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Judgment
C M Joshi, J
Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent – State.
This petition under Section 439 of Code of Criminal Procedure (for short 'Cr.P.C.") is filed by the petitioners - accused Nos.9 to 11 and 17 to 19 to enlarge them on bail in Crime No.115/2023, registered by the Golgumbaz Police Station, Vijayapur for the offences punishable under Sections 120 (B), 109, 341, 307 and 506 read with Section 149 of IPC and Sections 25 (1) (a), 25 (1b), 27 (1) (a) of the Arms Act.
The Golgumbaz Police Station Vijayapura, registered the FIR on the basis of the complaint filed by one Sohail @ Mohammed Sohail s/o Mohammed Rafi Kakkalameli, wherein it was stated that on 10.11.2023, he and one Amanulla had been to the market and they were returning on their motorcycle and on the way, their friend Tousif also got on to the motorcycle and while they were near the Hanuman Temple of Waddar Oni, the accused Mohammed Nadaf, Zameer, Khadar Nadaf, Malikrehan and several others came on cars and motorcycles and waylaid the complainant and his friends. The complainant and his friends left the motorcycle at the spot and while they were running away to escape from the assault of the accused, the accused Sameer had fired from the pistol and when the complainant fell down, the accused Mohammed fired from his pistol, which resulted in injury to the ear of the complainant. The others were holding machetes and they were trying to assault the complainant and his friends. The other accused that were present were instigating the assailants and when the people gathered and complainant and his friends shouted, they ran away on their motorcycles and cars. It was stated that the incident took place at about 04.00 p.m. While the complainant was in the hospital, the statement was recorded by the police and came to be registered in Crime No.115/2023.
Subsequently, the investigating officer commenced the investigation and the further statement of the complainant was recorded by the I.O. on the next day i.e. on 11.11.2023. In his further statement the complainant has stated that at the time of the incident, the accused No.1-Mohammad Nadaf, accused No.2-Tohid Atanur, accused No.3-Mujamill @ Mujju Nadaf and Habibulla Inamdar were alone present at the spot and they were holding pistol and the machetes. In the anxiety of having sustained the injuries, the complainant had stated in a complaint that several 8 to 10 others were also present at the spot and after recovering he is making a further statement that only the above four persons were present at the spot. The above four persons are the accused Nos.1, 7, 9 and 11 as mentioned in the charge sheet. It is relevant to mention at this juncture that the accused Nos.2, 5, 6 and 8 as per the FIR were not charge sheeted by the Investigating Officer and only the remaining persons were included in the charge sheet.
The charge sheet discloses that the relative of the complainant Shaik Modin was facing the charges of murder of one Hyderali, who was a relative of the accused. Therefore, there was enmity between the accused and the complainant and that was and motive for the incident.
Now petitioners, who are the accused Nos.9 to 11 and 17 to 19 have approached this Court for bail under Section 439 of Cr.P.C. The allegations made against these accused is that they were also involved in the conspiracy in mounting the assault on the complainant and had conspired in procuring the arms etc. The further statement of the complainant and charges mentioned in the charge sheet do not specifically mention as to who and in what manner these petitioners (except A9 and A11) were involved in the offence. It is simply mentioned that the complainant came to know that these petitioners were also involved to conspiracy to commit the offence, i.e. murder of the complainant and therefore they are also arrayed as accused. Learned counsel for the petitioners also submits that there are no specific allegations against these accused and therefore these petitioners are entitled for the bail.
Per contra, the learned High Court Government Pleader would submits that the very fact that the accused No.1 possessing the pistol, which is the fire arm itself would show that the accused had a conspiracy to murder the complainant. She submitted that the motive for commission of the offence is evident from the very possession of fire arm by the accused No.1. The statement of the witnesses and also the statement of the complainant would clearly show that accused Nos.9 and 11 were also present at the spot. It is submitted that the other accused being the conspirators, are arrayed as accused in the charge sheet. It is submitted that the enmity between the parties is evident as it relates back to the murder of one Hyderali. Therefore, it is contended that none of the petitioners herein are entitled for enlargement on bail.
From careful perusal of the charge sheet papers as well as the submissions made both the sides, it is evident that the petitioner Nos.1 and 3, who are arrayed as accused No. 9 and 11, were also present at the spot of the incident when the complainant was assaulted by the accused. The further statement of the complainant clearly implicates these petitioners No.1 and 3 to be at the spot of the incident and therefore there is a clear prima-facie case available against these accused. It is relevant to note that the role of petitioner Nos.2 and 4 to 6 (who are arrayed as accused No. 10, 17 to 19) is remotely connected to the incident. What is available in the charge sheet is that these petitioner Nos.2 and 4 to 6 had participated in the conspiracy and therefore they have been arrayed as accused. Unless the source of information about the involvement of these petitioners is also established beyond reasonable doubt, their involvement become doubtful. Evidently these petitioner Nos.2 and 4 to 6 were not present at the spot at the time of the incident. The complainant in his further statement has stated that these petitioner Nos.2, 4 to 6 were not present at the spot. Therefore, there is no such prima-facie material which is available on record which could implicate these petitioners to the crime. Evidently their involvement is dependent upon the statement made by the other witnesses/ accused. Under these circumstances, except the petitioner Nos.1 and 3, rests of the petitioners are entitled for the bail and therefore, the following order is passed.
ORDER
The petition as against the petitioner Nos.1 and 3 is hereby dismissed.
The petition filed by the petitioner No.2, 4 to 6 is hereby allowed subject to condition that these petitioner Nos.2, 4 to 6 shall execute the personal bond for a sum of Rs.1,00,000/- each with two sureties for the likesum to the satisfaction of the Trial Court/ Committal Court and also subject to following conditions.
(a) These petitioners shall appear before the Trial Court on all hearing dates as and when required.
(b) These petitioners shall not tamper the prosecution witnesses either directly or indirectly or dissuade them from deposing before Trial Court.
(c) There shall not indulge in any similar offences during the pendency of the case.