Anjura @ Anju v. State of Kerala

**BAIL APPL. NO. 3990 OF 2021** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 4[TH] DAY OF JUNE 2021 / 14TH JYAISHTA, 1943** ## **BAIL APPL. NO. 3990 OF 2021** ## **PETITIONER/S:** 0 ANJURAJ@ANJU AGED 26 YEARS W/O ARUN, AGED 26 YEARS, RAJEEV BHAVAN, MONDIYODU, KULAPPADA P.O., UZHAMALAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695542 THIRUVANANTHAPURAM, BY ADV LATHEESH SEBASTIAN ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 ADDL RESPONDENT 2 AMBIKA S W/O BABU K, AGED 56 YEARS, RESIDING AT CHIRATHALAYKKAL VEEDU, PANDIYARAKKONAM, ANAD P.O, THIRUVANANTHAPURAM DISTRICT – 695 541 3 ADDL RESPONDENT 3 BABU K S/O.KUMARAN, AGED 59 YEARS, CHIRATHALAYKKAL VEEDU, PANDIYARAKKONAM, ANAD P.O, THIRUVANANTHAPURAM DISTRICT- 695 541 *ADDL RESPODNENTS 2 AND 3 IMPLEADD AS PER ORDER IN CR.M.A.NO.2 OF 2021 DATED 04.06.2021 BY ADVS. GODWIN JOSEPH R.VINOD SMT SREEJA P-PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 3990 OF 2021** 2 ## **ORDER** The above captioned application seeking regular bail has been filed under Section 439 of the Code of Criminal Procedure ( “Code” for short ) by the 2nd accused in Crime No.457 of 2021 of the Aryanad Police Station registered inter alia under Sections 302, 449 r/w 34 of the Indian Penal Code. The aforesaid crime was registered on 24.03.2021 based on the information furnished by one Vinod. 2. In a heinous incident which took place in the confines of the residential home of the applicant herein, her husband was murdered. The prosecution alleges that he was murdered by the applicant and her paramour. 3. The prosecution records would reveal that the relationship between the applicant and her husband was strained as the applicant was openly having an illicit relationship with the 1st accused, one Unnikuttan. The applicant herein was residing in her aunt’s house, a lady by name Sarojam with her minor child. Her husband on the other hand was living alone in a lodge. On 23.03.2021, at lunch, the applicant is alleged to have called her husband, Arun over phone and invited him to the house where she is residing to resolve their differences. When he came to the house at about 10 pm, he found the 1st accused, Unnikkuttan, sitting in the drawing room of the house. The child of the applicant had gone to sleep by then, but her aunt was awake. There **BAIL APPL. NO. 3990 OF 2021** 3 was a flare up between the two men. It is the case of the prosecution that the applicant was taking a bath then. When the melee started, the applicant is alleged to have intervened. The prosecution alleges that Unnikkuttan was handed over a knife by the applicant and both the men fought for possession of the weapon. When the knife fell down, the applicant is alleged to have taken it and handed it over to the 1st accused with which he inflicted the fatal blow. Though Arun was rushed to the hospital, he succumbed to the injuries at midnight on 24.03.2021. The incident was allegedly witnessed by Sarojam, the aunt of the applicant. Some person who had come to the spot, and who had no occasion to witness the incident gave information to the police based on which the crime was registered. 4. Sri. Latheesh Sebastian, the learned counsel appearing for the applicant, submitted that the true facts of what had transpired on 23.03.2021 has not been placed by the prosecution. According to the learned counsel, from the First Information Statement itself, it is clear that the relationship between the applicant herein and her husband was strained. It has also come out from the statement that Arun was residing in a lodge after their relationship had become strained. On the date of the incident, it was the deceased who had come to her residential home late in the night, after arming himself with a weapon to put an end to the life of the paramour. It is true that there occurred a fisticuff and injuries were sustained by accused Nos.1 and 2 as well. According to the **BAIL APPL. NO. 3990 OF 2021** 4 learned counsel, the deceased with whom the applicant never saw eye to eye trespassed into her house during the late hours and had tried to murder her. It is contended that the fatal injury was a stab inflicted by the 1st accused who has already been released on bail by this Court by order dated 21.05.2021 in BA No.3674 of 2021. It is further submitted that investigation is progressed to the end stages.The learned counsel would urge that the fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. He would vehemently urge that any imprisonment before conviction has a substantial punitive content and which has time and again been disapproved by this Court as well as the Apex Court. 5. The learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that the materials collected by the prosecution would reveal that it was the applicant who had invited the deceased to her house after conspiring with the 1st accused. It is submitted that from the statement of the eye witness, it is clear that the applicant herein was the person who had handed over the weapon to the 1st accused with which he had stabbed her own husband. The incident was witnessed by her aunt and she has narrated the incident in all its graphic details. It is submitted by the learned Public Prosecutor that if the applicant is released on bail, there is every likelihood that she would terrorise the witnesses and may even cause harm to her own child. It is further **BAIL APPL. NO. 3990 OF 2021** 5 submitted that the final report has not been laid. 6. The parents of the deceased have filed an application seeking intervention and the same was allowed. Sri.Godwin Joseph, the learned counsel submitted that a perusal of the sequence of events would show that the applicant was instrumental in inviting the deceased to her house to snuff out his life. According to the learned counsel, instead of protecting the life of her husband, she turned out to be his nemesis. He would point out that the bail granted by this Court by order dated 21.05.2021 to the prime accused has already been challenged by the interveners before the Apex Court and the same is pending. According to the learned counsel, the life of the child would be in danger if the applicant is released on bail. 7. I have considered the submissions advanced and have perused the materials which are made available. 8. The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In **Prahlad Singh Bhati v. NCT, Delhi** [(2001) 4 SCC 280], it was held thus: “The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and **BAIL APPL. NO. 3990 OF 2021** 6 standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” ## 9. The very same principles were reiterated in **State of U.P. v. Amarmani Tripathi** [(2005) 8 SCC 21] as well. 10. I have narrated the sequence of events above. The incident had occurred late in the night in the house of the applicant. Records clearly reveal that the relationship between the applicant and her husband was unduly strained. Injuries were noted on the body of the applicant as well as the 1st accused. The specific defence of the applicant is that the deceased was the actual aggressor and the 1st accused was merely exercising the right of private defence. The main allegation against the applicant is that she had handed over the knife with which injury was inflicted. The person who had inflicted the stab injury has been released on bail by this Court. It is undisputed that the investigation is over and the police are on the verge of submitting the **BAIL APPL. NO. 3990 OF 2021** 7 final report. As held by the Apex Court in **Sanjay Chandra v. CBI** [(2012) 1 SCC 40], the fundamental postulate of criminal jurisprudence is the presumption of innocence, that is a person is believed to be innocent until found guilty and it would be contrary to the concept of personal liberty if any person should be punished before conviction in respect of any matter or under any circumstances, upon the belief that he will tamper with the witnesses if left at liberty. Any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an under trial for the purpose of giving him a taste of imprisonment as a lesson. The Hon'ble Apex Court in **Dataram Singh v. State of Uttar Pradesh** [(2018) 3 SCC 22] had held that grant of bail is the general rule and putting a person in jail or prison is an exception. Even though the grant or denial of bail is entirely the discretion of the Judge, in the facts and circumstances of each case, the exercise of judicial discretion has been circumscribed by the decisions of the Apex Court as well as this Court. The jurisdiction must be exercised judiciously, in a humane manner and compassionately without being carried away by the severity of the allegations. In **State of Kerala v. Raneef** [(2011) 1 SCC 784], it was held that when under-trial prisoners are detained in jail custody for an indefinite period due to the delay in concluding the trial, Article 21 of **BAIL APPL. NO. 3990 OF 2021** 8 the Constitution is violated. 11. Having regard to the entire facts, the stage of investigation, the role assigned to the applicant, the reasonable possibility of securing her presence at the stage of trial and the reasonable apprehension of the witnesses being tampered with, I am of the view that the further detention of the applicant in custody is not necessary. She can now be granted bail by imposing stringent conditions. It is made clear that any expression of opinion for the purpose of deciding this bail application shall not be regarded as an expression on merits of the case. In the result, this application will stand allowed, however, it shall be subject to the following conditions: 1. The applicant shall be released on bail on her executing a bond for Rs.1,00,000/-(Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. 2. The applicant shall appear before the Investigating Officer between 9 a.m. and 11 a.m. on every Saturday for a period of three months or until the filing of the final report whichever is earlier. 3. The applicant shall not enter the limits of Thiruvananthapuram District limits except for complying with condition no.(b) above. If for any extraordinary reason the applicant requires to enter the limits, previous permission has to be obtained from the jurisdictional Court. 4. The applicant shall not intimidate or attempt to influence the witnesses; nor shall she tamper with the evidence. **BAIL APPL. NO. 3990 OF 2021** 9 5. She shall not commit any offence while on bail. 6. The applicant shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. **Sd/RAJA VIJAYARAGHAVAN V JUDGE** NS