Bail Application No. 5569/2018 (and connected cases)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** ## **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **Bail Appl..No. 5569 of 2018** **CRIME NO. 745/2018 OF Gandhinagar Police Station , Kottayam** ## **PETITIONERS/ACCUSED Nos.1,2,3,6,7,8,10,11,12 & 13:** - **1 SHYANU CHACKO AGED 26 YEARS,S/O.CHACKO JOHN, SHYANU BHAVAN, OTTAKKAL P.O., THENMALA, PATHANAPURAM, KOLLAM.** - **2 NIYASMON @ CHINNU AGED 23 YEARS, S/O. NAZRUDEEN, NISHANA MANZIL, EDAMON, PATHANAPURAM, KOLLAM** - **3 ISHAN ISMAIL,AGED 20 YEARS S/O.ISMAIL THAZHATHUVEETTIL, THEKKUMKOOPPU BHAGOM, EDAMON, KOLLAM** - **4 MANU MURALEEDHARAN, AGED 26 YEARS, S/O.MURALEEDHARAN, THENGUMTHARAYIL PUTHENVEEDU, PUNALUR, KOLLAM** - **5 SHIFIN SAJAD, AGED 27 YEARS, S/O.SAJAD, MARUMATHON HOUSE, NEAR PUNALUR MARKET, PUNALUR, KOLLAM** - **6 NISHAD N., AGED 22 YEARS, S/O.NIZARUDEEN, VALUTHUNDIL HOUSE, CHALAKKODU KARA, PUNALUR, KOLLAM** - **7 VISHNU B @ APPUNNI, AGED 24 YEARS, S/O.BABU, ATHIRA BHAVAN, VALAKODU P.O., PUNALUR, KOLLAM** - **8 SHERIF, AGED 25 YEARS, S/O.MUHAMMED, MARUTHIVILA HOUSE, MOOSARIKUNNU BHAGOM, PUNALUR, KOLLAM** B.A. No. 5569/2018 & conn. cases 2 |**9**|**SHANU, AGED 24 YEARS, S/O.SHAJAHAN,**| |---|---| ||**KANJIRAVILA PUTHENVEEDU, KALAYANADU P.O.,**| ||**PUNALUR, KOLLAM**| |**10**|**SHINU, AGED 22 YEARS, S/O.NASAR,**| ||**PALAVILA KUZHIYIL HOUSE, CHEMMANTHOOR KARA,**| ||**PUNALUR, KOLLAM**| ||**BY ADV. SRI. P. MOHANDAS (ERNAKULAM)**| ## **RESPONDENTS/STATE & COMPLAINANT :** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 001**| |**2**|**THE DEPUTY SUPERINTENDENT OF POLICE,**| ||**DISTRICT CRIME BRANCH, KOTTAYAM-686 008.**| ||**BY PUBLIC PROSECUTOR, SRI.SAJJU**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.09.2018, ALONG WITH Bail Appl.No.5299/2018, Bail Appl.No.5748/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No. 5569/2018 & conn. cases 3 ## **O R D E R** B.A. No.5569 of 2018 is filed by the petitioners who are accused Nos.1,2,3,6,7,8,10,11,12 and 13 in Crime No.745/2018 of Gandhi Nagar Police Station, Kottayam. B.A. No. 5299 of 2018 was filed by the petitioners, who are accused Nos.4 and 9 and B.A. No.5748 of 2018 was filed by accused No.5 in the same crime. The offences allegedly involved are those punishable under Sections, 449, 427, 323, 506(ii), 342, 364(A) and and 302 r/w 34 IPC. 3. The case of the prosecution was that in the early morning of 28.05.2018, the dead body of Kevin Joseph was found in Chaliakkara river in Thenmala, Kollam District. Subsequently, crime No.1083/2018 under Section 174 Cr.P.C was registered at Thenmala Police Station. In view of the dereliction of duty, the Sub Inspector of Police, Gandhi Nagar who was pursuing with the investigation was placed under suspension and vide order dated 28.05.2018 the investigation was entrusted to Special Investigation team by the State Police Chief. They took over investigation immediately and the offences as aforesaid were incorporated into the crime. The investigation is progressing in that line. All accused except accused No.5 were arrested on 29.05.2018 and accused Nos. 5 was arrested on 30.05.2018. All of them were produced before the court on B.A. No. 5569/2018 & conn. cases 4 respective dates and were remanded to judicial custody. All of them were also given in police custody. In the said circumstances, these applications were moved by the petitioners, seeking regular bail. 3. Dr.K.P. Satheesan, the learned Senior Counsel urged that the petitioners are totally innocent of the allegations levelled against them. According to him, the petitioners who have preferred B.A. No.5299/2018 are accused Nos.4 & 9 and were drivers by profession. The cars owned by them were called by one of their friends for a trip and unknowingly of the purpose behind, the car and their service as drivers were lent and except that involvement, they have not played any role towards the commission of the alleged crime. According to the learned Senior Counsel, the petitioners have already served more than 60 days in custody and further detention will not serve any purpose. According to him, the chargesheet having not been submitted, the petitioners are entitled to obtain statutory bail. 4. The learned counsel on behalf of the petitioners in B.A. No.5569 of 2018 urged that they are innocent and pleaded that they are also entitled to be released on bail for the reason stated earlier. According to him, petitioners were taken into custody as early as on 29.05.2018 and that is a sufficient reason to justify their release now. According to him, grave role having not been B.A. No. 5569/2018 & conn. cases 5 alleged as played by the petitioners, with their presence in custody, the investigation process would not be improved. On behalf of the sole petitioner in B.A. No.5748 of 2018 who is the 5[th] accused, it is contended by the learned Senior Counsel that he is innocent and have not contributed any vital role in the commission of the offence of murder. The 5[th] accused is none other than the father of Mrs.Neenu Chacko and he had only lodged a complaint to the police against Kevin for taking his daughter away from his custody. Both his daughter and Kevin were traced out and he was permitted by the Police to take his daughter, if she volunteers to go with him. But, Kevin, his cousin brother, Aneesh and his friends forcibly took his daughter away and kept her in their custody, for which he was frustrated. According to him, specific overt acts as alleged are not committed by accused No.5 and he was also given in police custody for interrogation purpose. 5. Materials in the Case Diary would indicate respective involvement of all petitioners in the alleged crime and there is no basis in attributing them, the criminal liability of taking part with the commission of the heinous crime of murder of Kevin. According to him, even as per the evidence collected by the prosecution, Kevin jumped into a river after he was set free from the car and there is no justification in connecting the petitioners with the offence under B.A. No. 5569/2018 & conn. cases 6 Section 302 IPC after getting the body of Kevin from the river. According to the learned counsel, the investigation has gone in an improper manner to meet the sensation created by media and in the total absence of direct or cogent circumstantial evidence, the allegation of the prosecution that the petitioners had hatched conspiracy at several places and the death of Kevin was the outcome of their action in concert is totally devoid of merits. According to him, there is total want of allegations to subscribe that the 5[th] accused was available at the place where the body of Kevin was found. According to the learned counsel, amidst the allegations the petitioners were taken into custody and they have co-operated with the investigation team for more than 60 days. The investigation is over and the final report prepared is also laid before the Judicial First Class Magistrate Court-I, Ettumanur. According to him, their custody lasted for a period exceeding 60 days and therefore, they are entitled to statutory bail. 7. The learned Senior Counsel has also brought the attention of this Court to some decisions of this Court as well as that of the Apex Court to substantiate the argument that the petitioners are to be released on bail. Firstly, **State of Rajasthan, Jaipur v. Balchand** [AIR 1977 SC 2417] was cited and relied on. The dictum reads : B.A. No. 5569/2018 & conn. cases 7 “The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with the Court when considering the question of bail. So also the heinousness of the crime. While the system of pecuniary bail has a tradition behind it, the time has come for re-thinking on the subject. It may well be that in most cases not monetary suretyship but undertaking by relations of the petitioner or organisation to which he belongs may be better and more socially relevant.” 8. The 2[nd] decision cited and relied on by the learned Senior Counsel was **Sanjay Chandra v. Central Bureau of Investigation** [(2012) 1 SCC 40]. The dictum is contained in paragraphs 20, 21 and 22, which read : “20. The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of the Penal Code, 1860 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, which they think, are relevant for refusing the bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with the witnesses; the objection of the prosecuting authorities and the possibility of absconding from justice. 21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of B.A. No. 5569/2018 & conn. cases 8 liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.” ## 9. The decision thirdly cited is **Sunil Kumar v. Vipin Kumar** **and others** [(2014) 8 SCC 868]. Paragraph 13 is relied on which reads : “13. We have heard the rival legal contentions raised by both the parties. We are of the opinion that the High Court has rightly applied its discretionary power under Section 389 Cr.P.C to enlarge the respondents on bail. Firstly, both the criminal appeal and criminal revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version.” ## 10. Tarun Tejpal v. State of Goa, an unreported decision of the B.A. No. 5569/2018 & conn. cases 9 Apex Court is also relied on by the learned Senior Counsel. But the full text of the decision was not made available to this Court. It is urged by the learned Senior Counsel, in view of the decisions _supra_ that this Court is perfectly justified in granting bail to all the petitioners now applied for bail. 11. The learned Public Prosecutor on the contrary, had raised vehement opposition against the grant of bail. It is contended by him that overt acts involving gravity are alleged against each of the petitioners and there is no merit in the contentions advanced by the learned counsel. According to the learned Public Prosecutor the accused were indulged in the activities involving seriousness and the same having been culminated in the death of Kevin, criminal liability liable to be attracted is nothing but participation in the ultimate result, i.e. nothing but murder of Kevin. According to him, the cases have to be differentiated on the facts and circumstances involved in each case. 12. The Case Diary is made available by the learned Public Prosecutor. The arguments put forth from both sides were evaluated in the backdrop of the materials available therein. As rightly put forth, final report is laid before the Judicial First Class Magistrate Court-I, Ettumanur by the investigating team after concluding the investigation. It is also informed that all the accused B.A. No. 5569/2018 & conn. cases 10 except accused No.4 are before this Court seeking bail. 13. The materials are critically evaluated to find out the role played by each petitioners. As disclosed from the final report, accused Nos.1, 2, 4 and 5 had hatched a conspiracy on 26.05.2018 at the road margin, near Edamon 34 KSEB Substation. Thereafter, they contacted accused Nos.3 and 6 to 14 over phone and asked them to arrive at the petrol pump at Nellippally, Punalur. There also accused Nos.1 to 4 and 6 to 14 conspired and preparations were made. 7[th] and 10[th] accused procured two swords each and all of them except accused No.5 proceeded to Kottayam on 27.05.2018 in a Wagon-R Car belonging to the 1[st] accused, Innova Car belonging to the 4[th] accused and I-20 Car belonging to the 9[th] accused. At 1 a.m. they reached Kottayam and they took rooms at Kerala Tourist Home situated at Gandhi Nagar and conspired again. They vacated the rooms at about 1.35 a.m. and concealed the numbers of the cars with mud and proceeded towards the house of Aneesh, bearing Panchayat No.XVII/360, situated at NSS Karayogambhagam, Mannanam, where Kevin and Neenu were staying, reached there at about 2.25 a.m., forcefully broken the kitchen door of the house and trespassed into the house with deadly weapons. The 7[th] accused destroyed the Television, the 9[th] accused, the Refrigerator and the pipe of drinking water and the 11[th] accused, the window glasses and B.A. No. 5569/2018 & conn. cases 11 thereby caused a loss to the tune of Rs.45,102/- to Sri.Aneesh. The 8[th] accused hit Aneesh on his head with a fiber chair, the 10[th] accused threatened to kill him by placing the sword on his neck and the 12[th] accused beat him with hands. Accused Nos.2, 4 and 6 to 14 forcibly pulled Kevin and Aneesh out from the latter's house. Thereafter they took Aneesh and Kevin in different cars and proceeded to the destination. On the way also the accused communicated among them, their plan of action and assaulted both of them. They demanded Aneesh, the release of Neenu Chacko for getting Kevin released from their custody and threatened that Kevin would be murdered, if the release of Neenu is not facilitated as demanded. At about 4 a.m. on 27.05.2018 they reached Chaliyakkara and pulled Kevin out of the car. On watching the accused approaching Kevin with swords in their hand and making exhortation that they would kill him, Kevin escaped from their custody out of his fear of death. Accused followed him with the deadly weapons and in his rush to escape from their clutches, he happened to fell in the Chaliakkara river. His body was recovered therefrom. It is in the said circumstances that they were chargesheeted for the offences as aforesaid. The motive alleged was the ill will of accused Nos.1 and 5 towards Kevin, who is a Christian and a member of an economically backward class, for B.A. No. 5569/2018 & conn. cases 12 loving and marrying Neenu Chacko, against their wishes and consent. Neenu Chacko is the sister of the 1[st] accused and daughter of the 5[th] accused. 14. Undoubtedly the facts and circumstances disclose that this is a clear case of honour killing. It is pertinent to note from the materials that the father and the brother of Neenu Chacko have also contracted inter caste marriage. For the sole reason that Kevin belongs to a family having poor financial status, that they turned against him for marrying Neenu Chacko and out of ill will they committed the crime. They procured the help of other accused, who are their friends and relatives, for the commission of the crime. Since chargesheet is laid within 90 days, the accused are not entitled for statutory Bail. 15. In the decisions cited by the learned Senior Counsel, the basic rule that bail and not jail is stressed, but at the very same time, the Apex Court cautioned to consider circumstances like, fleeing from justice for thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating the witnesses and the like by the petitioners who seek enlargement on bail from the court. Paragraph 25 of the judgment in **Sanjay Chandra** 's case supra is relevant in the context and is extracted hereunder : B.A. No. 5569/2018 & conn. cases 13 “25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.” 16. The Apex Court had also cautioned that though the general rule is bail and jail is the exemption, each case has to be considered in the facts and circumstances involved therein. The overt acts of each of the accused are made mention of _supra_ . From the facts and circumstances of the case on hand, the gravity involved is indicated. As stated earlier, this is a clear case of honour killing. The 1[st] and 5[th] accused are master brains and the plan of action was prepared in the conspiracy among all, at the three different places and ultimately that culminated in the death of Kevin. Aneesh was also brutally attacked for the reason of aiding Kevin in the marriage and accommodating him at his house after the marriage. As put forth by the learned Public Prosecutor, CCTV footages are also available in evidence. Criminal conspiracy being hatched in concealment, direct B.A. No. 5569/2018 & conn. cases 14 evidence is difficult to procure. Aneesh being an ocular witness and victim of brutal attack of Kevin by the accused, there is no merit in the contention advanced by the learned Senior Counsel that case is totally devoid of direct evidence. _Prima facie_ evidence that the deceased was last seen in the company of the accused in a brutally injured state being available, the contention that there is total want of evidence to connect the accused with the crime is untenable and devoid of basis. 17. However, the complicity of each of the accused if taken independently, accused Nos.3, 6, 11 and 13, who are petitioners 3, 4, 8 and 10, who have applied for bail vide B.A. No.5569/2018 cannot be attributed with severe roles on the basis of the materials available. The custody served by them when balanced with the overt acts alleged against them, this court feel it appropriate to enlarge them on bail on stringent conditions. In the result, the Bail Application No.5569 of 2018 is allowed in part and the other two applications (B.A. Nos.5299/18 and 5748/18) are dismissed. Bail is declined to petitioners 1, 2, 5, 6, 7 & 9 in the crime and granted to petitioners 3, 4, 8 and 10 who are accused Nos.3, 6, 11 and 13 in B.A. No.5569/2018. Petitioners 3, 4, 8 and 10 are enlarged on bail on execution by each of them of a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent B.A. No. 5569/2018 & conn. cases 15 sureties each for the like sum to the satisfaction of the court having jurisdiction and subject to the conditions hereinbelow mentioned: 1. Petitioners 3, 4, 8 and 10 shall report before the Investigating Officer in between 9 a.m and 11 a.m. on all Thursdays commencing from 13.09.2018 for a period of three months or till the filing of the final report in the case in question, whichever is earlier. 2. They shall make themselves available for interrogation by a Police Officer as and when required. 3. They 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 him from disclosing such facts to the Court or to any Police Officer. 4. They shall not tamper with the evidence or influence the witnesses. 5. They shall not involve in any offence while on bail. 6. They shall not leave India without the permission of the Court and if possessed with a passport, shall surrender the same before the Trial Court within a week; if not possessed with one, they shall file an affidavit within a week before the trial court. If release of the passport is required at a later period, the applicants shall be at liberty to move appropriate application before the Court having jurisdiction and the court shall deal with it in accordance with law. In case of violation of any of the aforesaid conditions, the respondent is at liberty for cancellation of bail in accordance with law. **MARY JOSEPH** ttb **JUDGE**