Shaikh Nawaz S/O Khadeer Pasha vs The State And Anr
2023 Latest Caselaw 222 Kant

                           1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 04TH DAY OF JANUARY, 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL No.200177/2022

BETWEEN:

SHAIKH NAWAZ S/O KHADEER PASHA
AGE: 19 YEARS, OCC: STUDENT,
R/O. SONABAI AREA,
WADI, TQ. CHITTAPUR,
DIST. KALABURAGI-585225.
                                          ... APPELLANT
(BY SRI NANDKISHORE BOOB, ADVOCATE)


AND:

1.     THE STATE THROUGH
       WADI POLICE STATION,
       NOW REPRESENTED BY ADDL. SPP
       HCKB AT KALABURAGI.

2.    SMT. RAJESHWARI W/O SURESH KAMBLE
      AGE: 45 YEARS, OCC: HOMEMAKER,
      R/O. BHIM NAGAR, WADI,
      TQ. CHITTAPUR, DIST. KALABURAGI-585225.
                                         ... RESPONDENTS
(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
 SRI RAJESH G. DODDAMANI, ADVOCATE FOR R2)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A)(1) OF THE SCHEDULED CASTES AND SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT, PRAYING TO RELEASE THE
                              2




APPELLANT/ACCUSED NO.2 ON BAIL, IN CRIME NO.69/2022 OF
WADI POLICE STATION, FOR THE OFFENCES UNDER SECTION
302 R/W SECTION 34 OF IPC AND SECTIONS 3(1)(R)(S) 2(V)
OF SC/ST PA ACT 1989, PENDING ON THE FILE OF II-ADDL.
DIST. AND SESSIONS JUDGE AT KALABURAGI (IN SPL.C
(SC/ST) NO.78/2022).


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


                        JUDGMENT

Heard Sri Nandkishore Boob, learned counsel for the

appellant, learned High Court Government Pleader for

respondent No.1 and Sri Rajesh G. Doddamani, learned

counsel for respondent No.2-defacto complainant.

2. The present appeal is filed under Section

14(A)(1) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, (for short, hereinafter

referred to as 'SC/ST (POA) Act') with the following prayer:

"Hence, it is requested that the Hon'ble Court may kindly be pleased to release the Appellant/A.No.2 on bail, in Crime No.69/2022 of Wadi Police Station, for the offences U/s 302 R/w 34 IPC & 3(1) (r) (s) 2 (v) of SC/ST PA Act

1989, pending on the file of Hon'ble IInd Addl. Dist & Sessions Judge at Kalaburagi (in Spl.C (SC/ST) No. 78/2022), in view of the reasons stated above, in the interest of justice and equity."

3. Brief facts of the case are as under:

Wadi Police registered a case in Crime No.69/2022

for the offence punishable under Section 302 r/w Section

34 of IPC and Sections 3(1)(r)(s), 2(v) of the SC/ST (POA)

Act, based on the complaint lodged by Smt. Rajeshwari

W/o Suresh Kamble, aged 45 years, resident of Wadi

Town.

Gist of the complaint averments reveal that the

complainant is married to Suresh Kamble and she has two

daughters and a son. Suresh Kamble died about 17 years

back. Her son is working as a Cook in Wadi Town Rail

Running Room and he is unmarried. He had an affair with

Baby Zikriya, resident of Maratha Galli and they used to

converse with each other over telephone. In that regard,

elder brother of Baby Zikriya tried to assault her son

Vijaykumar and the same was escaped by Vijaykumar by

calling one Shailu. Shailu inturn intimated the same to

Mohd. Sahabuddin and Vijaykumar was advised to

terminate the relationship between him and the baby

Zikriya. Despite the same, the accused had given him a life

threat.

In pursuance of the said enmity, on 25.05.2022, at

about 7.45 p.m., when she was in the house, friend of her

son by name Raghavendra intimated the complainant that

Vijaykumar and himself were sitting near Ambedkar

Samudhaya Bahavan at about 7:30 p.m. on 25.05.2022,

Mohd. Sahabuddin came with a knife and another person

with a stick and picked up quarrel with Vijaykumar,

assaulted Vijaykumar and also stabbed him and abused in

filthy language and whereby Vijaykumar sustained

grievous injuries and he was shifted to Government

Hospital wherein he has been declared as dead.

4. Upon receipt of such information, the

complainant lodged complaint with the jurisdictional police

and the police registered the case as aforesaid and

investigated the matter and filed charge sheet against the

appellant and another.

5. The attempt made by the appellant to seek

grant of bail is turned down by the learned Special Judge.

Thereafter, the present appeal has been preferred by the

second accused.

6. Reiterating the grounds urged in the appeal

memorandum, Sri Nandkishore Boob, learned counsel for

the petitioner vehemently contended that even according

to the complaint averments and the material collected by

the investigating agency, the present appellant has

assaulted the deceased with a club and therefore, the

injuries sustained by the deceased is not fatal and hence,

he is entitled for grant of bail.

7. He also pointed out that since charge sheet is

filed continuation of the accused in judicial custody is no

longer warranted. He further contended that continuation

of the accused in judicial custody would amount to pre-trial

conviction and sought for grant of bail.

8. Per contra, learned High Court Government

Pleader opposes the appeal grounds. So also Sri Rajesh G.

Doddamani, learned counsel appearing for the de-facto

complainant opposes the appeal grounds by contending

that the material on record clearly indicate both the

accused persons had hatched a plan to take away the life

of the deceased as deceased has an affair with the sister of

the first accused.

9. They also contended that offences alleged

against the appellant is heinous in nature and in the event

of conviction, the appellant would be punishable with life

imprisonment or death penalty and therefore, the gravity

of the offence is on the higher side and therefore,

appellant is not entitled for grant of bail.

10. They also contended that material on record

clearly disclose that there are three eyewitnesses to the

incident and the prima facie material collected by the

investigating agency points out the guilt towards the

appellant and so also other accused person and therefore,

the appellant is not entitled for grant of bail.

11. In view of the rival contentions of the parties,

this Court perused the material on record meticulously.

12. In the case on hand, homicidal death of

Vijayakumar is prima facie established by the investigating

agency by collecting necessary materials, especially, post

mortem report and inquest mahazar. In the post mortem

report, there are 16 external injuries. Opinion given by the

Autopsy Surgeon is that because of external injuries,

hemorrhage and shock, the deceased lost his life. There is

a seizure of club and the knife said to have been used in

the incident by the investigating agency. The investigation

is conducted by the Deputy Superintendent of Police.

Prima facie material on record would go to show that the

prosecution is able to establish the nexus between the

incident and the accused appellant.

13. In a matter of this nature, especially at the

time of considering the bail application, this Court is not

expected to hold a mini trial as the same may prejudice

the case of the parties during the trial.

14. No doubt, learned counsel for the appellant

brought to the notice of the Court that CW.9 in his

statement recorded before the learned Magistrate under

Section 164 of Cr.P.C., has clearly given a go-bye to the

statement given by him under Section 161 of Cr.P.C. No

doubt, such a statement is available on record in the

charge sheet materials. But this Court, at this stage cannot

go into the veracity of such statement inasmuch as, there

are two more eyewitnesses who have stated about the

individual overt act of the appellant in the incident.

15. Therefore, desisting from holding a mini trial,

the material on record would definitely disentitle the

appellant to obtain an order of grant of bail by resorting to

special powers vested in this Court under Section 439 of

Cr.P.C., and under Section 14-A of SC/ST (POA) Act.

16. Suffice to say that the material on record, at

this stage, would not warrant for grant of bail to the

appellant. Further, it is always open for the appellant to

approach the concerned Court with a successive bail

application, if there is any positive changed circumstances

in the case, especially, after the examination of CWs.9 to

11. Reserving such liberty, the following:

ORDER

The appeal is dismissed.

Since the accused is in judicial custody since

26.05.2022, the trial Court is directed to expedite the trial

and complete the same on or before 31.10.2023.

Sd/-

JUDGE

NB*/VNR