Abhijith v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **Bail Appl..No.5401 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 1975/2019 DATED 11-07-2019 OF SESSIONS COURT, KOTTAYAM** **CRIME NO.750/2019 OF THALAYOLAPARAMBU POLICE STATION, KOTTAYAM** ## **APPLICANT/ACCUSED:** **ABHIJITH, AGED 31 YEARS S/O. SATHEESAN, THUNDATHIL, THALAYOLAPARAMBU, POTTENCHIRA KIZHAKKUMBAHAGAM KARA, VADAYAR VILLAGE.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.A.KRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.5401 OF 2019** **2** ## **ALEXANDER THOMAS, J. =========================== B.A No.5401 of 2019** **===========================** Dated this the 17[th] day of October, 2019 ## **ORDER** The subject crime in this case is Crime No.750/2019 of Thalayolaparambu Police Station, which has been registered initially under Sec.57 of the Kerala Police Act, 2011 on account of the unnatural death/suicide of the lady victim in this case, who is the wife of the petitioner herein. The police after investigation has later altered the offence to those as per Sec.498A and Sec.306 of the Indian Penal Code and the petitioner herein has been arrayed as the sole accused therein. 2. Now the prosecution case in short is that the petitioner used to frequently harass and show cruelty to her and that the lady was suspecting his fidelity as he was seen sending message to a woman, who was one of his former schoolmates and that on the day of her death, on seeing the petitioner chatting using his mobile phone with the other lady, the deceased had questioned him, which led to disputes between them and she had sent a message on the same day to her sister stating **Bail Appl..No.5401 OF 2019** **3** that during the altercation, the petitioner had assaulted her. It appears that a two year girl child, who was born to her out of the marital relationship with the petitioner and on the day in question, the lady had jumped from the bridge into the river, along with the child and the child has also died in the process. The police had also initially included the offence as per Sec.302 of the IPC on the premise that the lady by the act of jumping into the river along with the child has caused the death of the child, etc. Later since the lady is now no more, the police has deleted the offence as per Sec.302 of the IPC. 3. Sri.P.Vijayabhanu, the learned senior counsel, who is instructed by Sri.A.Krishnan, the learned counsel for the petitioner would point out that none of the vital ingredients of the offence of abetment as per Sec.107 of the IPC and the offence of abetment to commit suicide as per Sec.306 of the IPC has been made out in the facts and circumstances of the case. The learned senior counsel has taken this Court’s attention to various rulings of the Apex Court and this Court in decisions as in _**Sanju @ Sanjay Singh Sengar v. State of M.P.**_ [2002 SCC (Crl.) 1141], _**Krishnadas v. State of Kerala**_ [2017 (2) KLT 579], _**Gurucharan Singh v. State of Punjab**_ [2016 (12) **Bail Appl..No.5401 OF 2019** **4** SCALE 414], _**Harikrishnan & Anr. v. State of Kerala and Anr.**_ [2019 (3) KHC 437] & _**M.Arjunan v. State represented by its Inspector of Police**_ [2019(3) SCC 315]. On the basis of the abovesaid cited rulings, the learned senior counsel appearing for the petitioner/accused has urged that none of the vital parameters and ingredients of the abovesaid offences are made out even going by the admitted allegations in the instant case. Further, the learned senior counsel has also pointedly taken this Court’s attention that the petitioner’s deceased wife was suffering from hypothyroidism, as evident from Annexure-C Medical Certificate dated 12.07.2019 issued by the Chief Physician of the hospital concerned, where she was taking treatment and has also taken this Court’s attention to various aspects on the authoritative textbook on medicine viz., DAVIDSON's Principle of Practice of Medicine, Seventeenth Edition at page No.693 thereof, wherein the following aspects are stated : “the Clinical Features of Hypothyroidism in General are Weight Gain (Depression); Cold Intolerance (absolute intolerance); Hoarseness (rough and deep sounding - uttering die/kill etc.). The above features are described thus, “A consequence of prolonged Hypothyroidism is the infiltration of many body tissues by the mucopolysaccharides, hyaluronic acid and chondroitin sulphate, resulting in a low-pitched voice, poor hearing slurred speech due to a large tongue and compression of the median nerve at wrist. Most cases of Hypothyroidism are not so obvious, however, and unless the diagnosis is positively entertained in a middle-aged woman **Bail Appl..No.5401 OF 2019** **5** complaining of symptoms such as tiredness, wieght gain or depression, or with carpal tunnel syndrome, an opportunity for early treatment will be missed” 4. Further, this Court’s attention has also been taken to page No.1000 of the abovesaid textbook on medicine, which deals with affective disorders, wherein it is stated as follows : “Depression, or less often mania, can be the presenting feature of cerebrovascular disease, neurological disorders such as multiple sclerosis and Parkinsonism and endocrine diseases such as Cuhing's sybdrine, Addison's disease and hypothyroidism. Mood change can also be associated with drug therapy, for example coericosteroids, beta-adrenoceptor antagonists and other antihypertensive drugs (eg:alpha-methyl dopa). When mood disorders result directly from physical causes such as these they are know as organic affective disorders.” 5. _Per contra_ , the learned Public Prosecutor has seriously opposed the plea for anticipatory bail and has pointed out that the petitioner is a police constable and there is a possibility of the petitioner using his influence over the witnesses, if he is let out on bail and further, he has also taken this Court’s attention to the postmortem certificate of the deceased and has stated that two out of the three injuries noted therein could have been caused on account of the assault inflicted by the petitioner on the victim on the same day, etc. _Per contra_ , the learned senior counsel for the petitioner would point out that it is the admitted case of the prosecution that the lady, along with the child had jumped **Bail Appl..No.5401 OF 2019** **6** over the bridge into the river in the process of committing suicide and those injuries noted therein could have also caused due to her hand rubbing against the bridge railings, as she had strapped the child within her hands and had fallen out from the bridge, etc. 6. After hearing both sides and after careful evaluation of the facts and circumstances of the case and also testing the facts of this case in the light of the abovesaid judicial reasonings laid down by the Apex Court and this Court, this Court is inclined to take the view that the custodial interrogation of the petitioner may not really be fully warranted or necessary, for effectuating the smooth and effective conduct of investigation in this crime. However, sufficient safeguards as condition in the grant of bail will have to be incorporated in the bail order. Further,the petitioner has not so far appeared before the Investigating Officer for interrogation purposes and he will have to do that immediately. Hence, the following directions and orders are passed: _1. The petitioner will immediately personally appear before the Investigating Officer (I.O) in relation to the instant Crime, for interrogation purposes, without any further delay, at any rate, by 9 a.m. on any day on or before 30.10.2019 or within such time limit that may be extended by the I.O as he deems fit and proper._ **Bail Appl..No.5401 OF 2019** **7** _2. The petitioner will fully co-operate with the Investigating Officer in the above said interrogation process._ _3. After the interrogation process is over, in case, the investigating officer arrests the petitioner in relation to the above said crime, he shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned._ 7. However, in that eventuality, the grant of bail will be subject to the following conditions: - _(a) The petitioner shall report before the Investigating Officer concerned at any time between 10.a.m. and 1.00 p.m. on every 2[nd] and 4[th] Saturdays for the next four months. Thereafter, the petitioner shall report before the Investigating Officer as and when directed by him._ - _(b) The petitioner shall not involve in any criminal offences of similar nature._ - _(c) The petitioner shall fully co-operate with the investigation._ - _(d) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ 8. If there is any violation of the above said conditions by the petitioner then the competent court below concerned stands hereby authorised, to take up the plea for cancellation of bail at the appropriate time. **Bail Appl..No.5401 OF 2019** **8** With these observations and directions, the above Bail Application will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd