Abin V.J. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** ## **BAIL APPL. NO. 312 OF 2024** **CRIME NO.1449/2023 OF PAMPADY POLICE STATION, KOTTAYAM** **AGAINST THE ORDER/JUDGMENT CRMP 3586/2023 OF DISTRICT COURT & SESSIONS** ## **COURT,KOTTAYAM** ## **PETITIONER/ACCUSED:** **ABIN V.J, AGED 34 YEARS S/O P.C JAYAN, RESIDING AT VADAKKENADAYIL HOUSE, MADAPPADKOOROPPADA VILLAGE, KOTTAYAM TALUK, KOTTAYAM, PIN - 686001** **BY ADVS. C.S.MANILAL S.NIDHEESH** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION ADDL. STATE PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **ADGP SRI GRASHIOUS KURIAKOSE .SR PP SRI C K K SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.312 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the sole accused in Crime No.1449/2023 of the Pampady Police Station, Kottayam, registered against him for allegedly committing the offence punishable under Section 302 of the Indian Penal Code. The petitioner was arrested on 25.11.2023. 2. The gravamen of the prosecution case is that: on 20.11.2023 at around 10.30 p.m the accused had an altercation with his elder brother named Nibin (deceased) and inflicted a deep stab injury on the left thigh and a cut injury on the left hand. Due to the said injuries the deceased after undergoing treatment at the Medical College Hospital, Kottayam succumbed to the injuries on 23.11.2023. Thus, the accused has committed the above offences. 3. Heard Sri.C.S.Manilal, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned **BAIL APPL. NO.312 OF 2024** **3** Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner vehemently submitted that the petitioner is totally innocent of the accusations levelled against him. The deceased lost his life not due to any overt act committed by the petitioner. Actually, the deceased attempted to stab the petitioner and he himself fell on the knife and sustained a deep injury on this thigh. The very fact that the deceased lost his life only after three days reveals that it was not out of the incident that was occurred on 20.11.2023. The petitioner has been in judicial custody since 25.11.2023, which is 81 days. The investigation in the case is practically complete. The recovery has been effected. The petitioner is the breadwinner of the family. If the petitioner is not released on bail it will cause humiliation and harassment to the petitioner. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed **BAIL APPL. NO.312 OF 2024** **4** the application. The investigating officer has filed a bail objection report, inter alia, stating that in the postmortem surgery that was conducted, it has been revealed that the deceased lost his life due to the injury sustained by him, which was caused by blunt force. It was impossible for the deceased to have caused a self inflicted injury of the said nature. In the investigation, the mother, the wife, brothers and other close relatives of the deceased have been questioned. The accused has confessed that it was he who stabbed the deceased on his thigh with a knife and caused the injuries including an injury on his wrist. He has also confessed that the injury took place due to a mistake while there was a push and pull at their house. The deceased suffered a deep wound of 7 cms on his left thigh and he had profuse bleeding. He also sustained an injury on his left wrist. The investigation in the case is almost complete and the final report would be laid. If the petitioner is released on bail, there is every likelihood of him threatening and influencing the widow of the deceased and the other family **BAIL APPL. NO.312 OF 2024** **5** members who are the eyewitnesses. The prosecution apprehends that the mother and brother who are the sterling witnesses may turn hostile due to his influence. Hence, the bail application may be dismissed. 6. The learned Public Prosecutor also handed over the postmortem certificate of the deceased dated 23.11.2023 issued by the Professor, HOD & Police Surgeon of the Forensic Medicine, Government Medical College, Kottayam. 7. The prosecution allegation is that on 20.11.2023 at about 10.30 p.m the petitioner inflicted a deep stab injury on the left thigh of the deceased and also a cut injury on the left hand of the deceased. Due to the grievous injuries that was sustained by the deceased, he was rushed to the Medical College Hospital, where he underwent treatment till 23.11.2023. However, he lost his life on 23.11.2023. 8. On going through the postmortem certificate dated 23.11.2023 it is evident that the deceased suffered two major ante mortem injuries namely; (1) surgically modified incised puncture wound 26.5x4 cm, vertical, on outer aspect of the **BAIL APPL. NO.312 OF 2024** **6** left thigh, its lower extent 8 cm above the knee. The wound was directed inwards, backwards and upwards and it cut through the underlying muscles and ended after cutting the blood vessels including perforator branch of deep femoral artery for a total minimum depth of 7 cm. (2) Sutured incised wound 5.5x0.5x0.5 cm, oblique, on front of left forearm, its upper inner extent 4.5 cm below elbow. The forensic expert has certified that the deceased lost his life due to the incised punctured wound sustained to his left lower limb. 9. It was the submission of the learned counsel for the petitioner that, it was the deceased who attempted to stab the petitioner and in the altercation the deceased fell on the knife and injured his thigh. The learned Public Prosecutor opposed the submission and contended that going by the nature of injuries sustained by the deceased, by no stretch of imagination could the deceased have inflicted such a deep injury on his left thigh. 10. Be that is may, it is well settled that in applications for bail, this Court is not expected to delve deeper into the **BAIL APPL. NO.312 OF 2024** **7** merits of the matter especially when the investigation is in progress. ## 11. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** **and Another** [(2010) 14 SCC 496], the Honourable Supreme Court has observed as follows: - “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: - (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; - (ii) nature and gravity of the accusation: - (iii) severity of the punishment in the event of conviction; - (iv) danger of the accused absconding or fleeing, if released on bail; - (v) character, behaviour, means, position and standing of the accused; - (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.” ## 12. Subsequently, in **Kalyan Chandra Sarkar** ’s case, the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable **BAIL APPL. NO.312 OF 2024** **8** apprehension of the accused tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the witnesses by the accused. ## 13. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves **BAIL APPL. NO.312 OF 2024** **9** the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” ## 14. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 15. On an anxious consideration of the facts, the materials placed on record, particularly the postmortem certificate of the deceased, the rival submissions made **BAIL APPL. NO.312 OF 2024** **10** across the Bar and taking into account the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the reasonable apprehension projected by the prosecution that there is every likelihood of the petitioner winning over the sterling witnesses, who are none other than his mother and brother and that the investigation in the case is still in progress, I am not convinced and satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on the society. Hence, I hold that the application is meritless and is only liable to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS** **JUDGE** **shg**