Akhil R. Nair & Rahul R. Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942 Bail Appl..No.3442 OF 2020** **CRIME NO.723/2019 OF Poovar Police Station, Thiruvananthapuram** ## **PETITIONERS/A1 & A2:** **1 AKHIL R. NAIR, AGED 24 YEARS, S/O. RAJAPPAN NAIR, ASWATHY BHAVAN, THOTTUMUKKU, AMBOORI, VAZHICHAL DESAM, THIRUVANANTHAPURAM (A1). 2 RAHUL.R.NAIR, AGED 27 YEARS, S/O. RAJAPPAN NAIR, ASWATHY BHAVAN, THOTTUMUKKU, AMBOORI, VAZHICHAL DESAM, THIRUVANANTHAPURAM (A2). BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKAULAM - 682 031.** ## **BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.3442 OF 2020** **2** ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The petitioners herein are the 1[st] and 2[nd] accused in S.C.No.20 of 2020 on the file of the Sessions Court, Thiruvananthapuram. They along with the 3[rd] accused have been charged for having committed offence punishable under Sections 376, 506, 120B, 364, 342, 302, 201 r/w. Section 34 of the Indian Penal Code. 3. This application is taken up and heard through Videoconferencing. 4. A lady by name Rakhimol was allegedly in love with the 1[st] accused. She was working at the Asianet Broadband at Ernakulam and she left her home to join work on 21.6.2019. Later, when there was no information about her whereabouts, Crime No.73 of 2019 was registered at the Poovar Police Station under Section 57 of the Kerala Police Act, 2011 based on information lodged by her father. 5. Succinctly stated, the prosecution alleges that after a prolonged affair with the aforesaid Rakhimol, the 1[st] petitioner, who was **Bail Appl..No.3442 OF 2020** **3** a serving soldier in the Indian Army wanted to leave her and marry another woman. Rakhimol was devastated and she told the 1[st] accused in no uncertain terms that she would not permit him to leave her. The accused entered into a conspiracy to murder the aforesaid Rakhimol. The 2[nd] accused is the brother of the 1[st] accused and 3[rd] accused is their friend. They decided to invite Rakhimol to their house and murder her. In pursuance to the conspiracy, they dug a huge pit in the backyard of their house and purchased salt. They also purchased a mobile phone to manipulate the evidence. Rakhimol was persuaded by the accused to come with him to the residential home which was under construction. When she reached Neyyattinkara bus stand on 21.6.2019, she was allegedly abducted in a car bearing Reg. No. TN-72-AH-4524 by the accused. On the way to the house, the 2[nd] accused asked Rakhimol to sever her relationship with the 1[st] accused to enable him to carry on with his life. When she refused, the accused Nos.1 and 2 strangulated Rakhimol leading to her death. The body was taken to the pit which was prepared for the purpose of burying her and after sprinkling salt on her body, she was buried. Active assistance was rendered by the 3[rd] accused as well. Thereafter, they destroyed the evidence and to make it appear that Rakhimol was elsewhere, inserted her SIM into a mobile phone purchased from Kattakada and made calls and sent some **Bail Appl..No.3442 OF 2020 4** messages. The phone was destroyed later. The 3[rd] accused was arrested and on interrogation, he disclosed the role played by the rest of the accused. The Call Records seized by the police substantiated the suspicion of the police that the petitioners 1 and 2 had snuffed out the life of a young lady who had yearned to spend the rest of her life with the 1[st] accused. The body of the deceased was recovered from the grave in the property of the accused Nos. 1 and 2. 6. Sri.Sasthamangalam S.Ajithkumar, the learned counsel appearing for the petitioners, submitted that the petitioners are innocent. He would contend that though the girl went missing on 21.6.2019, the fact was reported to the police only on 6.9.2019. This would show that the girl was habituated to leaving her house for days. He contended that the accused has strong exception to the circumstances relied on by the prosecution to implicate them in a case of murder. He would further contend that the case being one which rests purely on circumstantial evidence, the petitioners should be granted a fair opportunity to consult their lawyer and frame their defence. The learned counsel further contended that the object of bail is neither punitive or preventative and deprivation of liberty must be considered as a punishment unless there are reasons to believe that the accused will not stand his trial when called upon. The learned counsel **Bail Appl..No.3442 OF 2020 5** took pains to point out that detention in custody pending the conclusion of trial could lead to great hardship and it is argued that no person should be punished in respect of any matter, upon which he has not been convicted solely on a belief that he will tamper with the witnesses if left at liberty. 7. Sri.Suman Chakravarthy, the learned Senior Public Prosecutor, submitted that clinching materials have been collected by the prosecution which leads to the conclusion that an unsusceptible girl was abducted and murdered by the petitioners in a meticulous and well planned manner to connect the accused with the crime. There are materials in the form of Call Data Records and messages which reveal that the 1[st] accused and the deceased were in love. Witnesses have also stated to that effect. The body of the girl was recovered from the property of the accused Nos.1 and 2. This is a serious piece of evidence which unflinchingly points to the devious nature of the accused and also the diabolic manner in which the murder was committed. To highlight the meticulous manner in which the crime was committed, he pointed to the manner in which the accused attempted to side track the police by sending messages and calls. The learned Public Prosecutor pointed out that most of the material witnesses, who are cited to prove the links, are residing near to the house of the **Bail Appl..No.3442 OF 2020 6** accused. The chances of the petitioners tampering with the evidence and influencing the witnesses are very high. Relying on the report in **Kalyan Chandra Sarkar v. Rajesh Ranjan**[1] , it is argued that detention of the accused for the purpose of safeguarding the trial cannot be questioned as being violative of Article 21 of the Constitution. He would contend that heinousness of the crime as well as the likelihood of them absconding and the chances of repeating the crime are vital factors which are to be borne in mind while considering an application for bail in a case of this nature. 8. I have anxiously considered the submissions and have perused the materials which are made available. 9. It is 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 (viii) danger, of course, of justice being thwarted by grant of bail and finally (ix) the larger interest of the 1 [ 2005(2) SCC 42] **Bail Appl..No.3442 OF 2020 7** public or the State (See: **State of U.P through CBI v. Amarmani Tripathi**[2] , **Prahlad Singh Bhati v. NCT, Delhi & Anr**[3] ; **Ram Govind Upadhyay v. Sudarshan Singh & Ors.**[4] ; **Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr.**[5] . 10. In the case on hand, the petitioners are accused of having committed murder of a young lady with whom the first accused was in love to further his efforts to marry another woman. The girl was persuaded to go along with the accused by making her believe that she would be shown the house under construction. She was then strangled while inside the car and murdered. The accused had kept a pit ready to bury the girl which shows that the murder was meticulously planned. The fact that the young lady was found buried in their own property is another solid circumstance linking the petitioners with the murder. The contention of the prosecution that there is a really good chance of the petitioners subverting the course of justice by intimidating the witnesses and tampering with the evidence cannot be brushed aside. 11. I am not impressed with the contention of the learned counsel that detention in custody of the petitioners herein since the 2 AIR 2005 SC 3490 3 AIR 2001 SC 1444 4 AIR 2002 SC 1475 5 2013 (1) SCC 613 **Bail Appl..No.3442 OF 2020 8** date of their arrest would entitle him to be released on bail. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** (supra), while liberty of an individual is precious and there should always be an all round effort on the part of Courts to protect such liberties of individuals, but this protection can be made available to the deserving ones only. Liberty is to be secured through a process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim and also the collective interest of the community in order to ensure that parties do not lose faith in the institution and indulge in private retribution. 12. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr.[6]** , the Apex Court while dealing with individual liberty and cry of the society for justice has opined as under: “It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established 6 [JT 2012 (9) SC 155] **Bail Appl..No.3442 OF 2020 9** precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well - meaning person desires. 19. We are absolutely conscious that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of court to scan and scrutinize, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions." In view of the principles laid in the above precedents, I am of the view that the petitioners are not entitled to be released on bail at this stage. This application will stand dismissed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** PS/17.6.2020