Adharsh @ Kannan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **Bail Appl..No.4234 OF 2020** **AGAINST THE ORDER DATED 26.05.2020 IN CRMP NOS.102/2020 & 108/2020 OF DISTRICT COURT & SESSIONS COURT,THIRUVANANTHAPURAM** **AGAINST THE ORDER DATED 23.10.2019 IN BAIL APPL.NO.7284/2019 OF HIGH COURT OF KERALA** **CRIME NO.723/2019 OF POOVAR POLICE STATION, THIRUVANANTHAPURAM** **APPLICANT/ACCUSED No.3:** **ADHARSH @ KANNAN AGED 23 YEARS S/O.SURENDRAN NAIR, ADHARSH BHAVAN, THATTAMUKKU, AMBOORI, VAZHICHAL DESOM, VAZHICHAL VILLAGE.** **BY ADV. SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **SRI.S.SAJJU, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A No.4234 of 2020 2 ## **ALEXANDER THOMAS, J.** **=========================== B.A No.4234 of 2020 ===========================** Dated this the 22[nd] day of September, 2020 ## **ORDER** The petitioner herein has been arrayed as accused No.3 among the three accused in Crime No.723/2019 of Poovar Police Station, Thiruvananthapuram, which has been registered for offences punishable under Secs.302, 376, 120B, 364, 342, 506, 201 and Sec.34 of the Indian Penal Code. 2. Heard Sri.P.Vijayabhanu, learned Senior Counsel instructed by Sri.M.Revikrishnan, learned counsel appearing for the petitioner and Sri.S.Sajju, learned Public Prosecutor appearing for the respondentState of Kerala. Sri.P.Vijayabhanu, learned Senior Counsel appearing for the petitioner/accused has made various submissions and has thus strongly urge that this is a fit case, in which the court may grant regular bail to the petitioner, who is the young man aged 23 years and one of the main contentions urged on behalf of the petitioner herein (A3) is that the prime accused in these two cases are A1 & A2, who are brothers and that at best, the petitioner herein (A3) can be booked only for the offence as per Sec.201 of the IPC (causing disappearance of evidence of B.A No.4234 of 2020 3 offence, or giving false information to screen offender) and that no case under Sec.302 and the other sections, including Sec.120B of the IPC can be pressed into service as against the petitioner and that even otherwise the admitted case of the prosecution is that the petitioner has not in any manner involved in the commission of offence under Sec.376 of the IPC, which is attributed as against A1. 3. _Per contra_ , Sri.S.Sajju, learned Public Prosecutor appearing for the respondent-State has strongly opposed the plea for regular bail and has submitted that there are sufficient prosecution materials which would clearly pin point to the petitioner's involvement for all the offences alleged in the impugned criminal proceedings other than Sec.376 of the IPC and that allegations in relation to Sec.201 of the IPC is only one among the acts attributed against the petitioner and that the prosecution materials would clearly show that the petitioner has been all along actively participated in the said crime along with A1 & A2, etc. Moreover, it is urged by Public Prosecutor that many of the key witnesses in this case are local witnesses and that in case, the petitioner is set off on regular bail, it is quite likely that he might influence and intimidate the witnesses. B.A No.4234 of 2020 4 4. In the light of the abovesaid submissions made by both parties, this Court had directed the prosecution to make available the case diary (CD files) enclosed in the abovesaid crime. The learned Public Prosecutor has also filed a statement dated 23.07.2020 in this case mainly placing reliance on the key materials in the case diary, so as to pin point the allegations of the prosecution regarding the precise involvement of the petitioner (A3). 5. This Court has perused through the CD files in this case and it is seen that the statement dated 23.07.2020 has been filed by the Investigating Agency mainly by placing reliance on the materials in the CD files. The abovesaid materials would show that the instant Crime No.723/2019 of Thiruvananthapuram Poovar Police Station, which was registered on 06.07.2020 on the basis of the First Information Statement given by one Sri.Rajan that his unmarried daughter aged 30 years was missing since 21.06.2019 onwards and that his daughter was working at the customer care centre of Asianet Broadband, Ernakulam for the last 1[1/2] years and that she had come to her residence at Poovar on 18.06.2019 and she had returned informing her parents that she is going back to her work place on 21.06.2019 and thereafter, there was no communication from her. Further that, the first informant (father) B.A No.4234 of 2020 5 called her to the mobile number and it was found that her mobile was in switch off mode. When the office of the Asianet Broadband at Ernakulam was contacted, it was understood that she was on leave for four days and had not returned back to her office after leave. On the basis of these materials, Thiruvananthapuram Poovar Police Station has registered the instant Crime No.723/2019 as “a person missing case” under Sec.57 of the Kerala Police Act on the basis of the First Information conveyed by the father of the lady. Further, the statement of the mother of the missing lady was also taken and according to the mother, on 21.06.2019 her daughter had gone to see her boy friend one Sri.Akhil R.Nair (A1 herein) and that the investigation has revealed that the lady victim had a love fair with A1, who is a serving soldier of the Indian Army for the last four years. Later, it turned out that the marriage of A1 was fixed with CW19 and the photographs of the engagement of A1 with CW19 were uploaded by A1 in his facebook account. On coming to know of that, the lady victim has strongly opposed the said marriage. That thereupon, three accused persons herein (A1 to A3) had conspired together and had determined to end the life of the lady victim. Thus the brief of the prosecution case is that with the intention to murder, the lady victim aged 30 years (daughter of the B.A No.4234 of 2020 6 first informant), who was earlier in love with A1. The three accused persons had entered into a conspiracy and prepared a plan to kill her and she was called by A1 to the KSRTC bus stand, Neyyattinkara, Thiruvananthapuram under the guise of showing her his newly constructed house. That when she reached Neyyattinkara, she was taken by A1 in a car bearing registration No.TN-AH-4524 and when when the A1 and the lady victim had reached near the Federal Bank, Amboori junction, both A1 & A3 had come in a motor cycle bearing registration No.KL-19-6610 and had entered the back seat of the said car. A2 is the elder brother of A1 and the petitioner herein (A3) is a close friend and an immediate neighbour of A1 & A2. That after entering the car, A2 had questioned the lady victim's relationship with A1 and A2 told her to withdraw from the relationship with A1, as the latter is already engaged with another lady. The said request of A2 was strongly rejected by the lady victim. When the above persons had reached near Kumbichal Kadavu, A1 asked A2 to drive the car and thereafter, A1 sat on the back seat of the car just behind the victim. Then A1 had strangulated her neck with his forearm. Thereafter, A1 strangulated the victim's neck with the seat belt of the car and when they had reached near to the newly constructed house of A1, the car was B.A No.4234 of 2020 7 stopped and when the victim had skirmished, A2 who was in the driver's seat had accelerated the engine of the stopped car, so as to sink her sound. 6. The case of the prosecution is that A1 had thus tightened the seat belt and which resulted in her death. That thereafter, with the help of A3, A1 & A2 had removed the body from the car and stripped her dresses and put the body into the pit and dropped crystals of salt over the dead body on the premise that the body would decompose fast, if salt is so put. Thereafter, they had buried her and had planted a sapling there. Then the accused persons had taken the dress, a small hand, a shoulder bag, mobile phone belonging to the victim and left it in various places and tampered the evidence and thereby committed the offences. Later, A1 had taken the car to the courtyard, washed the interior of the car, where the lady victim had urinated due to the struggle before death and then he wrapped the dress of the victim in a plastic cover. The 2[nd] accused had noticed one of the shoes of the deceased there and he had taken it and thrown it to the rubber estate. Thereafter, A2 & A3 (petitioner) had gone to Guruvayoor and thrown away the shoulder bag and other belongings of the victim at different places and thereby caused disappearance of the evidence in relation to the abovesaid B.A No.4234 of 2020 8 ## offences. 7. Further, it is stated by the prosecution that subsequently on 24.06.2019, A2 & A3 were purchased a second hand mobile phone from ‘Space Mobile Shop’ at Kattakada, Thiruvananthapuram owned by CW8 and had taken the SIM card from the victim’s mobile and put it into the newly purchased mobile phone. Then as pre-planned A2 had called a relative of the victim using the mobile phone, in which her SIM was placed and A2 had sent 14 messages to the phone of A1, as if the deceased lady victim is sending those messages, which was shown by A1 to the Investigating Officer and A1 had then claimed that this is the proof that the lady victim had eloped with another man. 8. Further, it is stated that the investigation has revealed that the dress was thrown away at different places by A1 to A3. After committing the murder, A2 & A3 had gone for a trip to Guruvayoor and when they had reached at Sreekrishnapuram, they had left the bag of the deceased in a bus, in which they had travelled and threw away the kit, which contained her dress. This has been done by A2 along with A3. 9. Initially, among the three accused persons, the Investigating Agency has arrested the petitioner herein (A3) on 24.07.2019 and on the basis of his disclosure statement, the body of the lady victim was B.A No.4234 of 2020 9 recovered from the property where the new house of A1 was constructed. Inquest was prepared and post-mortem was conducted on 25.07.2019 and the post-mortem certificate reveals that the death of the lady victim was due to ligature strangulation. After the arrest of the petitioner (A3), report dated 24.07.2019 was submitted by the Investigative Agency before the Judicial First Class Magistrate’s Court-II, Neyyattinkara, altering the offences in the abovesaid crime to those under Secs.302, 120B, 201 read with Sec.34 of the IPC. After taking the statement of the doctor, who conducted the post-mortem, Secs.376, 342 & 506 of the IPC were added. Report dated 10.10.2019 was filed before the Judicial First Class Magistrate’s Court-II, Neyyattinkara to that effect. 10. The case of the prosecution is thus that A1 to A3 had conspired together to murder the victim, as she was a hindrance to the marriage of A1 with another lady and that all the accused persons had participated in the conspiracy on several days and prepared plan and determined to commit the abovesaid offence. That for executing this plan, the accused persons, including the petitioner had excavated the pit in the property of A1, in which his new house has been constructed, well in advance and A2 & A3 had purchased salt to bury the body from the B.A No.4234 of 2020 10 shop of CW17. It will also be pertinent to refer to paragraph Nos.12 & 13 of the abovesaid statement dated 23.07.2020 filed by the prosecution in this case. 11. After hearing both sides and after going through the materials in the case diary files, the crucial details of which are also stated in the abovesaid statement, the following facts and circumstances are brought out in the prosecution materials : - _(a) The body has been recovered on the basis of the disclosure statement made by A3._ - _(b) On 24.06.2019, A2 & A3 had purchased a second hand mobile from the above referred shop and had taken the SIM card from the victim’s mobile and had put it into the abvoesaid newly purchased second hand mobile phone. A2 has thereafter called the victim’s relative and he has sent 14 messages to the phone of A1, as if the deceased is sending, in order to put up an excuse, as if the lady victim had eloped with another man. In this regard, the abovesaid crucial aspects highlighted by the prosecution is that A2 & A3 had gone together to purchase the abovesaid second hand mobile from the abovesaid shop._ - _(c) After the commission of the offences, A2 & A3 had gone for a trip to Guruvayoor, etc. Statements of the charge witnesses would show that A3 had assisted A1 and A2 at every stage of the crime prior to the commission of the_ B.A No.4234 of 2020 11 _offence and the petitioner (A3) had gone along with A2 to the provision store of CW17 and has purchased 20 packets of salt._ - _(d) On the day of occurrence of the offence, charge witnesses have seen A2 & A3 entering the car from the Federal Bank, Amboori, in which A1 and the victim was travelling. According to the prosecution, the petitioner (A3) was inside the car, when A1 had strangulated the victim._ 12. Further, according to the prosecution, the petitioner (A3) had helped A1 & A2 to remove the body from the car to the pit. Further the pit/grave in question has been prepared by A1 to A3 well in advance, about ten days before the incident in question and the same was excavated jointly by A1, A2 & A3 and for this, the prosecution would place reliance on the version of CW18. On the basis of the abovesaid materials, this Court is not prepared to countenance the plea of the learned Senior Counsel appearing for the petitioner (A3) that there are no credible materials to connect the petitioner with the abovesaid henious offences or that the involvement of A3 is confined only in respect of the offence as per Sec.201 of the IPC (causing disappearance of evidence of offence, or giving false information to screen offender), etc. B.A No.4234 of 2020 12 13. This Court is evaluating the abovesaid facts and circumstances only to consider the abovesaid submissions made by the petitioner that even the prosecution materials does not contain any adequate materials, so as to implicate him for the offences other than for Sec.201 of the IPC. The abovesaid factual aspects is dealt with by this Court only on the basis of the prosecution materials in order to judicially evaluate the abovesaid contention of the petitioner and such consideration is confined only to the issue of grant of regular bail. 14. In the light of these aspects, this Court is not in a position to accede to the plea of the petitioner for grant of regular bail. The offences alleged in the instant case are quite henious and extremely grave. Hence, this Court is not impressed with one of the submissions made by the petitioner's senior counsel that taking into account his young age (now about 23 years), this Court may take a sympathetic stand, etc. This Court is also not prepared to accede to the plea of the petitioner for grant of regular bail on the basis of his submission that he has been under remand since 24.07.2019 and taking into consideration, the long incarceration suffered by him and the unlikelihood of the completion of the trial in the immediate future on account of the COVID-19 pandemic issues, etc. B.A No.4234 of 2020 13 15. In this regard, it is pertinent to refer to the legal principles laid down by the Apex Court in decisions as in _**Kalyan Chandra**_ _**Sarkar v. Rajesh Ranjan**_ [(2004) 7 SCC 528] in paragraph No.14 thereof as follows : _“In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.”_ In this regard, it is also pertinent refer to the decisions rendered by the Apex Court in cases as in _**State of U.P v. Amarmani Tripathi**_ [(2005) 8 SCC 21], _**Rajesh Ranjan Yadav alias Pappu Yadav v. CBI through its Director**_ [(2007) 1 SCC 70], _**Gobarbhai Naranbhai Singala v. State of Gujarat**_ [(2008) 3 SCC 775], _**Chandrakeshwar Prasad alias Chandu Babu v. State of Bihar**_ [(2016) 9 SCC 443)]. In _**Anil Kumar Yadav v. State (NCT of Delhi) and another**_ [(2018) 12 SCC 129], it has been held in paragraph No.29 thereof as follows : B.A No.4234 of 2020 14 _“In the present case, the trial is at a very crucial stage. The trial court is yet to record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for 4.12.2017. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case, we are convinced that a fair trial can be ensured only if the appellants are not enlarged on bail.”_ 16. In the instant case, the most of the key charge witnesses are persons in the immediate locality, where the permanent residence of the accused persons is situated. From the submissions on both sides, it is seen that after submission of the final report/charge sheet in this case, the learned Magistrate has committed the case and thereafter, the case is now pending as sessions case S.C.No.20/2020 on the file of the VI[th] Additional Session’s Court, Thiruvananthapuram and that charges in this case are not so far been framed by the Sessions Court. Further that, in view of the public involvement of this case and taking into consideration of the request of the lady victim’s family member, the State Government has already issued proceedings appointing a Special Public Prosecutor in this case. True that on account of the COVID-19 pandemic issues, it may not be able to say with any clarity, as to when the trial would be definitely completed. But in the light of the crucial aspects, this Court is constrained to take the view that this is not a fit case for grant of regular bail. Taking into account the extreme gravity of B.A No.4234 of 2020 15 the offences involved and also taking into account the serious likelihood of influencing the witnesses, if the petitioner is released on bail. However, it is ordered that the Sessions Court will take all reasonable endeavours possible in this case to ensure that charges in this case are framed without any further delay and endeavours may also be made by the Sessions Court to ensure that the file is duly completed, without much delay, preferably within a period of 6 to 8 months from the date of framing of the charges. Provided all the parties and the witnesses to fully co-operate in the said juncture and provided it is so otherwise feasible. 17. The Registry will forward a certified copy of this order to the VI[th] Additional Sessions Court, Thiruvananthapuam, who is dealing with sessions case S.C.No.20/2020, for necessary information and further action. With these observations and directions, the abovesaid Regular Bail Application will stand dismissed. **Sd/ALEXANDER THOMAS JUDGE** vgd B.A No.4234 of 2020 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**TRUE COPY OF THE ORDER DATED 23-10-2019**| |---|---|---| |||**IN B.A.NO.7284/2019 OF THIS COURT**| |**ANNEXURE**|**2**|**TRUE COPY OF THE ORDER DATED 12-05-2020**| |||**IN CR.M.P(E) NO.7 OF 2020 OF THE COURT OF**| |||**ADDITIONAL**<br>**SESSIONS**<br>**JUDGE-VII,**| |||**THIRUVANANTHAPURAM**| |**ANNEXURE**|**3**|**TRUE COPY OF THE COMMON ORDER DATED**| |||**26-05-2020 IN CRL.M.P.NO.102/2020 AND**| |||**108/2020 OF THE COURT OF THE SESSIONS**| |||**JUDGE, THIRUVANANTHAPURAM**|