Rule of parity cannot form the ground for bail: High court of Karnataka

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.8337 2021 BETWEEN: AMEER @ AMMI S O SHEIKH HAMEED AGED ABOUT 26 YEARS R AT KANCHINADKA PADAVU HOUSE SAJIPANADU BANTWALA TALUK D. K. DISTRICT 574 219 THE STATE OF KARNATAKA BY KONAJE POLICE STATION DAKSHINA KANNADA REP BY SPP HIGH COURT BUILDING … PETITIONER BY SRI ASIF BAIKADY ADVOCATE) … RESPONDENT BY SRI K.K.KRISHNA KUMAR HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.84 2020 REGISTERED BY THE KONAJE POLICE STATION FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 364 201 302 READ WITH SECTION 149 OF IPC AND ETC. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.84 2020 registered by the Konaje Police Station for the offences punishable under Sections 364 201 302 read with Section 149 of IPC. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State. 3. The factual matrix of the case is that accused No.1 took the loan of Rs.35 000 and he was insisting to pay the additional amount of Rs.75 000 and the victim was repeatedly visited the house of the accused No.1 demanding to pay the amount. Hence he had an ill will against the said victim and took the decision to get rid from the victim and in that connection he conspired with accused Nos.2 to 5. On 29.10.2020 accused No.2 took the victim in his autorickshaw as per the instructions of accused No.1 and all of them joined together and accused No.3 i.e. this petitioner and accused No.4 using the towel made him to fell down and at that time accused No.1 assaulted with his hands and accused No.2 also assaulted with his hands on his stomach accused No.5 kicked the victim on his private parts and committed murder of the victim and thereafter took the body in the Ape goods auto and buried the body of the victim. Based on the complaint the police have registered the case investigated and filed the charge sheet for the aforesaid offences. The learned counsel for the petitioner would submit that accused No.5 has already been enlarged on bail by this Court in Crl.P.No.4064 2021 dated 31.07.2021 and apart from that the counsel would vehemently contend that the case is rest upon the circumstantial evidence and there is no prima facie material against this petitioner. The counsel further submits that this petitioner is in custody and investigation has been completed and charge sheet also filed and prosecution is mainly relying upon the last seen theory and there is no eye witness to the alleged incident and there are only 44 witnesses and it takes time for trial and hence prayed to enlarge the petitioner on bail. Per contra the learned High Court Government Pleader appearing for the State would submit that CW2 and 3 who are the witnesses stated that this petitioner along with others were took the victim in the autorickshaw belongs to accused No.2 and accused No.2 took the victim as per the instructions of accused No.1 and all of them joined together and committed the murder and there was injury near the neck and there are ligature mark on the neck and hence there is a prima facie material against this petitioner who had also indulged in making him to fell down by using the towel and the opinion of the doctor is also that the cause of death was due to external compression on the neck by a ligature and hence prayed to dismiss the petition. Having heard the respective counsel and also on perusal of the documents on record and the statement of the witnesses i.e. CW2 and 3 discloses that accused No.2 took the victim in his autorickshaw and also the case of the prosecution is that after committing the murder they buried the body and at the instance of accused No.1 only the police have discovered the body from where the body was buried. The main allegation against this petitioner is that along with accused No.4 both of them used the towel and put the same on the neck of the victim and made him to fell down at that time other accused persons have committed the murder by assaulting him with their hands and kicked the victim. No doubt this Court granted the bail in favour of accused No.5 wherein this Court made an observation that the cause of death was due to the external compression on the neck by ligature but the allegation against the accused No.5 is that he has kicked the deceased on his private parts. But PM report does not discloses the same. Hence discretion has been exercised in favour of accused No.5. Having taken note of the factual aspects of the case that the specific allegation against this petitioner is that he put the towel on the neck of the victim and dragged him and made him to fell down and cause of death was due to external compression on the neck by ligature. When such overt act allegation was made against this petitioner and cause of death also found that due to the external compression on the neck by a ligature the very contention of the learned counsel for the petitioner that this petitioner is also entitled for the bail on the ground of parity cannot be accepted and the order passed by this Court in Crl.P.No.4064 2021 will not come to the aid of this petitioner and hence it is not a fit case to exercise the discretion in favour of the petitioner. In view of the discussions made above I pass the The bail petition is rejected. Sd 

Summary: The criminal petition is filed under section 438 of CR.P.C ( direction for grant of bail to person apprehending ) for the enlargement on bail for the offence punishable under section 364( kidnapping or abducting in order to murder), 201( Causing disappearance of evidence of offence or giving false information to screen offender),302 ( punishment for murder) read with Section 149 ( Every member of unlawful assembly guilty of offence committed in prosecution of common object) of IPC by the petitioner. And the petition was rejected by the high court of Karnataka through the learned bench led by Honorable Mr. Justice H P Sandesh in the case of Ameer vs state of Karnataka (criminal petition no. 8337/2021) on 20th January 2022.   Brief facts of the case are that accused no.1 took the loan of Rs.35,000/- and he was insisting to pay the additional amount of Rs.75,000/- and the victim was repeatedly visited the house of the accused no.1 demanding to pay the amount. Hence, he had an ill-will against the said victim and took the decision to get rid from the victim and in that connection, he conspired with other accused. On 29thoctober 20 accused no.3 that is petitioner and accused no.4 using the towel, made him to fell down and at that time, accused no.1 assaulted with his hands and accused no.2 also assaulted with his hands on his stomach, accused no.5 kicked the victim on his private parts and committed murder of the victim and thereafter took the body in the Ape goods auto and buried the body of the victim. Based on the complaint, the police have registered the case, investigated and filed the charge-sheet for the offences.  Arguments presented by the learned Counsel appearing on behalf of petitioner that accused no.5 has already been enlarged on bail by this court on 31th July 2021 and apart from that the counsel would vehemently contend that the case is rest upon the circumstantial evidence and there is no prima facie material against this petitioner. The counsel further submits that this petitioner is in custody and investigation has been completed and charge-sheet also filed and prosecution is mainly relying upon the last seen theory and there is no eye-witness to the alleged incident and there are only 44 witnesses and it takes time for trial and hence, prayed to enlarge the petitioner on bail for trial and hence, prayed to enlarge the petitioner on bail.  The court after taking note of facts of the case which alleges the petitioner for the death of victim and cause of death is external compression on the neck by ligature, denies petitioner’s trial on the ground of inequality. And the petition is rejected by the court. Click here to read the judgement