPECIAL JUDGE AT DHARWAD, CHARGE SHEETED FOR THE
OFFENCES PUNISHABLE U/S 143, 147, 148, 120(B), 109, 302,
201, R/W 149 OF IPC AND U/S 3(2) (V) OF SC/ST ACT 1989 AND
ALSO U/S 25(1) (A) OF INDIAN ARMS ACT IN SO FAR
APPELLANT/ACCUSED NO.3 IS CONCERNED.

      THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                              JUDGMENT

Accused No.3 has filed this appeal challenging

the order dated 01.07.2022 passed in Spl.SC.ST

No.12/2018 by the learned II Additional District and

Sessions and Special Judge, D harwad, (hereinafter

referred to as the 'Sessions & Spl. Judge', for

brevity) wherein the bail application of the appellant

came to be rejected. The appellant had sought bail

in Keshwapur Police Station Crime No.7/2018 for the

offences punishable under Section 143, 147, 148,

120B, 109, 302, 201 read with Section 149 of The

Indian Penal Code (hereinafter referred to as the

'IPC', for brevity), Section 3(2)(v) of the Scheduled

CRL.A No. 100417 of 2022

Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989, and Section 25(1A) of the

Arms Act.

2. The case of the prosecution is that, one

Sankirtha son of Kumareshwar Pillai (respondent

No.2) has filed complaint stating that on 25.01.2018

at about 08:30 p.m., the accused persons formed an

unlawful assembly and in furtherance of their

common object, the accused Nos.8 and 9 made

conspiracy with accused Nos.1 and 4 to murder one

Kumareshwar Pillai, who belonged to SC/ST

community and accused No.10 financed to purchase

the car, accused No.11 gave his vehicle to watch the

said Kumareshwar Pillai, and accused No.4 without

having valid license handed over the pistol and

bullets to accused Nos.5 to 7 to murder the said

Kumareshwar Pillai. Thereafter, accused Nos.1 to 3

and 5 to 7 made conspiracy for the murder of said

Kumareshwar Pillai and on 25.01.2018 at about

08:30 p.m., when the said Kumareshwar Pillai was

CRL.A No. 100417 of 2022

going in his motor cycle, the above said accused

persons drove their car behind the said motor cycle

and dashed to the motor cycle and made him to fall.

Thereafterr, accused No.1 assaulted with axe, and

accused No.2, 3, 5 and 6 assaulted with talwar and

accused No.7 assaulted with knife over head,

shoulder and other parts of the body of the said

Kumareshwar Pillai with an intention to murder and

thereby committed the murder of said Kumareshwar

Pillai. Then the accused persons with an intention to

cause disappearance of the evidence of the offence

thrown the said axe, talwar, knife in Thungabhadra

River near Harihara and Benni channel near

Navalagunda, parked the car in a bush situated at

National Layout, Mantur Road, the scooter was

parked at Benni Channel and 3 pistols and 8 bullets

were kept in a Masjid, which was under construction

near National Layout, Mantur road. The complaint

came to be registered in Crime No.7/2018 on

26.01.2018 for the offences punishable under

CRL.A No. 100417 of 2022

Sections 143, 147, 148, 120(B), 109, 302, 201 r/w

149 of IPC and Section 3(2)(v) of SC/ST Act and

under Section 25(1)(A) of Arms' Act. The

appellant/accused No.3 has filed this bail application

in Spl.SC & ST No.12/2018 and the same came to be

rejected by the learned II Additional District and

Sessions and Special Judge, Dharwad, by order

dated 01.07.2022. The appellant/accused No.3 has

challenged the said order in the present appeal.

3. Heard the arguments of the learned senior

counsel appearing for the counsel for the

appellant/accused No.3 and the learned High Court

Government Pleader for respondent No.1-State. In

spite of service of notice to respondent No.2, he has

remained absent and unrepresented.

4. Learned senior counsel appearing for the

appellant would contend that the motive for the

alleged offence is that, the deceased was making

efforts to see that the accused in earlier case be

CRL.A No. 100417 of 2022

convicted and also made efforts that the bail granted

to the accused be cancelled. The accusation against

the appellant/accused No.3 is that, he along with 3

others assaulted with talwar on the deceased

Kumareshwar Pillai. In the charge sheet 80

witnesses have been cited and the prosecution has

already examined 32 witnesses and some of the

witnesses and some material witnesses have not

supported the case of the prosecution and they are

PWs.12, 13, 14 and 16. It is his further submission

that, evidence has been commenced on 21.01.2021

but, as on today, only 32 witnesses are examined

and there is delay in trial of the case. At present

there are no material against the appellant/accused

No.3. Earlier this appellant/accused No.3 had filed

Crl.P.No.101289/2019 seeking bail and the same

came to be rejected by this Court by order dated

20.11.2019. In this successive petition, the

appellant/accused No.3 is seeking bail on the ground

that the witnesses examined by the prosecution have

CRL.A No. 100417 of 2022

not supported the case of the prosecution and they

have turned hostile and also the bail petition came

to be rejected only based on the statement of the

witnesses. Without considering all these aspects, the

learned Sessions and Spl. Judge has rejected the

bail petition of the appellant/accused No.3 which

requires interference by this Court. With this, he

prayed to allow the appeal.

5. Per contra, learned High Court Government

Pleader would contend that the motive for the

murder of the deceased Kumareshwar Pillai is to

destroy the evidence of earlier prosecution case in

Spl.SC.ST No.25/2016 wherein murder of Vinay

Pillai, son of the deceased Kumareshwar Pillai, had

taken place. The deceased was making efforts to see

that the accused in the earlier case be convicted in

the said case. The talwar, which is stated to have

been used by the appellant/accused No.3 to assault

the deceased, has been recovered at his instance

under mahazar. The postmortem report reveal 32

CRL.A No. 100417 of 2022

injuries over the dead body of the deceased and the

Doctor opined that, death is due to hemorrhage and

shock as a result of the injuries sustained. The

injuries noted in the postmortem report corresponds

to the overt act alleged against the appellant and

other accused. The appeal preferred by accused No.6

challenging rejection of his bail petition in

Crl.A.No.100149/2021 came to be rejected by this

Court by judgment dated 17.11.2021 and this

appellant/accused No.3 is also placed similar to that

of accused No.6. It is his further submission that

merely because some of the witnesses have turned

hostile is not a ground for grant of bail. The offence

alleged against the appellant are heinous offences

punishable with death or imprisonment for life. The

Sessions and Spl. Court considering all these aspects

has rightly rejected the bail application of the

appellant/accused No.3. With this, he prayed to

dismiss the appeal.

CRL.A No. 100417 of 2022

6. Having heard the submission of the learned

senior counsel for the appellant and the learned High

Court Government Pleader, this Court has gone

through the charge sheet records and the impugned

order.

7. The accusation against the

appellant/accused No.3 and other accused is that, as

the deceased Kumareshwar Pillai was serious in

prosecuting the earlier case, wherein murder of his

son Vinay Pillai had taken place, therefore the

appellant and other accused have killed him to

destroy the evidence of the earlier case. The

deceased had seriously fought and made efforts for

cancellation of bail of the accused in Spl.SC.ST

No.25/2016. The talwar stated to have been used

by the appellant/accused No.3 has been recovered at

his instance under mahazar. The Doctor, who

conducted postmortem examination, has noted that

there were 32 injures over the dead body of the

deceased and cause of death is due to hemorrhage

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CRL.A No. 100417 of 2022

and shock as a result of injuries sustained. On

perusal of the entire charge sheet material, there is

prima facie case against the appellant/accused No.3

for the offense alleged against him. Merely because

some of the prosecution witnesses have not

supported the case of the prosecution and have

turned hostile, is not a ground for grant of bail. The

prosecution has to examine the remaining witnesses.

If the appellant/accused No.3 is granted bail, there

is threat to the complainant and other prosecution

witnesses. Considering all these aspects, the learned

Sessions and Spl. Judge has rightly rejected the bail

application of the appellant/accused No.3. There are

no grounds to interfere with the impugned order.

In the result, the following order:

The Criminal Appeal is dismissed.

Sd/-

JUDGE

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