Sri.Rakesh @ Rakhi Son of Tayappa Vs State of Karnataka

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^{T H} DAY OF NOVEMBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE P.G.M.PATIL

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CRIMINAL PETITION NO.101289/2019

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BETWEEN:

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SRI RAKESH @ RAKHI SON OF TAYAPPA AGED ABOUT: 28 YEARS, OCC: PAITING WORK, RESIDING AT MANTUR ROAD, NEAR VASANNA CHURCH, HUBBALLI-580020.

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SRI SAYYED ALI SON OF NOOR AHMMAD MULGUND, AGED ABOUT: 24 YEARS, OCC: AUTO RICKSHAW DRIVER, RESIDING AT MANTUR ROAD, BYALI PLOT, NEAR ABUBAKAR MOSQUE, HUBBALLI-580020.

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... PETITIONERS (BY SRI TOMY SEBASTIAN, SENIOR COUNSEL FOR SRI U G KATTIMANI, ADVOCATE.)

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AND:

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STATE OF KARNATAKA BY KESHAVAPUR POLICE STATION HUBBALLI, REP/BY STATE PUBLIC PROSECUTOR,

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THE HIGH COURT OF KARNATAKA, BENCH DHARWAD.

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... RESPONDENT

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(BY SRI RAJA RAGHAVENDRA NAIK, HCGP.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN SPL. SC/ST NO.12/2018, PENDING ON THE FILE OF THE II-ADDL. DIST. & SESSIONS & SPECIAL JUDGE, DHARWAD, IN CRIME NO.7/2018, FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 148, 120(B), 109, 302, 201 READ WITH SECTION 149 OF IPC, SECTION 3(2)(V) OF SC AND ST (PREVENTION OF ATROCITIES) ACT AND SECTION 25(1)(A) OF INDIAN ARMS ACT, ETC.,.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This is a bail petition filed under section 439 of Cr.P.C., seeking to enlarge the petitioners on bail, in Crime No.7/2018 of Keshwapur Police Station, Hubballi, registered for the offence punishable under sections 143, 147, 148, 120-B, 302, 109 read with section 149 of IPC and under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and

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under section 25(1)(A) of Indian Arms Act, now pending in Special (SC/ST) Case No.12/2018, on the file of II Addl. District and Sessions Judge and Special Judge, Dharwad.

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The case of the prosecution in brief is that, the respondent police have filed charge sheet against accused persons on the allegations that on 25.1.2018 at about 8.30 p.m., the accused persons formed an unlawful assembly in pursuance of their common object, accused Nos.8 and 9 made a conspiracy with accused No.1 and 4 to murder one Kumareshwar Pillai, who belong to SC/ST community and accused No.10 has financed to purchase a car, accused No.11 gave his vehicle to watch the said Kumareshwar Pillai, accused No.4 without having valid licence handed over pistol and bullets to accused Nos.5 to 7 to commit murder of said Kumareshwar Pillai. It is

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further stated that accused Nos.1 to 3 and 5 to 7 conspired for the murder of Kumareshwar Pillai.

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On 25.1.2018 at about 8.30 p.m., when the said Kumareshwar was going on his

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motorcycle, the accused persons drove their car, chased his motorcycle and hit against the motorcycle and made him to fall on the ground. Thereupon, accused Nos.1 to 3 and 5 to 7 attacked the said Kumareshwar with axe, talwar and knife. Accused No.1 assaulted the deceased with axe, accused Nos.2, 3, 5 and 6 assaulted him with talwar and accused No.7 assaulted with knife over the head, shoulder, back, hand and other parts of the body of the said Kumareshwar with

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the intention to commit his murder, thereby caused his death. It is further submitted that the accused persons with an intention of causing disappearance of the evidence of the offence, thrown away axe, talwar and knife into

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Tungabhadra river near Harihar and Benni

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Channel near Navalgund. The car was parked in a bush situated at National Layout, Mantur Road, the scooter was parked at Benni Channel and 3 pistols and 8 bullets were kept where the construction of masjid was going on between the bricks near National Layout, Mantur Road.

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The petitioners who are arraigned as accused Nos.2 and 3 in the charge sheet have stated that they had applied for grant of bail before the Special Court, which was rejected by order dated 19.2.2019. The evidence of eye witnesses identifying the petitioners as among the assailants, while petitioners were in police custody is not incriminating evidence as against the accused, as admittedly the accused were strangers to the eye witnesses and none of the eye witnesses have given any description except the approximate age of the perpetrators. In such a

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situation investigating officer should have made

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sure that the test identification parade was conducted to identify the accused by the witnesses. Since the accused were already shown to the witnesses, the scope of test identification parade is ruled out in order to corroborate the evidence of witnesses in the Court. There is no evidence of eye witnesses identifying the petitioners as among the assailants of the deceased.

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They have further stated that evidence

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of recovery of two swords from the petitioners is not incriminating as the alleged weapons were recovered from Tungabhadra river in Harihar and the weapons were not stained with human blood much less the blood of the deceased. In fact, 17 persons were named as suspects in the complaint, among them only 3 of them were arraigned as accused in the charge sheet. The petitioners are

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permanent residents of Hubballi having vested interest and will not flee from justice and they undertake to abide by the conditions which may be imposed by the Court and ensure their attendance before the Court by offering adequate surety.

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The learned Government Pleader has

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filed statement of objections opposing the bail petition. It is stated that during the course of investigation the respondent police have visited the spot, the statement of eye witnesses and other circumstantial witnesses have been recorded. The main eye witnesses in the case are cited as CW.19 to 22. They are staying near the place of incident. Their statements would clearly go to show that the accused persons dashed their car to the two wheeler driven by the deceased and when the deceased fell down, the accused persons assaulted him with talwar and axe. It is also stated that

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accused Nos.2 and 3 were identified by the eye witnesses stating that they assaulted the deceased with talwars, which were seized from Tungabhadra river at their instance. Accused Nos.2 and 3 voluntarily surrendered themselves before the jurisdictional Court on 30.1.2018 and thereafter the investigating officer made a requisition for their police custody and pursuant to the police custody of these accused, their voluntary statements were recorded and at their instance the weapons were recovered.

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It is also further stated that the bail application filed by co-accused namely accused Nos.4 and 7 have been rejected by this Court and therefore the petitioners herein are not entitled for bail as co-accused having the same overtacts have already approached this Court and their applications were rejected on merits.

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Heard the learned counsel for the

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petitioners and the learned Government Pleader.

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It is settled principle of law that at the time of considering the bail petition, this Court cannot hold a mini trial in order to ascertain the prima-facie case or involvement of the accused persons in the crime. Admittedly the investigation is completed and the charge sheet has been laid before the Special Court. It is also not disputed that accused No.4 Sharanabasav had approached this Court seeking bail under section 439 of Cr.P.C. in Crl.P.No.101278/2018 and accused No.7 Dattu @ Dattatreya had approached this Court under section 439 of Cr.P.C. by filing Crl.P.No.101036/2019 and both the said criminal petitions were dismissed. The learned Government Pleader submitted that the case of the petitioners is in par with the case of the accused Nos.4 and 7 whose bail petitions were rejected on merit.

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The learned counsel for the petitioners submitted that as the culprits were strangers to the eye witnesses, conducting of test identification parade is ruled out in order to corroborate the evidence of the witnesses before the Court. On this aspect, the learned Government Pleader relying on the judgment in the case of

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Navaneethakrishnan vs. State by Inspector of Police, (2018) 16 SCC 161 , submitted that test identification parade is not a substantive evidence, but it is a corroborative piece of evidence. The Apex Court in the said case has held that the test identification parade is not a substantive evidence but it is only a corroborative piece of evidence.

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The learned Government Pleader has also relied on the judgment in the case of Sheikh Sintha Madhar alias Jaffer alias Sintha and others vs. State represented by Inspector of

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Police, (2016) 11 SCC 265 , wherein the Apex Court has held as follows:

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Held, purpose of TIP is to ensure that investigation is going on right track and it is merely a corroborative evidence – Actual identification must be done in court and that is substantive evidence – Also, there is no invariable rule that two accused persons cannot be made part of same TIP – Joint TIP would thus, in no manner, affect validity of TIP – If accused is already known to witness, TIP does not hold much value and it is identification in court, which is of utmost importance – Instant case of conspiracy resulting in murder of doctor – Herein, evidently, there is no inordinate delay in conducting TIP – As and when accused were arrested, within reasonable time they were produced for TIP – PW1 (daughter of deceased) identified all accused in court as well as in TIP – Penal Code, 1860 – Ss. 120-B/302, 148 and 302 – Evidence Act, 1872, S.9.

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Therefore in view of the principles laid down in the case stated supra, non conducting of test identification parade in the present case cannot be held as a lacuna or it take away the right of the prosecution to prove the identity of the accused before the Court through the eye witnesses.

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It is not disputed that the petitioners surrendered before the jurisdictional Magistrate and they were secured to the police custody of the investigating officer and on their voluntary statement and on their information the weapons were recovered at their instance. The arguments addressed by the petitioners counsel could be a good defence but at this stage this Court cannot record any finding on the recovery of the weapons as to whether human blood stains were not found on those weapons and therefore it will not assist the case of the prosecution.

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Considering the entire material on

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record, this Court holds that there is a prima facie case against the petitioners for the alleged offences. The case of the petitioners is on par with the case of accused Nos.4 and 7 whose bail applications were rejected by the co-ordinate bench of this Court on consideration on merits. Therefore in order to maintain parity also, the bail petition filed by the present petitioners is liable to be rejected. Accordingly the bail petition is rejected.

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Sd/-

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JUDGE

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Mrk/-

Sri.Rakesh @ Rakhi Son of Tayappa v. State of Karnataka

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Sri.Rakesh @ Rakhi Son of Tayappa v. State of Karnataka

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