Smt. Anjum Ara vs State Of Karnataka
2023 Latest Caselaw 1752 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF MARCH, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

             CRIMINAL PETITION NO.1393/2023
BETWEEN:

SMT. ANJUM ARA
W/O NASEER PASHA
AGED ABOUT 25 YEARS
R/AT AKKIHEBBALU VILLAGE
K.R.PETE TALUK
MANDYA-571 605.                            ... PETITIONER

  (BY SRI ASHWIN VYASH, ADVOCATE FOR SRI MOHAMMED
            SALEHA @ MUKARRAM, ADVOCATE)
AND:

STATE OF KARNATAKA
BY K.R.PETE RURAL POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.                        ... RESPONDENT

            (BY SRI K.K.KRISHNA KUMAR, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
THE CR.NO.208/2021 OF K.R.PET RURAL POLICE STATION,
MANDYA, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
302, 201, 120-B R/W. SECTION 34 OF IPC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01.03.2023. THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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                           ORDER

Heard the learned counsel for the petitioner and learned

High Court Government Pleader appearing for the respondent-

State.

2. This is a successive bail petition filed under Section

439 of Cr.P.C. seeking regular bail of the petitioner/accused No.1

in Crime No. 208/2021 of K.R.Pet Rural Police Station, Mandya,

for the offences punishable under Sections 302, 201, 120-B read

with Section 34 of IPC.

3. This petitioner, earlier had approached this Court

after filing of the charge-sheet in Crl.P.No.11259/2022 and the

same came to be rejected on 29.11.2022 considering the

material available on record particularly, the statement of CW22

who witnessed that this petitioner was conspiring with accused

Nos.2 and 3 in her house. This Court also taken note of the

allegation of illicit relationship between this petitioner and

accused No.2 and also taken note of CDR report as well as the

conversations between this petitioner and accused No.2 which

discloses that they were in conversation with each other and on

the previous day of the alleged murder also they were in

constant touch and subsequent to death of the deceased also

they were in touch with each other. The CDR report discloses

that there were conversations between them and material

available on record discloses close affinity which they were

having with each other and waiting for the deceased and the

same also discussed in the conversation among them. Having

taken note of the said fact into consideration, this Court comes

to the conclusion that there are sound circumstances against the

petitioner herein and the specific allegation against this

petitioner is that she was conspired with her paramour to

commit the murder of her husband. Hence, rejected the bail

petition. Prior to consideration of this petition, the petitioner had

approached this Court in Crl.P.No.9520/2021 and the same was

withdrawn with liberty to approach the Trial Court and one more

petition was filed in Crl.P.No.8814/2022 and the same was also

withdrawn with liberty to file fresh petition and thereafter, in

Crl.P.No.11259/2022, in detail, this Court considered the bail

petition.

4. The learned counsel appearing for the petitioner

would vehemently contended that at the first instance this

petitioner was not arraigned as accused and only in FIR

suspected the role of this petitioner. The counsel further

submits that the offences invoked against this petitioner are

under Sections 120B and 302 of CPC. The counsel vehemently

contend that even this Court comes to the conclusion that there

is an abetment to commit the murder, the maximum punishment

is 14 years and not the life imprisonment. The counsel further

contend that accused No.3 who committed the alleged crime was

enlarged on bail from coordinate Bench of this Court in

Crl.P.No.7683/2022. The counsel also would submit that the

petitioner is having two children and she has to take care of

them and this Court has to take note of the liberty of a person

and case is rest upon the circumstantial evidence. The counsel

also vehemently contend that there is no any admissible

evidence to prove the illicit relationship between this petitioner

and accused No.2. It is contended that prosecution has failed to

place on record that this petitioner was talking to accused No.2

before committing the alleged crime and there is no evidence to

show that any of the mobile numbers are belongs to this

petitioner. The counsel also vehemently contend that voice

sample of this petitioner was obtained without Court permission

and the same is inadmissible and cannot be used to identify the

questioned voice appearing in the recordings. This petitioner

admittedly has not played any role either in the assault on the

deceased or in the destruction of evidence as alleged. This

petitioner undertakes to appear before the Court regularly and

also will not tamper the prosecution witnesses. Hence, prayed

this Court to enlarge the petitioner on bail.

5. The counsel in support of his arguments relied upon

the judgment of the Apex Court reported in (2011) 4 SCC 143

in the case of NILESH DINKAR PARADKAR vs STATE OF

MAHARASHTRA and brought to notice of this Court to

paragraph 25 with regard to voice identification evidence and the

same is not a substantive piece of evidence and brought to

notice of this Court with regard to the principles laid down in the

judgment i.e., placing reliance on the evidence of voice

identification and the counsel also would contend that in the case

on hand, there is no evidence to indicate that she was using the

said mobile number except voice identification and hence, only

based on the telephonic conversation, she cannot be kept in

custody.

6. The counsel also relied upon the judgment of Apex

Court reported in (1982) 2 SCC 258 in the case of MAHABIR

PRASAD VERMA vs DR.SURINDER KAUR and brought to

notice of this Court to paragraph 22 wherein the Apex Court

discussed with regard to tape-recorded conversation can only be

relied upon as corroborative evidence of conversation deposed

by any of the parties to the conversation and in the absence of

evidence of any such conversation, the tape-recorded

conversation is indeed no proper evidence and cannot be relied

upon.

7. The counsel also relied upon the judgment of the

Apex Court reported in (2005)2 SCC 42 in the case of KALYAN

CHANDRA SARKAR vs RAJESH RANJAN ALIAS PAPPU

YADAV AND ANOTHER wherein also the Apex Court in

paragraph 19 discussed with regard to the application of

principles of res-judicata and such analogous principles although

are not applicable in a criminal proceeding, still the Courts are

bound by the doctrine of judicial discipline having regard to the

hierarchical system prevailing in our country. The Courts must

give due weight to the grounds which weighed with the former

or higher Court in rejecting the bail application. If any fresh

material either factual or legal so as to empower the high Court

to reconsider the earlier orders.

8. The counsel referring these judgments would

contend that even if earlier bail petition is rejected, this Court

can consider the material available on record and changed

circumstances.

9. Per contra, the learned Government Advocate

appearing for the State would vehemently contend that this is a

fourth petition and there is recovery at the instance of this

petitioner i.e., three mobiles. The FSL report is awaited and the

conversation sample of this petitioner also collected and

accused No.2 is also connected since both of them were in

constant touch with each other prior to committing the murder

and even after committing the murder. The conversation

between accused persons is also recorded and the same is

placed along with the charge-sheet and it is clearly discloses that

having conspired with each other, secured the deceased to the

particular place to commit the murder and committed the

murder. CW22 statement also very clear that in the house of

this petitioner, conspiracy was taken place and this petitioner

called accused Nos.2 and 3 to her house and conspired with

them and accused Nos.2 and 3 committed the murder and in

terms of PM report, there were 24 injuries on the body of the

deceased. The CCTV footage discloses the purchasing of petrol

by accused Nos.2 and 3 and the CCTV footage also seized and

CDR report is also collected and CW13 has identified accused

Nos.2 and 3 who have purchased the petrol from the petrol

bunk. This Court having considered all these material available

on record comes to the conclusion that there is a prima facie

case against the petitioner herein and there is no changed

circumstances. Hence, the petitioner is not entitled for the bail.

10. In reply to the arguments of the counsel for the

State, the counsel for the petitioner would vehemently contend

that not found any conversation took place between this

petitioner and accused persons and there is no admissible

evidence before the Court with regard to the conversation is

concerned hence, the petitioner is entitled for the bail.

11. Having heard the counsel for the petitioner and also

the Government Advocate for the State and also on perusal of

the material available on record it discloses that no doubt, there

is no dispute with regard to the principles laid down in the

judgment of the Apex Court in the case of KALYAN CHANDRA

SARKAR wherein it is held that the Court can entertain the

successive bail petition if more particulars are furnished before

the Court. The other contention that no admissible evidence

with regard to the telephonic conversation is concerned. In

support of this contention, the counsel also relied upon the

several judgments referred supra and these judgments are

considered after trial. But in the case on hand the prosecution

particularly relies upon the statement of CW22 who witnessed

that accused Nos.2 and 3 were present in the house of this

petitioner and all of them conspired with each other prior to

committing the murder. The prosecution also seized the mobile

phones belongs to this petitioner as well as accused Nos.2 and 3.

The telephonic conversation between this petitioner and accused

No.2 who have alleged illicit relationship with each other is also

collected and found conversation with regard to securing the

deceased to the particular spot to commit the murder with an

intention to eliminate the deceased who is none other than the

husband of this petitioner. The PM report also discloses that

there were 24 external injuries and also after inflicting injury

poured the petrol and burnt the body and cause of death is also

due to hypovolaemic shock and neck blood vessels severing on a

result of multiple sharp force injuries hence, it is a brutal

murder. The very contention of the petitioner's counsel that at

the most if Section 115 is invoked, maximum sentence would be

14 years and not the life or death sentence and the same has to

be established during the course of the trial. The conversation

sample was collected and the same is not in dispute and the

prosecution mainly relies upon the conversation between this

petitioner and accused No.2 regarding committing the murder

and also with regard to the illicit relationship between them and

FSL report is awaited with regard to the conversation made

between this petitioner and accused No.2. The granting of bail

in favour of accused No.3 is not a ground to enlarge this

petitioner on bail and co-ordinate Bench of this Court granted

bail in favour of accused No.3 only on the ground that the case is

rest upon the circumstantial evidence. In the case on hand, the

specific allegation against this petitioner is that there was a

matrimonial dispute between this petitioner and the deceased

and the same was compromised and again they lived together

for sometime and again this petitioner left the company of the

deceased and secured the deceased making telephonic call to

the particular place of incident and this petitioner was in

constant touch with accused No.2 and this Court also while

rejecting earlier bail petition vide order dated 29.11.2022 in

Crl.P.No.11259/2022 considered these materials particularly, the

statement of CW22 and also the CDR report in respect of

conversation between this petitioner and accused No.2 and even

prior to the committing the murder, in the previous day, both of

them were in constant touch with each other and even

subsequent to the murder also they were in constant touch with

each other. When such material is placed before the Court and

in the present petition, no changed circumstances is made out

except reiterating the grounds which have been urged earlier

petition and only contend that no voice test was conducted but

the counsel for the State would submits that the voice sample

was collected and the same was sent to FSL and the FSL report

is awaited. When such being the facts and circumstances of the

case, I do not find any grounds to entertain this successive bail

petition as contended by the counsel for the petitioner.

12. In view of the discussions made above, I pass the

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SN