Akash and Madhu v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2023-02-28
Court Decision / Holding: Petition allowed; the petitioners are enlarged on bail on conditions: (i) bond of Rs.50,000 with two solvent sureties; (ii) not to intimidate witnesses or tamper with evidence; (iii) to co-operate with investigation and appear before IO on Mondays for two months or until final report; (iv) not to induce or threaten any person; (v) not to commit any other offence during bail period; violation may lead to cancellation.
Final Disposition: Bail granted to the petitioners on specified conditions under Section 439 CrPC; case disposed on bail entry by the High Court of Kerala

Parties to the Case

Appellants / Petitioners

Akash
Madhu

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri M.R. Sasith

Counsels for Respondents

• Sri P.G. Manu, Sr. Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court bail application by Akash and Madhu, accused in Crime No.89/2023 of Eravipuram Police Station, Kollam, seeking regular bail under Section 439 CrPC in respect of offences under IPC sections 341, 294(b), 323, 324, 326, 506, 307 and 34. The matter was heard on 28 February 2023 by Justice A. Badharudeen. The prosecution alleges that, due to prior animosity, the accused, in furtherance of a common intention, restrained the defacto complainant on 13 January 2023, assaulted him with a sword causing skull fracture and internal bleeding, hurled obscene words, and pushed him down; the 2nd accused is said to have threatened to kill and stamped the informant. The petitioners contend innocence and rely on mistaken identity: the 1st accused is named Akash, allegedly attacked by a different Akash, and highlight progress of investigation with custody since 13 January 2023 and willingness to cooperate. The Public Prosecutor opposed bail citing serious injuries, but the discharge summary notes unicortical injury and fracture to the ulna. The court, noticing investigation progress, granted bail on conditions including bond, two sureties, non-interference with witnesses, regular appearance, and prohibition on further offences; any breach may lead to cancellation. The order reflects a cautious bail approach balancing individual rights with ongoing investigation.

Provisions of Law Cited

Section 439 of CrPCSections 341, 294(b), 323, 324, 326, 506, 307 and 34 of IPCSection 354(D)(I) of IPCSection 305 IPCSection 12 r/w 11(iv) of POCSO Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend innocence and submit that the 1st accused Akash may be confused with a third person of the same name; there is mistaken identity. They emphasise progress of investigation, have remained in custody since 13.01.2023, and offer cooperation with the investigation. Regular bail is sought with appropriate conditions.

Contentions of Respondents

The State contends that the injuries alleged are grave (skull fracture with active bleeding) and that bail should be cautious; per discharge summary, injuries may be unicortical and limited to ulna. Prosecution notes progress of investigation and argues against bail, citing potential threats and need to protect witnesses.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023/9TH PHALGUNA, 1944** **BAIL APPL. NO.1208 OF 2023** **AGAINST THE ORDER/JUDGMENT IN CMP 734/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, KOLLAM CRIME NO.89/2023 OF ERAVIPURAM POLICE STATION, KOLLAM** ## **PETITIONERS/ACCUSED 1 & 2:** 1 AKASH, AGED 21 YEARS, S/O,MADHU, HIMASHYLAM HOUSE, G.V.JAGAR 108, AYATHIL CHERY, VADAKKEVILA ,KOLLAM, PIN – 691020. 2 MADHU, S/O.THULASEEDHARAN, HIMASHYLAM HOUSE, G.V.JAGAR 108, AYATHIL CHERY, VADAKKEVILA, KOLLAM, PIN – 691020. BY ADV. SRI.M.R.SASITH **RESPONDENT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY ADV. SRI.P.G.MANU, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.1208 of 2023** 2 ## **O R D E R** ## **Dated, this the 28[th] February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, 1973 and the petitioners are accused Nos.1 and 2 in crime No.89/2023 of Eravipuram Police Station, Kollam, where accused Nos.1 and 2 alleged to have committed offences punishable under Sections 341, 294(b), 323, 324, 326, 506, 307 and 34 of Indian Penal Code and the petitioners seek regular bail. 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 3. Perused the relevant documents placed by the learned Public Prosecutor forming part of the Case Diary. 4. The prosecution allegation is that due to the previous animosity, the accused persons in furtherance of their common intention to cause ## **B.A. No.1208 of 2023** 3 hurt and murder of the defacto complainant, at about 12:00 p.m. on 13.01.2023 accused wrongfully restrained the defacto complainant using his motor cycle at Gopalassery Ayathil. Thereafter they hurled obscene words and pushed the defacto complainant down by fisting on the back of the informant. Further the 1[st] accused hacked on the head of the defacto complainant by using a sword and caused fracture to his skull bone and thereby internal bleeding from his head. The accused again attempted to cause injury to the defacto complainant, when the same was warded of the defacto complainant sustained fracture to his hand. Thereafter the 2[nd] accused criminally intimated to kill the informant and stamped the informant repeatedly. Thus, the prosecution alleges commission of the above offences. 5. While canvassing regular bail to the petitioners, the learned counsel for the petitioners pointed out that the petitioners are ## **B.A. No.1208 of 2023** 4 innocent and the serious injuries in the nature of fracture as alleged by the prosecution is the outcome of the attack by one Akash, having the same name of the 1[st] accused, and the police alleges the said overt acts against the 1[st] petitioner/1[st] accused on mistaken identity, since he was attacked by the 3[rd] accused, whose name is also Akash. That apart, he has pointed out the progress of investigation and the custody of the petitioners from 13.01.2023, as reasons for granting regular bail to the petitioner with offer to co-operate with investigation. 6. The learned Public Prosecutor opposed bail on pointing out the injuries noted in the wound certificate, viz., skull bone fracture with active bleeding while opposing bail. But as per the discharge summary the injuries sustained to the defacto complainant is found as unicorticular injury and fracture to ulna and treatment thereof. Learned Public Prosecutor ## **B.A. No.1208 of 2023** 5 conceded that the investigation has achieved much progress. 7. On perusal of the prosecution records along with the discharge summary, it could be gathered that the 1[st] accused used a sword to attack the defacto complainant and the same caused injury and fracture on his left wrist, though it has been stated in the wound certificate that he sustained skull bone fracture. 8. It is reported by the Investigating Officer that the 1[st] accused is a person having criminal antecedents and he has involvement in Crime No.937/2021 of Eravipuram Police Station, under Section 354(D)(I), 305 IPC and Section 12 r/w 11(iv) of POCSO Act. The 2[nd] accused has no criminal antecedents. 9. Since the investigation has achieved much progress, I am inclined to release the petitioners on bail on conditions and one among the conditions is that they shall not involve or ## **B.A. No.1208 of 2023** **==> picture [7 x 9] intentionally omitted <==** indulge in any offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted. 10. Accordingly, this petition stands allowed and the petitioners are enlarged on bail on the following conditions: - _i. The petitioners shall be released on_ _bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court, concerned._ _ii. The petitioners shall not intimidate the witnesses or tamper with evidence._ _iii. They shall co-operate with the investigation and they shall appear before the Investigating Officer on every Monday from the date of release on bail, for a period of two months or till the final report will be filed, whichever occur first._ _iv. The petitioners shall not, directly or indirectly, make any inducement, threat or promise to any person_ ## **B.A. No.1208 of 2023** 7 _acquainted with the facts of this case, so as to dissuade them from disclosing such facts to the court or to any police officer. v. The petitioners shall not involve in any other offence during the currency of bail and any such event, if reported to came to the notice of this court, the same alone shall be a reason to cancel the bail hereby granted._ Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 8 ## **B.A. No.1208 of 2023** ## **APPENDIX OF BAIL APPL. 1208/2023** PETITIONERS' ANNEXURES: ANNEXURE A1 THE TRUE COPY OF THE ORDER DATED 3/2/2023 PASSED BY THE JUDICIAL FIRSTCLASS MAGISTRATE COURT II, KOLLAM IN CMP NO.734/2023. ANNEXURE A2 TRUE COPY OF FIR NO.89/2023 OF ERAVIPURAM POLICE STATION DATED 13/1/2023.