Ismail S/O Kutubuddin Mulla vs The State Of Karnataka
2023 Latest Caselaw 5489 Kant

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                                                       NC: 2023:KHC-D:8773
                                                       CRL.A No. 100230 of 2023




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 10TH DAY OF AUGUST, 2023

                                              BEFORE

                                THE HON'BLE MS. JUSTICE J.M.KHAZI

                               CRIMINAL APPEAL NO. 100230 OF 2023

                      BETWEEN:

                      ISMAIL S/O. KUTUBUDDIN MULLA,
                      AGE: 24 YEARS, OCC: COOLIE,
                      R/O: A/P. SINDHUR, TAL JATH,
                      DIST: SANGLI,
                      PRESENTLY RESIDING AT: BEDARAHATTI,
                      TQ: ATHANI, DIST: BELAGAVI.
                                                                  ...APPEALLNT
                      (BY SRI. ROHIT N. LATUR, FOR;
                          SRI. HANAMANT R. LATUR, ADVOCATES)

                      AND:

                      1.   THE STATE OF KARNATAKA,
CHANDRASHEKAR              R/BY THE CPI AIGILI P.S.,
LAXMAN                     TQ: ATHANI, DIST: BELAGAVI,
KATTIMANI
                           R/BY HCGP, HIGH COURT OF KARNATAKA,
                           DHARWAD BENCH, DHARWAD.
Digitally signed by
CHANDRASHEKAR         2.  SMT. NARASAWWA W/O. PANDURANG BELAGALI,
LAXMAN                    AGE: 30 YEARS, OCC: HOUSEHOLD,
KATTIMANI                 R/O: BEDARAHATTI, TQ: ATHANI,
Date: 2023.08.11          DIST: BELAGAVI, PIN: 591240.
16:00:06 -0700
                                                               ...RESPONDENTS
                      (BY SRI. PRAVEEN K. UPPAR, HCGP FOR R1;
                          SMT. CHETAN S. BIRAJ, ADVOCATE FOR R2)

                           THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14
                      A(2) OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
                      19.04.2023 PASSED BY THE HON'BLE III ADDL. DISTRICT AND
                      SESSIONS JDUGE, BELAGAVI IN CRL.MISC NO. 296/2023
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                                          NC: 2023:KHC-D:8773
                                          CRL.A No. 100230 of 2023




REJECTING THE BAIL APPLICATION FILED U/SEC. 439 OF
CR.P.C. FOR THE OFFENCE P/U/SEC. 302, 506, IPC AND U/SEC.
3(1)(r), 3(1)(s), 3(2)(v) SC ST ACT, 1989 I.E., IGALI P.S.
CRIME NO. 94/2022 AND RELEASE THE APPELLANT ON BAIL.

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

                              JUDGMENT

1. Appellant, who is the sole accused has filed this

appeal under Section 14-A(2) of The Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short, 'SC & ST Act') read with Section 439 Cr.P.C. to

release him on bail in Crl.Misc.No.296/2023 (Crime

No.94/2022 of Aigali PS) for the offences punishable

under Sections 302, 506 IPC and Sections 3(1)(r), 3(1)(s),

3(2)(v) of SC & ST Act.

2. The appellant has contended that the

complaint, FIR and charge sheet are contrary to law and

facts. The appellant is innocent of the offences alleged.

The Trial Court has failed to consider the facts of the case

and as such, the order rejecting the bail to the appellant is

liable to be set aside.

NC: 2023:KHC-D:8773 CRL.A No. 100230 of 2023

2.1. Initially complaint came to be filed against

unknown persons. Later on the name of appellant is

inserted. There are no eyewitnesses to the alleged incident

and the entire case of the prosecution is based on

circumstantial evidence. However the prosecution has

failed to link the chain of circumstance. Initially, CW14-

Rani has stated that by the time she returned, attending

natures call, deceased was assaulted, but later on, she has

improved her version in statement under Section 164

Cr.P.C. that when she returned, accused was present at

the spot and seen him assaulting the deceased. The

prosecution has set up CW13 before whom, the accused

has allegedly confessed.

2.2. The investigation is completed and charge sheet

is filed. Appellant is in custody since 08.08.2022. Appellant

is not having any criminal antecedents. He is only the

earning member of the family. He undertake to abide by

any conditions that may be imposed and prays to allow the

appeal.

NC: 2023:KHC-D:8773 CRL.A No. 100230 of 2023

3. Learned HCGP has filed objections stating that

complainant Smt.Narasawwa and her husband deceased

Pandurang Belagali belongs to ST community. On

06.08.2022, deceased left the house on his two wheeler.

At 9.30 p.m., when complainant called him, he replied that

he would come soon. Later one Sabu Sadashiv Janwad

called the complainant and enquired about her husband.

Again when complainant called her husband, it was

received by CW14-Rani and she disclosed that someone

has killed him. Immediately complainant went to the spot

and lodged the complaint.

3.1. During investigation, appellant was arrested and

based on the voluntary statement, recovery of the

material objects namely the motorcycle and the blood

stained clothes of the appellant were made. The statement

of material witness namely CW13 and CW14 were

recorded by the jurisdictional Magistrate under Section

164 Cr.P.C., which reveal the involvement of the

appellant/accused. On account of threat given by the

NC: 2023:KHC-D:8773 CRL.A No. 100230 of 2023

appellant /accused, CW14 Rani initially failed to disclose

his name. CW13 Siddappa Kadgoudar is the person before

whom the appellant has given extra judicial confession

that he killed the deceased. CWs15 and 16 are the owners

of the land where the incident took place and they reached

the said place immediately after the incident. If released

on bail, there is every likelihood of the appellant

threatening and tampering the prosecution witnesses and

thereby the very purpose of the trial is defeated and prays

to reject the appeal.

4. Heard arguments and perused the records.

5. A charge sheet came to be filed against the

appellant/accused for the offences punishable under

Sections 302, 506 IPC and Section 3(1)(r), 3(1)(s),

3(2)(v) of SC & ST Act. As evident from the charge sheet,

it is the definite case of the prosecution that complainant

and her husband i.e., deceased Pandurang Belagali belong

to Hindu Beda caste coming under ST category.

Appellant/accused was having illicit relationship with CW14

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Smt.Rani @ Chandravva a relative of deceased. Since

deceased was moving around with CW14-Rani on his

motorcycle, thinking that he is coming in the way of his

relationship with her, appellant/accused had developed

enmity against him. In this background, on 06.08.2022, at

9.00 p.m., deceased Pandurang took CW14 Rani on his

motorcycle to the clinic of CW17-Dr.Ashok Khot and were

returning to the village through Adahalatti-Bedarhatti

service road. When they were near the land of CW16-

Hanumanth Naik, deceased stopped the motorcycle to

enable CW14-Rani to attend natures call and moved a

little further. At that time, appellant/accused came their

on his motorcycle and intercepted the accused and started

abusing him demanding that despite knowing that he is

having illicit relationship with CW14, why he is moving

around with her and thereby spoiling their relationship.

When deceased got down from his motorcycle and started

making call on his cell phone, accused picked up a stone

and assaulted deceased on his head. When CW14 Rani

intervened, he gave threat to her life and gave two more

NC: 2023:KHC-D:8773 CRL.A No. 100230 of 2023

blows on the head of the deceased. While leaving the

place, he gave threat to CW14 Rani that if she reveal the

said fact, she would also meet the same fate.

6. After coming to know about the incident,

Narsawwa, the wife of deceased filed the complaint.

During investigation, the investigating officer has recorded

the statement of CW13-Siddappa Kadagoudar, which

reveal that accused has confessed of having committed

the murder of deceased. CWs.15 and 16 Paragond

Kallappa Naik and Hanumanth Naik, are the adjoining land

owners. On hearing the commotion, they have reached the

spot and came to know about the incident from CW14

Rani. In the light of the material placed on record in the

charge sheet, a strong prima facie case is made out

against the appellant/accused.

7. Though an eyewitness, having regard to the

fact that accused was having illicit relationship with her

and also due to the threat given by the accused, CW14

Rani has failed to reveal the said fact. Consequently, in the

NC: 2023:KHC-D:8773 CRL.A No. 100230 of 2023

event of granting bail, the possibility of accused

threatening and tampering with the witnesses and thereby

defeating the very prosecution cannot be ruled out. Having

regard to the gravity of charges levelled against him, the

possibility of appellant/accused absconding also cannot be

ruled out. Taking into consideration these aspects, this

Court is of the considered opinion that appellant/accused

is not entitled for bail and accordingly the following order:

ORDER

Appeal filed by the appellant/accused under Section

14-A(2) of the SC & ST Act is rejected.

Sd/-

JUDGE

KGK