Abhijith A.K., Amal Dev.T., Libin Lal v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 BAIL APPL. NO. 873 OF 2023** ## **PETITIONER/S:** 1 ABHIJITH.A.K AGED 21 YEARS THAYANAM ALOTTUKANDIYIL HOUSE KARTHIKAPPALLY.P.O, VILLIAPPALLY VIA VADAKARA, KOZHIKODE DISTRICT, PIN - 673542 2 AMAL DEV.T AGED 22 YEARS S/O SURENDRAN, THEKKE VAPPRATHU HOUSE KARTHIKAPPALLY.P.O KOZHIKODE DISTRICT., PIN - 673542 3 LIBIN LAL AGED 28 YEARS S/O NANU.P.M, PARAMBATH MEETHAL HOUSE KARTHIKAPPALLY.P.O, ERAMALA KOZHIKODE DISTRICT., PIN - 673542 BY ADVS. P.S.BINU ZUBAIR PULIKKOOL ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** S SANGEETHA RAJ PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No. 873 of 2023 2 ## **A. BADHARUDEEN, J** **…................................. B.A.No. 873 of 2023 …........................................................... Dated this the 10[th] day of March, 2023** ## **ORDER** This is an application for anticipatory bail filed by accused Nos.2 to 4 in Crime No.393/2022 of Edacherry Police Station, Kozhikode, where prosecution alleges commission of offences punishable under Sections 143, 147, 148, 341, 323, 324 and 326 r/w Section 149 of the Indian Penal Code, by the accused. 2. Head the learned counsel for the petitioners and the learned Public Prosecutor. I have perused the documents placed by the learned counsel for the petitioner and relevant documents placed by the learned Public Prosecutor including the copy of the wound certificate as well as statement certificate as that of the defacto complainant. 3. The allegation of the prosecution to be read out from the prosecution records is that at about 22:00 hrs on 28.12.2022 the accused herein formed into an unlawful assembly, armed with deadly weapons, with intention to assault the defacto complainant and in prosecution of the said common object, they B.A.No. 873 of 2023 3 have jointly attacked the defacto complainant and there by the defacto complainant sustained serious injuries including fracture. Accordingly, the prosecution alleges commission of offences of the above. 4. While pursuing the relief of anticipatory bail to the petitioners who are arrayed as accused Nos.2 to 4, it is pointed out by the learned counsel for the petitioners that when the defacto complainant was taken to hospital, he initially given a statement that he sustained injuries by fall in connection with 'Thira Festival' but later he had changed his version and given statement to the police to the effect that he was attacked by the accused herein. It is pointed out further that even going by the allegations, the defacto complainant sustained fracture on his right wrist and the same is the outcome of overt act at the instance of the 1[st] accused and no serious injuries sustained to the defacto complainant due to the overt acts at the instance of accused Nos. 2 to 4. Since the petitioners are ready to cooperate with the investigation, they may be released on bail is the submission of the learned counsel for the petitioners. 5. The learned Public Prosecutor would submit that specific role of all the accused has been dealt in the FIS and B.A.No. 873 of 2023 4 corresponding injuries also noted in the treatment records and therefore, non of the petitioners deserve anticipatory bail since arrest and and custodial interrogation are necessary. 6. On perusal of the FIS, it could be gathered that the 1[st] accused beat the defacto complainant on his right wrist by using a wooden rafter. The allegation against the 2[nd] accused is that he beat the defacto complainant on his nose and chin by using a stone and thereby, he sustained injuries on nose and chin. The allegation against the 3[rd] accused is not spelt in detail in the FIS, though, it is stated that the 4[th] accused kicked the defacto complainant and others. 7. On perusal of the copy of the wound certificate, as per the narration under the head 'history and alleged cause of injury', the defacto complainant stated that ''fall while carrying thira in connection with the festival''. Subsequently, as per the medical records, it has been stated by the defacto complainant (Aswin, 24 years), reported with trauma due to dispute on 29.12.2022 Thursday around 12:30 p.m., and he was attacked by a group of people It is true that the defacto complainant sustained right wrist fracture and the same may be read as the outcome of overt act at the instance of the 1[st] accused. B.A.No. 873 of 2023 5 However, it is noticed that the defacto complainant was advised to have consultation of 'Maxilla Facial Surgeon' for further opinion after giving 'Enameloplasty' for right and left molars along with splint application for lower anterior teeth for stabilization. That apart, as pointed by the learned Public Prosecutor, the wound certificate shows injury on incised wound on tongue. Apart from lacerated wound on chin 4 x 2 cm. 8. Having noticed the occurrence as one arose out of a dispute in connection with a festival, also taking note of the inconsistant versions of the defacto complainant about the occurrence and in consideration of the fact that though the defacto complainant sustained facial injuries and he was subjected to 'Enameloplasty' effective investigation is possible even without custodial interrogation of the petitioners, since the overt act at the infuence of the 1[st] accused resulted in fracture of the defacto complainant. Therefore, the petitioners can be enlarged on anticipatory bail and 2[nd] petitioner is specifically directed to co-operate with the investigation in the matter of recovery of the stone, allegedly used by him while he will be in the deemed custody of the Investigating Officer after surrender. B.A.No. 873 of 2023 6 9. In the result, the petition stands allowed and petitioners are released on bail as under; i. Accused Nos.2 and 4/petitioners shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners. Further the Investigating Officer can recover the stone alleged to be used by the 2[nd] accused during deemed custody. In the event of their arrest, the Investigating Officer shall produce the petitioners before the jurisdictional court on the date of arrest itself. ii. On such production, the jurisdictional court shall release them on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only), by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. iii. Petitioners shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. iv. Petitioners shall not, intimidate the witnesses or interfere with the investigation in any manner. B.A.No. 873 of 2023 7 v. Petitioners shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. Sd/- **A. BADHARUDEEN, JUDGE** Dxy B.A.No. 873 of 2023 8 ## **APPENDIX OF BAIL APPL. 873/2023** PETITIONER ANNEXURES Annexure I THE COPY OF THE ORDER IN CRL.M.C.NO.18/2023 DT.17.01.2023 BY THE COURT OF SESSION, KOZHIKODE DIVISION