Allowed

Mohammed Ismail and Ors. v. the State through

Karnataka HC4 Feb 2013CRL.P/15029/2013

Case brief

AI extract

What is this about?

In a bail petition under Section 439 Cr.P.C. for murder charges, the High Court of Karnataka allowed the petitioners' bail, holding that the theory of murder could not be established merely by last-seen evidence and the recovery of unexamined weapons.

What did the court decide?

Petitioners enlarged on bail on furnishing self-bond with surety of Rs.1,000 each, including conditions against tampering and periodic reporting to police.

Mohammed Ismail and Ors. Vs the State through — Murder and Culpable Homicide | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 4^TH DAY OF FEBRUARY, 2013

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BEFORE

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THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION NO.15029 OF 2013

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BETWEEN:

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Mohammed Ismail, S/o. Mohammed Khaja Miyan Moramgpalli, Aged 30 years, Occupation: Auto Driver, Resident of Venkatpuram Mandal Sadashivepet, District: Medak (AP).

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Mohammed Salahuddin, S/o. Mohammed Hussain, Aged 28 years, Occupation: Hotel work and Agriculture.

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Kusum Bi W/o. D. Allabakash, Aged 32 years, Occupation: Working at IBM Software Company

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Phatri @ Mahboob, S/o. Mohammed Hussain, Aged 22 years, Occupation: Student

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and Hotel work.

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Petitioners 2 to 4 are all Residents of Isojipet Palkal Mandal, Taluk: Andola, District: Medak (AP). … PETITIONERS.

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(By Shri Anil Kumar Navadgi, Advocate)

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AND:

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The State through Bagdal Police Station, Taluk and District: Bidar. … RESPONDENT.

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(By Shri S.S. Aspalli, Government Pleader)

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This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioners on bail in Crime No.98/2011 of Bagdal Police Station of District Bidar which is now pending on the file of the II Additional JMFC, Bidar, which is registered for the offence punishable under Sections 302, 201 of Indian Penal Code.

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This petition coming on for Orders this day, the Court made the following�

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O R D E R

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Heard the learned counsel for the petitioners and the

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learned Government Pleader.

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The facts are as follows:

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That on 19.10.2011, one Lalappa had been to Manahalli

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village on his private work, when he heard that there were two dead bodies lying in the field of one Mohammed Qureshi, within the limits of Manahalli village. He went and saw the dead bodies with injuries on their neck and other parts of their

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body and lodged a First Information Report with the Bagdal Police Station, Bidar Distict, about the unidentified bodies lying as aforesaid and also stated that they were possibly murdered in the intervening night of 18/19-10-2011. Thereafter, the identification of the bodies was sought to be made. It was almost after two months that the relatives of the deceased namely Ragavalu, Gangamma and N. Anjanayalu visited the police station and identified the photographs of the dead bodies

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to be that of B. Mallesham and N. Venkatesh, their relatives. They also indicated that they suspected the present petitioners of having committed the offence in the backdrop that the deceased N. Venkat @ Venkatesh had an illicit relationship with one Yasmeen, the daughter of petitioner No.3 Kusum Bi and in this regard, there was ill-will between the petitioners on the one hand and the deceased on the other. Since the illicit relationship continued in spite of the accused warning Venkatesh not to have anything to do with Yasmeen, therefore it is alleged that the accused petitioners had hatched a plan to eliminate Venkatesh. It is the further case of the prosecution that Venkatesh was deceived into believing that the petitioners would get him married to Yasmeen and therefore, had brought him in an auto rickshaw and committed his murder as well as that of his friend B. Mallesham. Thus, the police have pieced together the events on the basis of statements made by several witnesses who had last seen the deceased moving along with the petitioners and further, on the extra judicial confession of

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the petitioners, weapons have been recovered and therefore, there was strong circumstantial evidence against the petitioners. The petitioners having approached the court below for bail, the court below has rejected the same on the footing that the police are in the process of collecting evidence and that there was a prima facie case made out against the petitioners. Further, that having regard to the death of two persons, the offence was of a very serious nature and hence, the court below opined that the petitioners may abscond and destroy the evidence of the prosecution and therefore, has thought it fit to reject the bail petitions. It is in this background that the petitioners are before this Court.

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The learned counsel for the petitioners would submit

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that except the alleged circumstantial evidence sought to be foisted against the petitioners, there are no eye-witnesses to the incident of the petitioners actually having committed any offence. The further theory was that there was enmity between

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the petitioners and the deceased Venkatesh. But however, they had brought Venkatesh and his friend away to Manahalli village in an auto rickshaw on the pretext of resolving the issue insofar as the illicit relationship that Venkatesh had with Yasmeen and that they wanted to finalize the marriage talks insofar as Yasmeen and Venkatesh are concerned and had committed the murder. This is to be established at a full-fledged trial. Merely on the suspicion that the petitioners may have been involved in the murder, could not by itself justify the detention of the petitioners till after the trial and therefore, seeks enlargement of the petitioners on bail on such conditions as this court may impose.

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While the learned Government Pleader would

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vehemently oppose the bail petition and would submit that in the face of the statements of several persons who had seen the petitioners along with the deceased and thereafter the deceased having been murdered in the most gruesome manner apart from

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the weapons used in the murder having been recovered from the custody of the petitioners and the same having been recovered at their instance, the prosecution has made out a strong prima facie case. The circumstantial evidence that is available against the petitioners is unimpeachable and therefore, to enlarge the petitioners on bail at this point of time notwithstanding the strong case that the prosecution has made out by virtue of the fact that the petitioners were last seen with the deceased and the recovery of the weapons, would certainly disentitle the petitioners to bail and seeks that the petition be dismissed.

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Having regard to the facts and circumstances, it is the case of the prosecution that there was an illicit relationship between one of the deceased Venkatesh and Yasmeen, the daughter of Kusum Bi, the third petitioner herein. This is a fact that would have to be established at the trial. So also, the question whether there was enmity between the petitioners and

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the accused. This leads us to the other peculiar circumstance that, if indeed there was enmity between Venkatesh and the petitioners, it is unusual that Venkatesh and his friend had accompanied the petitioners, as per the say of several witnesses who have made their statements in that regard and to have played into the hands of the petitioners who have murdered them in cold blood, which cannot be established merely by the say of the witnesses who had last seen them together or from the recovery of the weapons from the custody of the petitioners. There is no material on record to indicate that the weapons so recovered have been subjected to any kind of scientific examination in order to ascertain that they were indeed the weapons used in the incident, in the absence of which the mere recovery of weapons by itself would not implicate the petitioners. Therefore, the prosecution would have to establish its case at a full-fledged trial and to incarcerate the petitioners indefinitely on the basis of the theory put forward by the prosecution and on the basis of material that is placed on

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record, is no justification in denying bail to the petitioners. Accordingly, the petition is allowed.

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Petitioners 1 to 4 shall be enlarged on bail on each of

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them furnishing a self-bond for a sum of ��0,000/- with a solvent surety for a likesum, to the satisfaction of the trial court.

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The petitioners shall not leave the jurisdiction of the Court below, without the leave of the court.

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The petitioners shall offer all co-operation in the investigation of the offence.

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They shall not in any manner, seek to tamper with the prosecution evidence.

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Since the charge-sheet is yet to be filed and the police

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are to complete their investigation, it is appropriate that the petitioners report before the Bagdal Police Station on every

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Saturday between 10.00 a.m. and 4.00 p.m, till the charge-sheet

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is filed by the jurisdictional police.

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Sd/JUDGE

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Mohammed Ismail and Ors. v. the State through

Case brief

What is this about?

What did the court decide?

Mohammed Ismail and Ors. v. the State through

Case brief

What is this about?

What did the court decide?

What the court decided

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