Bail Application No. 3447 of 2023

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 5[TH] DAY OF MAY 2023 / 15TH VAISAKHA, 1945 ``` ``` BAIL APPL. NO. 3447 OF 2023 ``` ``` CRIME NO.143/2023 OF CHERPU POLICE STATION, THRISSUR ``` ## `APPLICANTS/ ACCUSED NO.3&4` ``` 1VIJEETH AGED 37 YEARS S/O. VIJAYAN, KODAKKATIL HOUSE, KOTTAM DESOM, KURUMBILAVU THRISSUR, PIN - 680564 ``` ``` 2VISHNU AGED 31 YEARS S/O. VYAS KUMAR, KARIMBANTHARA HOUSE, KOTTAM DESOM, KURUMBILAVU THRISSUR, PIN - 680564 ``` ``` BY ADVS.RAHUL SUNIL P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT SRUTHY K.K NIKITA J. MENDEZ ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ## `SRI.VIPIN NARAYANAN-GP` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3447/2023 : 2 : ## **P.V.KUNHIKRISHNAN, J.** = = = = = = = = = = = = = = = = = = = = = = **B.A.No.3447 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of May,2023 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code, 1973. 2. The petitioners are accused Nos.3 and 4 in Crime No. 143 of 2023 of Cherpu Police Station. The above case is registered against the petitioner and others alleging offences punishable under Sections 143, 147, 148, 341, 342, 323, 324, 325, 326, 302, 212 and 120(B) read with Section 149 of the Indian Penal Code, 1860 (in short, ‘IPC’). 3. The prosecution case in brief is as follows: On 18.02.2023, at 10.30 pm, accused persons, in prosecution of their common object, formed themselves into an unlawful assembly with sticks in their hand, wrongfully restrained the victim at B.A.No.3447/2023 : 3 : Chirakkal Kottam near Thiruvanikkav temple and the first accused voluntarily caused hut by repeatedly beating the victim’s back side by using stick. The second accused kicked him on his stomach and leg. It is also alleged that the accused persons brutally attacked the victim by beating him with their hands and sticks and also by kicking him. In the said attack, the injured sustained grievous injuries on his backbone, ribs and internal organs and later he succumbed to the injuries. Hence, it is alleged that the accused committed the offence. The petitioners, who are accused Nos.3 and 4 were arrested on 26.03.203 and they were in custody from that date onwards. 4. Heard the counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submits that the petitioners are accused Nos.3 and 4 and they are in custody from 26.03.2023 onwards. It is also submitted that the main overt acts are against accused Nos.1 and 2. It is also submitted that Section 302 IPC B.A.No.3447/2023 : 4 : was added subsequently, because the deceased died only on 07.03.2023, even though the alleged incident happened on 18.02.2023. The counsel for the petitioner also submitted that the weapon used is only a stick and even as per the prosecution case the accused beat the deceased only on his backside, whereas the death was due to blunt injuries on abdomen. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioners have committed serious offence and they may not be released on bail at this stage. 5. This Court considered the contentions of the petitioners and the Public Prosecutor. It is true that the allegations against the petitioners are serious and they were implicated with the aid of Section 149 IPC. But, even as per the prosecution case, the main overt acts are attributed to the first and second accused. The first and B.A.No.3447/2023 : 5 : second accused used sticks to attack the deceased and admittedly, they beat only on the backside of the deceased. As per the postmortem report, the death was due to blunt injuries on abdomen. The alleged incident happened on 18.02.2023 and the death was on 07.03.2023. I don’t want make any observation about the merit of the case. Considering the facts and circumstances of the case and also considering the fact the petitioners are in custody from 26.03.2023, I think the petitioners can be released on bail. Moreover, there is no serious overt acts are attributed to the petitioners also even as per the prosecution case. Since it is a murder case, there can be a direction to the petitioners not to enter the jurisdiction limit of the Cherpu Police Station for a period of two months, so that the investigation of the case can be continued smoothly. B.A.No.3447/2023 : 6 : 6. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement** (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic to bail remains the same jurisprudence relating inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 7. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: - (i) Petitioners shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. B.A.No.3447/2023 : 7 : - (ii)The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer. - (iii)Petitioners shall not leave India without permission of the jurisdictional Court. - (iv) Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. - (v) The petitioners shall not enter the jurisdiction limit of Cherpu Police Station for a period of two months. At the time of executing the bond, the petitioners shall furnish the residential address, where they are going to decide during the above period. The petitioners shall furnish B.A.No.3447/2023 : 8 : the above details along with the phone number to the Investigating Officer also within seven days from the date of their release. - (vi) If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN,JUDGE** DST/05.05.23 //True copy/ P.A.To Judge