MUHAMMED THAJUDDIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein, who is accused No. 8 in Crime No. 676/2009 of Kasargod Police Station registered for offences punishable under Sections 143, 147, 148, 448, 354, 324, 364(A), 302 read with Section 149 of IPC, has filed this application seeking anticipatory bail, by invoking the jurisdiction conferred under Section 438 of the CrPC, apprehending arrest in the said crime. The allegations raised in the aforementioned crime registered on 30/12/2009 are that on 30/12/2009, at 12.00 Hours, the accused viz., Patel Naufal, Yasin, Risal and 12 others, who were identifiable, had formed themselves into an unlawful assembly and trespassed into the rental quarters of the complainant (Gafoor) at Perumbala Road, Nainmarmoola, Kasaba gramam, Kasargod with deadly weapons and they caught hold of the wife of the complainant, thereby outraged her modesty and inflicted injuries to the complainant's brother, Haneefa, by assaulting with deadly weapons and kidnapped Dawood, the younger brother of the complainant, in a Maruti car. That the accused persons carried the said Dawood to different places and inflicted him injuries, which resulted in the death of Dawood, etc. During the course of the investigation, other offences under Sections 323, 120B and 212 of IPC were added. Annexure-A is the FIR in the above said crime and it is averred that the petitioner is not named as an accused in the FIR and that there is no reference about the petitioner in the first information statement or first information report. Further it is averred that during the inquest held on the next day, viz., 31/12/2009, the detailed statement of the first informant, Gafoor, was recorded and the statements of two other witnesses were also recorded and that there is no reference about the petitioner anywhere in Annexure-C inquest report dated 31/12/2009. According to the petitioner, the non-mentioning of his name in Annexure-A FIR and Annexure-C inquest report assumes importance in this case. The aspects in this regard projected in the application are as follows:-That the residence of the first informant, Gafoor, the deceased Dawood, (who is the first informant Gafoor's brother) and their parents and their siblings, is just opposite to the house of the petitioner, where he was born and brought up and that only a Panchayat road is between the two and that the petitioner was intimately known to the first informant, Gafoor, deceased Dawood and other members of the family from his childhood and that the members of the two families are very close and friendly and that the petitioner and the deceased Dawood were thick friends until the death of Dawood and that if the petitioner was present anywhere near the scene of occurrence and if the petitioner had any role, then the first informant, Gafoor, who is said to be the person, who has allegedly witnessed the incident in question, could have certainly noted the involvement of the petitioner, who is known to the first informant from child hood days and that the petitioner would have been named by the first informant, Gafoor, in Annexure-A Fl statement dated 31/12/2009, or at least in the detailed statement given by the first informant, Gafoor, incorporated in the Annexure-C inquest report. The petitioner was subsequently arrayed as accused No. 8 in the aforementioned crime on the basis of a report of the Investigating Officer made on 06/01/2010. The gist of allegations in the first information statement is that about one and-a-half month prior to the date of the incident, viz., 30/12/2009, the above said Dawood (brother of the first informant, Gafoor) robbed an amount of Rs. 16.3 lakhs from one Muhammed, which was said to be the proceeds of hawala transaction of one Faizal Patel, who is the brother of accused No. 1 (Patel Naufal) and the said hawala money was entrusted with the said Muhammed for distribution and that the above said money that was robbed by Dawood from Muhammed, was entrusted with the said Muhammed for distribution. That a settlement talk was arranged in the rented quarters of the first informant Gafoor (Dawood's brother) on 30/12/2009 to settle the disputes relating to the above amount robbed by Dawood. For this, Dawood and his another brother, Muhammed Haneefa had come to the quarters of Dawood's brother (Gafoor, first informant) and by about 12.30 p.m., three persons named in the FIR and identifiable 12 others trespassed into the quarters and one of them attacked Muhammed Haneefa by inflicting a cut injury on his head and some others caught hold of the hands of the wife of the first informant Gafoor and that her dress was torn and then assaulted Dawood and forcibly took Dawood in a Maruthi Swift car and drove away him and other assailants left the place in two cars and by about 3.30 p.m. somebody contacted the first informant Gafoor over phone and informed him that a dead body has been brought to Poinachi Century Hospital by three persons and they escaped after leaving the dead body at the hospital, etc. and the first informant, Gafoor went to that hospital and found that it is the dead body of his brother, Dawood, etc.

(2.) It is the case of the petitioner that he has been falsely implicated as an accused in the aforementioned crime only due to the rivalry of one Basheer, who is said to be another brother of the deceased Dawood and that the said Basheer has a bad character with criminal back ground and was having very close connection with then Circle Inspector of Police, Kasargod, as the said Basheer was acting as his informant and that a few days prior to the incident, the petitioner and his brother had a skirmish with the said Basheer for the reason that the said Basheer had misbehaved towards the sister of the petitioner. That the sister of the petitioner is married to a relative of accused No. 1 and that it is presumably on account of these aspects, that the petitioner has been falsely arrayed as an accused (A8) in the above said crime. It is further averred that the petitioner has been working in Gulf countries from July 2010 and that now he has returned for good on 02/07/2014 and that apprehending arrest in connection with the above said crime and consequent detention and torture, the petitioner had filed application for anticipatory bail before the Sessions Court, Kasargod, as Crl M.P. 2776/14, which has been dismissed as per Annexure-B order dated 23/07/2014 by the said Sessions Court. It is in the back ground of the aforementioned facts and circumstances that the petitioner has instituted this application by invoking the remedy conferred under Section 438 of the CrPC, for the relief of pre-arrest bail.

(3.) The petitioner urges that he is innocent of all the allegations and he has been falsely implicated as accused. One of the main submissions made on behalf of the petitioner is that the deceased Dawood, his brother, the first informant Gafoor and all other family members of Gafoor and Dawood intimately knew the petitioner, his name and other details from his childhood as he is living in the immediate vicinity. That the specific case of the first informant in Annexure-A is that three named persons and 12 other identifiable persons are the persons, who had come to his quarters and had indulged in the aforementioned offences on the fateful day and that if the petitioner was actually present among one of such persons, who had entered the quarters of the first informant Gafoor, then certainly the first informant could have specifically named the petitioner herein also in the first information statement given on 30/12/2009 or at least he would have named the petitioner in the detailed statement given by the first informant Gafoor, in Annexure-C inquest report prepared on the next day (viz. 31/12/2009) and that therefore the omission of the name of the petitioner in the initial stage of registration of the crime as per Annexure-A FIR, assumes great significance and importance and that the only reasonable inference from the above facts and the omission of his name in the FIR is that the petitioner was not among the assailants on the day of the alleged incident and that he is falsely arrayed as accused on later stage on extraneous consideration at the instance of Basheer (deceased Dawood's brother) as stated earlier. It is further urged that in the very nature of the allegations there is nothing incriminating to be recovered at the instance of the petitioner and in the circumstances, the custody or custodial interrogation of the petitioner is unwarranted and unnecessary. That the petitioner has absolutely no information with him about the alleged incidents to be passed on to the Police even if he is detained and that he apprehends torture, if he is subjected to custodial detention, etc.