IRFAN Vs. THE STATE OF KARNATAKA

JUDGEMENT

(1.) THE present petitioner who is arrayed as accused No. 19 in C.C. No. 450/2015 on the file of J.M.F.C., Vijayapur for the offences punishable U/Sec. 143, 147, 148, 302, 323, 120(B), 109, 504, 506 R/w Sec.149 of Indian Penal Code has approached this Court for grant of regular bail U/Sec.439 of Cr.P.C.

(2.) THE brief factual matrix that emanate from the records as could be seen from the charge sheet papers that the complainant one Mohedden Pasha lodged first information report stating that he is the resident of Havelli Galli, Bijapur. In the year 2011 there was election of youth congress, Bijapur, in that election the grand son of the complainant by name Moin Anees has contested against one Mohammed Asif as rival contestant. In the said election, poling booth was fixed at Darbar High School, at that time Mohammed Asif and his friends and the grand son of the complainant Moheddenpasha and Moin Anees were present and in fact the said Mohammed Asif has given life threat and in fact the said person had shot with a revolver at Moin Anees, in fact the said Moin Anees escaped on that particular time. In that regard deceased has lodged a complaint against Mohammed Asif and others. Having this ill -will the said Mohammed Asif and others have threatened said Mohammed Anees and Syed Fayazuddin with dire consequences of giving supan to kill them. In this regard it is alleged that on 07 -11 -2014 at about 10.30 p.m., when the complainant came near the house of one Bandan, he observed one Muddasar Abdul Samad Qureshi, Altaf, Rajahmed Managuli and others were talking near the bus -stand. At that time they observed the complainant's sisters son Syed Fayazuddin S/o. Mahaboobquadri Mushrif came in his motor cycle and he was talking with his friends near Datri Masjid on a road, at that time two cars came near them and from the said cars about nine persons named in the complaint, got down and three - four persons caught hold said Syed Fayazuddin and surrounded him and in fact some of the accused persons have fired at the instance of said Mohammed Asif towards Syed Fayazuddin, in fact Syed Fayazuddin went near the house of Bandari and fell down due to Gun shot injuries, all the accused persons have also assaulted with their hands and legs and some persons also threatening the people, public at large so as to enable the persons who were assaulting and firing towards the injured. On these allegations a complaint came to be lodged and the police have registered the case. Learned counsel appearing for petitioner Sri. Diwakar vehemently contended that the motive attributed to the accused persons and the to the incident taken place is not at all based on materials on record. He contended that the deceased was neither an accused, nor complainant or a witness in Crime No. 179/2011 on the file of Golgumbaz police station, Vijayapur, which is the incident made basis to create a motive for this case. Secondly he contended that the name of the petitioner is not at all there in the first information report, but subsequently his name was surfaced in the further statement of the complainant and even in the further statement of the complainant and the statement of the so called eyewitnesses C.W.s 11 to 19, if they are perused meticulously there is no role attributed to this man who has caused any injuries to the deceased or used chopper for the purpose of committing any offence. Further added to that, he also contends that post mortem report does not disclose any injury caused by any chopper on the deceased and also he contends that no chopper has been recovered or any weapon recovered at the instance of this petitioner. It is the contention that the complainant and the eyewitnesses time and again improved the case of the prosecution in order to implicate as many rival persons as possible into the crime. Therefore looking to the above said facts and circumstances when there is no specific allegation except that he was present and abated the commission of offence, directing one of the accused to shot the deceased, nothing is there on record to come to a definite conclusion that he also participated in the crime with any object or intention to do away with the life of the deceased. He further contended that the petitioner is a sole bread earning person of his family, he is ready and willing to abide by any of the conditions that may be imposed by this Court, hence he pleaded for enlargement of the petitioner.

(3.) LEARNED Addl. State Public Prosecutor strenuously contended that this Court considering facts of the case while disposing the bail petition of one Suhail and Haji Mastan who are arrayed as accused Nos. 17 & 18 as per the charge sheet who stand on the same footing as that of this petitioner has already rejected the petition of those accused persons considering their overt acts and their participation in the commission of offence. Therefore on the ground of parity, this petition is also liable to be dismissed. He further contends that immediately after the first information report on the same day without any further delay the police have recorded the further statement of the complainant and the eyewitnesses who have categorically stated about the participation of this petitioner and that his specific role in the commission of the offence. Therefore at this stage, the Court cannot bifurcate role of this petitioner from that of the other accused person who were released, some of the other accused persons were released on bail, because their presence was not there on the spot and allegations against them was only conspiracy and abatement absenting themselves in the scene of offence. Though there is no recovery at the instance of the accused. Nevertheless the statement of the witnesses cannot be brushed aside at this stage. Therefore he pleaded for rejection of this petition.