Wahid Pasha @ Wahid @ Fahid Pasha Vs State by

WAHID PASHA @ WAHID @ FAHID PASHA S/O AKRAM PASHA, AGED ABOUT 28 YEARS, R/AT NO.372/B, 11^TH CROSS, PIPELINE ROAD, ILIYAZ NAGAR, KUMARSWAMY LAYOUT, BENGALURU.

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…PETITIONER

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(BY SRI. MURALIDHAR S.R., ADVOCATE)

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AND:

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STATE BY KUMARASWAMY LAYOUT POLICE STATION …RESPONDENT

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Digitally signed by LAKSHMI T Location: High Court of Karnataka

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(BY SMT. ASMA KAOUSER, ADDL.SPP)

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THIS CRL.P IS FILED U/S 439 OF CR.PC (FILED U/S 483 BNSS) PRAYING TO PASS AN ORDER ENLARGING THE PETITIONER ON BAIL IN CR.NO.365/2023 FOR THE ALLEGED OFFENCE P/U/S 307, 323 R/W SEC. 34 OF IPC SUBSEQUENTLY REGISTERED IN C.C.NO.1776/2024 UPON FILING THE CHARGE SHEET FOR THE ALLEGED OFFENCES P/U/S 307, 302, 323 R/W SEC. 34 OF IPC AND THEREAFTER COMMITTED TO THE SESSIONS COURT IN S.C.NO.468/2024, PENDING BEFORE LXVII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-68) WITH REASONABLE CONDITIONS.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL ORDER

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Petitioner / accused No.1 has preferred this petition to enlarge him on bail in Crime No.365/2023 of Kumaraswamy Layout Police Station, Bengaluru City, registered for offences punishable under Section 307, 323 read with Section 34 of IPC.

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Heard the learned counsel for petitioner, learned Additional SPP for the State and perused the material on record.

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First Information Report is registered on a complaint lodged Mohammed Moin, the brother of deceased-Mohammed Suleman, against four unknown persons. The complaint averments reveal that on 23.10.2023 at about 10:30 p.m., one Thowphik Ahamadh, a relative of the complainant had quarrelled with few persons and at about 12:30 in the midnight, those persons came in search of him near his house. The first informant along with his deceased brother and others went near the

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house of Thowphik Ahamadh and they saw the accused quarrelling. When they tried to pacify them, they started assaulting the deceased. When the first informant intervened, they assaulted on his face and lips and caused injuries to him. One of the accused stabbed the deceased on his abdomen and back and caused severe injuries and all of them ran away from the spot.

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Accused Nos.1 to 3 came to be arrested on 25.10.2023. At the instance of accused No.1, a blood stained knife was seized. The statement of the eye witnesses are recorded. The victim, who sustained severe injuries, succumbed to the injuries while undergoing treatment on 31.10.2023. On completion of investigation, charge sheet is filed against accused Nos.1 to 3 for offences punishable under Section 307, 323, 302 read with Section 34 of IPC, arraigning the petitioner as accused No.1.

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It is contended by the learned counsel for petitioner that, the petitioner is innocent and he is not

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involved in any offence much less the one now alleged against him. There are discrepancies in the statements of eye witnesses. Their statements are recorded belatedly after the arrest of the accused, only to suit the prosecution case. It is further contended that the FIR was registered against Four unknown persons, whereas, the charge sheet is filed only against Three accused and implication of petitioner is on a mistaken identity. It is further contended that accused Nos.2 and 3 are already enlarged on bail, whereas, the petitioner is in judicial custody since 25.10.2023 and now the investigation is completed and charge sheet is filed. He has therefore sought to enlarge the petitioner on bail by imposing any conditions.

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Per contra, Additional SPP has contended that

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CWs.1, 2 to 4 and 6 to 11 are the eye witnesses to the incident. Their statements clearly reveal that it was the petitioner who stabbed the deceased on his abdomen and

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the injuries mentioned in the postmortem report also tallies with the statements of eye witnesses. She

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contended that there is a prima-facie case against the petitioner and therefore, he is not entitled for bail. Accordingly, she has sought to dismiss the petition.

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The incident took place on 24.10.2023 at about 00:30 hours. The first informant is the brother of the deceased and he is also an injured in this case. His presence at the spot cannot be disputed at this stage. Apart from him, CWs.2 to 4 and 6 to 11 are also eye witnesses. I have perused their statements wherein, they have clearly stated that it was this petitioner who stabbed the deceased with a knife. As per post mortem report, the victim died due to complication following stab injuries over abdomen:

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A sutured stab wound with clean cut margins measuring 4cms present over left side of front of abdomen, 32cms below from the top of left shoulder.

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A sutured stab wound with clean cut margins measuring 2cms present over the left iliac region 4cm above iliac spine.

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A sutured stab wound with clean cut margins measuring 3cms present over the upper aspect of left gluetal region.

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Abrasion measuring 3cms X 2cms present over bridge of the nose.

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The contention of the learned counsel for

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petitioner that the statements of the eye witnesses are recorded belatedly after the arrest of the accused and therefore, their statements cannot be believed to hold that the petitioner is innocent of the alleged offence, cannot be accepted at this stage. All the eye witnesses have categorically stated that this petitioner has stabbed the deceased on his abdomen with a knife. A blood stained knife is also recovered at the instance of the petitioner. Admittedly, the accused are strangers to the first informant and therefore, their names were not mentioned in the FIR. After the arrest of the petitioner he has been identified by the first informant as well as other eye witnesses.

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Learned counsel for petitioner would contend

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that the incident has taken place in a sudden quarrel and

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in a free fight between two parties armed with deadly weapons, and therefore, the nature of offence does not fall under the ingredients of Section 302 of IPC.

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Learned counsel has relied on the following

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judgments.

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i. DHARMAN V/S STATE OF PUNJAB reported in 1957 CRI.L.J.420

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ii. MAINA BANSFOR V/S THE STATE OF JHARKHAND reported in 2012(3) AIR JHAR R 417

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iii. SUKHRAM MUNDA V/S STATE OF JHARKHAND reported in 2012 (4) AIR JHAR R 314 : : (2012) 4 JCR 544 (JHA)

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iv. ALKA GOPINATH DHANAWADE VS STATE OF MAHARASHTRA reported in 2013 (4) ABR 121 : : (2014) 3 BOMCR(CRI) 724

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v. BABULAL MARANDI & ANOTHER V/S STATE OF JHARKHAND reported in 2014 (1) AJR 285

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vi. BIRBAL BANS MAHLI V/S STATE OF JHARKHAND reported in 2015 (2) AJR 605

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vii. SUKHLAL SINGH V/S STATE OF JHARKHAND reported in 2016 (2) AJR 572

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viii. SONU DAHIYA V/S STATE OF NCT OF DELHI reported in 2015 (2) ADR 608

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ix. UMESH V/S STATE OF M.P. reported in AIRONLINE 2018 MP 276

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x. SAGAR AJIT THAKUR V/S STATE OF MAHARASHTRA reported in AIRONLINE 2020 BOM 779

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xi. NADIYA DASHRATHBHAI RAMANBHAI V/S STATE OF GUJARAT reported in AIRONLINE 2021 GUJ 1774

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Throughout, the learned counsel argued that petitioner was innocent and he was not at all involved in the commission of the offence and it is a mistaken identity. However, while dismissing the petition, he relied on catena of judgments contending that it was a free fight and the petitioner has committed the offence in a quarrel and therefore, the ingredients of Section 302 of IPC are not made out.

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The above judgments are rendered after

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conclusion of trial wherein the Hon'ble Supreme Court considering the entire evidence on record has come to the conclusion that in a free fight where two parties armed with deadly weapons are involved then offence under Section 302 of IPC would not attract, but Section 304 IPC would attract.

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Here it is not the case that even the deceased

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was armed with any weapon. The material on record clearly show that the petitioner was armed with weapon which show his intention when he came to the spot in search of one Towphik Ahammed, a relative of the deceased. So he had a clear intention of committing the offence when he came to the spot. The deceased was unarmed and initially it was the petitioner who started quarrelling and assaulted both the complainant and deceased. He stabbed the deceased with knife on his vital part of the body. At this stage, it cannot be said that there

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was any provocation on the part of the deceased which prompted the accused to stab him.

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In AIR online 2020 Bom 779, it was a case of circumstantial evidence. Bail was granted on the ground that no strong corroborative evidence was made out against the accused.

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In AIR online 2021 Guj 1774, considering that there was an inordinate delay in lodging FIR and considering the nature of allegations against the accused, bail was granted.

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In the instant case, there is no delay in lodging the complaint as the incident took place on 24.10.2023 at about 00:30 hours and the complaint was lodged on the same day at 06:30 a.m.

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The specific overt acts of stabbing the deceased is against the petitioner and therefore grant of bail to accused Nos.2 and 3 is also not a ground to enlarge the petitioner on bail. There is a prima-facie case against the petitioner and considering the nature and gravity of the

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