High Court of Karnataka disposed of a bail petition under Section 439 Cr.P.C. filed by an accused charged with murder and common intention, rejecting arguments regarding witness inconsistencies and parity.
Petition for bail dismissed; order holds accused actively participated in murder and cannot go on bail.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION No.912/2021
BETWEEN:
Makmur Pasha S/o.Abdul Rehaman aged 24 years r/o.2nd Cross, Baskar Layout Shivamogga-577 201 ..Petitioner
(By Sri K.V.Sateeshchandra, Advocate)
AND:
State by Sub-Inspector of Police Tunganagar Police Station Shivamogga-577 201 Rep.by SPP, Karnataka High Court Building Bengaluru-560 001 ..Respondent
(By K.Nageshwarappa, HCGP)
This Criminal petition is filed by the advocate for the petitioner under Section 439 of Cr.P.C. praying that this Hon’ble Court may be pleased to enlarge the petitioner on bail in CR.No.247/2020 (CC.No.826/2020) registered by Tunganagar Police Station, Shivamogga
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for the offences punishable under Sections 302 and 120B r/w. Section 34 of IPC.
This Criminal petition coming on for orders this day, the Court made the following:
O R D E R
This petition is filed by accused No.2 under
Section 439 of Cr.P.C. for granting regular bail in Crime No.247/2020 registered by Thunganagar Police Station, Shivamogga for the offences punishable under Sections 302, 120B r/w. Section 34 of IPC.
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business and there was quarrel between them prior to the incident. Subsequently, on 3.6.2020 accused No.4 came to the house and took the deceased along with him. On the same day, at about 7.00 p.m. she came to know that the accused were assaulting his son. Immediately, she rushed to the spot and on seeing her, accused No.1 and others ran away from the spot and she saw that her son sustained injuries and died. During investigation, the police arrested this petitioner along with other accused and on 6.6.2020 he was remanded to judicial custody. Thereafter, this petitioner approached the Sessions Court for grant of bail which came to be rejected. Hence, he is before this Court.
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even otherwise there is no overt act attributed against him. There are eye witnesses to the alleged incident who have stated different story and there is inconsistency in the statement of the witnesses. Even as per the allegation made by the prosecution, this petitioner said to have held legs of the deceased. But some of the witnesses have stated that accused No.2, the present petitioner was holding hands of the deceased, some of them have stated that he was holding legs of the deceased and some of them have stated that he also stabbed the deceased. There are material contradictions in the statement of the eye witnesses. Accused No.4 has already been granted bail by the Sessions Court and on the ground of parity, this petitioner is also entitled to be released on bail. He is in custody for more than nine months. The deceased was a habitual offender and so many cases have been registered against him. There are no bad antecedents
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against this petitioner. He is ready to abide by the conditions to be imposed by this Court. Hence, he prayed for allowing the petition.
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committing similar offences and abscond from the case. Leaned HCGP has also submitted that there are eye witnesses to the alleged incident, who have stated that accused No.2 was holding legs and also stabbed the deceased. There are multiple injuries sustained by the deceased which confirmed by the eye witnesses. Hence, he prayed for dismissal of the petition.
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the hands of the deceased and accused No.1 stabbed the deceased. Accused No.3 took knife and also stabbed the deceased. Of course there are contractions in the statement of the eye witnesses. Some of them have stated that accused No.2 was holding hands of the deceased, some of them have stated that he was holding legs and some of them have stated that he also stabbed the deceased along with accused Nos.1 and 3. Of course, there may be material discrepancies in their statement. Merely because there are discrepancies in their statement, their evidence cannot be disbelieved and appreciated by the trial Court. During the bail application and benefit of doubt cannot be given before the trial by the trial Court. As per the statement of the eye witnesses, the present petitioner was holding legs of the deceased. If he has not held legs of the deceased, the deceased could have escaped from the assault of accused No.1 who stabbed
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the deceased, thereby he has actively participated in the commission of offence. There is possibility of the deceased to run away from the stab and escaped from the accused if the present petition has not held the deceased. He facilitated accused No.1 to stab the deceased. Accused No.3 also held hands of the deceased thereby accused No.1 was successful in committing the murder of the deceased. At this stage, it cannot be said that accused No.2, the present petitioner was not having common intention to commit murder of the deceased. Merely because the deceased was a habitual offender that itself is not a ground to grant bail to this petitioner. Accused No.4 has not actively participated in commission of the offence, except taking the deceased to the spot. Hence, ground of parity is not applicable to the present petitioner. There is every chance of he committing similar offences
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and absconding from the case and tampering the witnesses cannot be ruled out.
Accordingly, the petition is dismissed .
SD/JUDGE
*ck/-
3 issues framed by the court
Whether the petitioner is entitled to regular bail under Section 439 Cr.P.C. in a charge of murder with common intention.
Whether the discrepancies in eyewitness statements regarding the accused's role warrant letting the petitioner out on bail.
Whether the ground of parity ground applies since another accused has been granted bail.
2 provisions across 2 enactments
Makmur Pasha
State
K. NATARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
