Karnataka High Court
Wahid Pasha @ Wahid @ Fahid Pasha vs State By on 9 January, 2025
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.P No. 12741 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 12741 OF 2024
BETWEEN:
WAHID PASHA @ WAHID @ FAHID PASHA
S/O AKRAM PASHA,
AGED ABOUT 28 YEARS,
R/AT NO.372/B,
11TH CROSS, PIPELINE ROAD,
ILIYAZ NAGAR,
KUMARSWAMY LAYOUT,
BENGALURU.
...PETITIONER
(BY SRI. MURALIDHAR S.R., ADVOCATE)
AND:
STATE BY
KUMARASWAMY LAYOUT POLICE STATION
...RESPONDENT
Digitally (BY SMT. ASMA KAOUSER, ADDL.SPP)
signed by
LAKSHMI T THIS CRL.P IS FILED U/S 439 OF CR.PC (FILED U/S 483
Location: BNSS) PRAYING TO PASS AN ORDER ENLARGING THE
High Court
of Karnataka PETITIONER ON BAIL IN CR.NO.365/2023 FOR THE ALLEGED
OFFENCE P/U/S 307, 323 R/W SEC. 34 OF IPC SUBSEQUENTLY
REGISTERED IN C.C.NO.1776/2024 UPON FILING THE CHARGE
SHEET FOR THE ALLEGED OFFENCES P/U/S 307, 302, 323 R/W
SEC. 34 OF IPC AND THEREAFTER COMMITTED TO THE
SESSIONS COURT IN S.C.NO.468/2024, PENDING BEFORE
LXVII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU (CCH-68) WITH REASONABLE CONDITIONS.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 12741 of 2024
CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ
ORAL ORDER
Petitioner / accused No.1 has preferred this petition
to enlarge him on bail in Crime No.365/2023 of
Kumaraswamy Layout Police Station, Bengaluru City,
registered for offences punishable under Section 307, 323
read with Section 34 of IPC.
2. Heard the learned counsel for petitioner,
learned Additional SPP for the State and perused the
material on record.
3. First Information Report is registered on a
complaint lodged Mohammed Moin, the brother of
deceased-Mohammed Suleman, against four unknown
persons. The complaint averments reveal that on
23.10.2023 at about 10:30 p.m., one Thowphik Ahamadh,
a relative of the complainant had quarrelled with few
persons and at about 12:30 in the midnight, those persons
came in search of him near his house. The first informant
along with his deceased brother and others went near the
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house of Thowphik Ahamadh and they saw the accused
quarrelling. When they tried to pacify them, they started
assaulting the deceased. When the first informant
intervened, they assaulted on his face and lips and caused
injuries to him. One of the accused stabbed the deceased
on his abdomen and back and caused severe injuries and
all of them ran away from the spot.
4. Accused Nos.1 to 3 came to be arrested on
25.10.2023. At the instance of accused No.1, a blood
stained knife was seized. The statement of the eye
witnesses are recorded. The victim, who sustained severe
injuries, succumbed to the injuries while undergoing
treatment on 31.10.2023. On completion of investigation,
charge sheet is filed against accused Nos.1 to 3 for
offences punishable under Section 307, 323, 302 read with
Section 34 of IPC, arraigning the petitioner as accused
No.1.
5. It is contended by the learned counsel for
petitioner that, the petitioner is innocent and he is not
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involved in any offence much less the one now alleged
against him. There are discrepancies in the statements of
eye witnesses. Their statements are recorded belatedly
after the arrest of the accused, only to suit the prosecution
case. It is further contended that the FIR was registered
against Four unknown persons, whereas, the charge sheet
is filed only against Three accused and implication of
petitioner is on a mistaken identity. It is further contended
that accused Nos.2 and 3 are already enlarged on bail,
whereas, the petitioner is in judicial custody since
25.10.2023 and now the investigation is completed and
charge sheet is filed. He has therefore sought to enlarge
the petitioner on bail by imposing any conditions.
6. Per contra, Additional SPP has contended that
CWs.1, 2 to 4 and 6 to 11 are the eye witnesses to the
incident. Their statements clearly reveal that it was the
petitioner who stabbed the deceased on his abdomen and
the injuries mentioned in the postmortem report also
tallies with the statements of eye witnesses. She
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contended that there is a prima-facie case against the
petitioner and therefore, he is not entitled for bail.
Accordingly, she has sought to dismiss the petition.
7. The incident took place on 24.10.2023 at about
00:30 hours. The first informant is the brother of the
deceased and he is also an injured in this case. His
presence at the spot cannot be disputed at this stage.
Apart from him, CWs.2 to 4 and 6 to 11 are also eye
witnesses. I have perused their statements wherein, they
have clearly stated that it was this petitioner who stabbed
the deceased with a knife. As per post mortem report, the
victim died due to complication following stab injuries over
abdomen:
1. A sutured stab wound with clean cut margins
measuring 4cms present over left side of front
of abdomen, 32cms below from the top of left
shoulder.
2. A sutured stab wound with clean cut margins
measuring 2cms present over the left iliac
region 4cm above iliac spine.
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3. A sutured stab wound with clean cut margins
measuring 3cms present over the upper aspect
of left gluetal region.
4. Abrasion measuring 3cms X 2cms present over
bridge of the nose.
8. The contention of the learned counsel for
petitioner that the statements of the eye witnesses are
recorded belatedly after the arrest of the accused and
therefore, their statements cannot be believed to hold that
the petitioner is innocent of the alleged offence, cannot be
accepted at this stage. All the eye witnesses have
categorically stated that this petitioner has stabbed the
deceased on his abdomen with a knife. A blood stained
knife is also recovered at the instance of the petitioner.
Admittedly, the accused are strangers to the first
informant and therefore, their names were not mentioned
in the FIR. After the arrest of the petitioner he has been
identified by the first informant as well as other eye
witnesses.
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9. Learned counsel for petitioner would contend
that the incident has taken place in a sudden quarrel and
in a free fight between two parties armed with deadly
weapons, and therefore, the nature of offence does not fall
under the ingredients of Section 302 of IPC.
10. Learned counsel has relied on the following
judgments.
i. DHARMAN V/S STATE OF PUNJAB reported in
1957 CRI.L.J.420
ii. MAINA BANSFOR V/S THE STATE OF
JHARKHAND reported in 2012(3) AIR JHAR R
iii. SUKHRAM MUNDA V/S STATE OF JHARKHAND
reported in 2012 (4) AIR JHAR R 314 : :
(2012) 4 JCR 544 (JHA)
iv. ALKA GOPINATH DHANAWADE VS STATE OF
MAHARASHTRA reported in 2013 (4) ABR 121
: : (2014) 3 BOMCR(CRI) 724
v. BABULAL MARANDI & ANOTHER V/S STATE OF
JHARKHAND reported in 2014 (1) AJR 285
vi. BIRBAL BANS MAHLI V/S STATE OF
JHARKHAND reported in 2015 (2) AJR 605
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vii. SUKHLAL SINGH V/S STATE OF JHARKHAND
reported in 2016 (2) AJR 572
viii. SONU DAHIYA V/S STATE OF NCT OF DELHI
reported in 2015 (2) ADR 608
ix. UMESH V/S STATE OF M.P. reported in
AIRONLINE 2018 MP 276
x. SAGAR AJIT THAKUR V/S STATE OF
MAHARASHTRA reported in AIRONLINE 2020
BOM 779
xi. NADIYA DASHRATHBHAI RAMANBHAI V/S
STATE OF GUJARAT reported in AIRONLINE
2021 GUJ 1774
11. Throughout, the learned counsel argued that
petitioner was innocent and he was not at all involved in
the commission of the offence and it is a mistaken
identity. However, while dismissing the petition, he relied
on catena of judgments contending that it was a free fight
and the petitioner has committed the offence in a quarrel
and therefore, the ingredients of Section 302 of IPC are
not made out.
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12. The above judgments are rendered after
conclusion of trial wherein the Hon'ble Supreme Court
considering the entire evidence on record has come to the
conclusion that in a free fight where two parties armed
with deadly weapons are involved then offence under
Section 302 of IPC would not attract, but Section 304 IPC
would attract.
13. Here it is not the case that even the deceased
was armed with any weapon. The material on record
clearly show that the petitioner was armed with weapon
which show his intention when he came to the spot in
search of one Towphik Ahammed, a relative of the
deceased. So he had a clear intention of committing the
offence when he came to the spot. The deceased was
unarmed and initially it was the petitioner who started
quarrelling and assaulted both the complainant and
deceased. He stabbed the deceased with knife on his vital
part of the body. At this stage, it cannot be said that there
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was any provocation on the part of the deceased which
prompted the accused to stab him.
14. In AIR online 2020 Bom 779, it was a case of
circumstantial evidence. Bail was granted on the ground
that no strong corroborative evidence was made out
against the accused.
15. In AIR online 2021 Guj 1774, considering that
there was an inordinate delay in lodging FIR and
considering the nature of allegations against the accused,
bail was granted.
16. In the instant case, there is no delay in lodging
the complaint as the incident took place on 24.10.2023 at
about 00:30 hours and the complaint was lodged on the
same day at 06:30 a.m.
17. The specific overt acts of stabbing the deceased
is against the petitioner and therefore grant of bail to
accused Nos.2 and 3 is also not a ground to enlarge the
petitioner on bail. There is a prima-facie case against the
petitioner and considering the nature and gravity of the
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offence, this is not a fit case to enlarge the petitioner on
bail.
18. Petition is dismissed.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
LDC
