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Mohammed Asif Bahadur S/O Abdul … vs The State Of Karnataka on 8 July, 2021

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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 08 T H DAY OF JULY 2021
BEFORE
THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

CRIMINAL PETITION NO.101179/2021

BETWEEN:

MOHAMMED ASIF BAHADUR,
S/O. ABDUL AS LA M BAHADUR,
AGE 38 YEARS , OCC: UN EMPLOYED,
R/O. H.NO.E1, ISR QUA RTERS,
CHITTAVADADI, HOSAPET E,
DIST. BA LLARI ,
NOW VIJAYANAGA R – 583201
…PETITIONER

(BY SRI. T. HANUMAREDDY, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
REPRES ENTED BY PSI,
CHITTAVADAGI POLICE STATI ON,
HOSAPETE, DIST. BALLARI ,
NOW VIJANAGAR – 583201,
REPRES ENTED BY SPP,
HIGH COURT OF K ARNATAKA,
DHARWAD – 583201

… RES PONDENT
(BY SRI. RAMESH b. CHI GARI, HCGP)

THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE
PETITOINER/ACCUSED NO.1 ON BAIL IN CRI ME
NO.31/ 2020 ON THE FILE OF THE CHITTAVADAGI
POLI CE STATION , HOSA PETE, DIS T. BALLARI, FOR
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OFFENCES PUNIS HABLE UNDER SECTION 498A , 302,
323, 324, 201 AN D 504 READ WIT H SECTION 34 OF
IPC.

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

ORDER

This petition is filed by the accused under

Section 439 of The Code of Criminal Procedure,

1973 (hereinafter referred to as the ‘Cr.P.C.’,

for brevity) seeking bail in Crime No.31/2020

of Chittavadagi Police Station, registered for

the offences punishable under Sections 498A,

302, 323, 324, 201 and 504 read with Section

34 of The Indian Penal Code (hereinafter

referred to as the ‘IPC’, for brevity).

2. It is the case of the prosecution that

one Smt. Sajeed Parveen W/o. Dastagirsab

lodged a complaint stating that, she is residing

at Hosapete having six daughters and among
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them, four daughters are married and her third

daughter has been given in marriage about

four years back to accused No.1 (petitioner

herein). The said accused No.1 is the son of

accused Nos.2 and 3 and brother of accused

No.4. The petitioner has waited for seven years

to marry the deceased Smt. Mabeena Banu and

after the consent of both side, he has married

her on 21.09.2016 at Ummar Function Hall,

Hospete. It was stated that, the deceased was

living happily for about three months and

thereafter she was subjected to mental and

physical cruelty and they were abusing in filthy

language. It is stated that, the accused

persons were trying to perform second

marriage of the petitioner/accused No.1. For

that, the petitioner used to assault the

deceased. It is stated that, the accused No.4
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used to abuse the deceased in filthy language

and used to quarrel with her and they have

aborted the baby. It is further stated that the

petitioner/accused No.1 while sleeping, used to

keep the knife beneath his pillow and

threatening to kill her. It is further stated that,

on 18.09.2020, in the midnight at 12.30, the

petitioner/accused No.1 has called the

complainant and told that the deceased was

quarrelling with him for that complainant has

told to give the phone to the deceased for that

deceased has told that for trivial issue the

petitioner has assaulted her daughter and

when she intervened he has also assaulted the

deceased and rammed the head to the wall.

The deceased told to the complainant to call

for Panchayat and they requested to come in

the morning. Thereafter the petitioner/accused
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No.1 sent a message to her last daughter

stating that the deceased has committed

suicide. The said complaint came to be

registered in Crime No.31/2020 of Chitawadagi

police station for the offences punishable under

Sections 498A, 302, 323, 504 read with section

34 of IPC. The petitioner/accused No.1 came to

be arrested on 22.09.2020. The petitioner filed

Criminal Miscellaneous No.5102/2021, seeking

bail and the same came to be rejected by III

Additional District and Sessions Judge, Ballari,

sitting at Hubballi by order dated 07.04.2021.

Therefore, the petitioner is before this Court,

seeking bail.

3. Heard the arguments of the learned

counsel appearing for the petitioner and the

learned High Court Government Pleader for the

respondent-State.

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4. It would be the contention of the

learned counsel for the petitioner that, the

petitioner is innocent, has not committed any

offence as alleged and he has been falsely

implicated in the case. The marriage of the

petitioner with the deceased is a love marriage

and for that he has waited for seven years. The

deceased has left the death-note which

contains that she is responsible for her death

and on that it can be assumed that she has

committed suicide. The quarrel which stated to

have taken place in the night of the said

incident date is for trivial issue and the

deceased was sensitive and due to depression

she might have committed suicide. The very

fact that, the petitioner/accused No.1 sent SMS

to the fifth daughter of the complainant

regarding suicide committed by the deceased
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itself shows the conduct of the accused No.1

that he is not responsible for the death of the

deceased. The Doctor has given opinion that

the deceased has died due to smothering and

the postmortem report contends ligature marks

and the death-note contains that she is

responsible for her death and all these have to

be established at the trial. As the marriage

between the deceased and the petitioner is a

love marriage, there is no question of any

dowry harassment. The case of the prosecution

is based on the circumstantial evidence and as

the death has taken place in the house of the

petitioner/accused, it is for the petitioner to

explain how death occurred as required under

Section 106 of Evidence Act at the trial. The

accused Nos.2 and 3 have been granted bail by

this Court and they are similarly placed to that
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of accused Noo.1 and therefore, accused No.1

is entitled for grant of bail on the ground of

parity. With this, he prayed to allow the

petition.

5. Per contra, learned High Court

Government Pleader has contended that, the

offence alleged is a heinous offence,

punishable with death or imprisonment for life.

The Doctor who conducted postmortem

examination has opined that the death is due

to smothering and it is a homicidal death. The

diary containing death-note has been sent to

handwriting expert for opinion and the report

is awaited. As the death is in the house of the

accused they have to explain how the death

has taken place. If the petitioner is released on

bail, he will tamper the prosecution witness
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and flee from justice. With this, he prayed to

allow the petition.

6. Having regard to the submission

made by the learned counsel for the petitioner

and the learned High Court Government

Pleader, this Court has gone through the

charge sheet records.

7. Admittedly, Smt. Mubeena Banu was

found dead in the house of accused, where

accused Nos.1 to 3 were residing. As per the

statement of C.W.11 to C.W.13, accused Nos.1

and 2 have taken the deceased to the hospital,

stating that she is suffering from stomach pain.

The photograph taken by the police during the

investigation and the spot mahazar shows a

saree/veil is hanging to the fan. The accused

Nos.1 and 2 took the victim to the hospital,
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during night hours and the accused No.1 sent

information to the complainant by phone that

the deceased is quarreling with him and

subsequently he has sent a message to the

sister of Mubeena Banu that her sister has

committed suicide. The diary which was found

in the house contains a suicide-note, wherein it

is mentioned that, she is responsible for her

death. The said diary has been sent to the

handwriting expert and report is not yet

received. The postmortem report shows that

there is a protruded tongue with congestion.

The postmortem report requires to be

considered whether it is a homicidal death or a

suicide by hanging. However, they are all the

matters of trial. The report of the handwriting

expert is required in order to show whether the

deceased has left suicidal note or not. The
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marriage of the petitioner/accused No.1 with

the deceased is a love marriage and he waited

for seven years. The accused Nos.2 and 3 have

been granted bail and accused No.4 is granted

anticipatory bail.

8. Considering the facts and

circumstances of the case and without

expressing any opinion on the merits of the

case, by imposing stringent conditions, if the

bail is granted to the petitioner/accused No.1,

no prejudice would be caused to the

prosecution case. Accordingly, I pass the

following:

ORDER

The petition filed under Section 439 of

Cr.P.C. is allowed. Consequently, the

petitioner/accused No.1 shall be released on
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bail in Crime No.31/2020 of Chittavadagi Police

Station subject to the following conditions:

i) The petitioner/accused No.1 shall
execute a personal bond for a sum of
Rs.1,00,000/- (Rupees one lakh only)
with one surety for the like sum to
the satisfaction of the jurisdictional
Court.

ii) The petitioner/accused No.1 shall not
indulge in tampering the prosecution
witnesses.

iii) The petitioner/accused No.1 shall
attend the Court on all the dates of
hearing unless exempted and co-

operate in speedy disposal of the
case.

Sd/-

JUDGE

*Svh/-

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