Bail Appl..No.1007 OF 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941 Bail Appl..No.1007 OF 2019** **CRIME NO.474/2018 OF ANGAMALI POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **BABU AGED 42 YEARS S/O. KOCHAPPU, ARAKKAL HOUSE, ERAPPU KARA, MOOKKANNOOR VILLAGE, NOW RESIDING AT HOUSE OF MADASSERY DEVASSY KUTTY, KALARKUZHY BHAGAM, MOOKKANNOOR, ANGAMALY.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/STATE:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. (CRIME NO.474/2018 OF ANGAMALY POLICE STATION, ERNAKULAM DISTRICT) 2 ADDL.R2 THE DIRECTOR, FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM.** **IS SUO MOTU IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 25.11.2019 IN BA-1007/2019.** ## **SRI SUMAN CHAKRAVARTHI SR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.1007 OF 2019 2 ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 1[st] accused in Crime No.474 of 2018 of the Angamaly Police Station registered on 12.2.2018 under Sections, 323, 324, 447, 506,307 and 302 of the IPC. The final report has been laid and the case is now pending on the files of the Court of Session, Ernakulam as S.C.No.675 of 2018. 3. The prosecution allegation as per the final report is that the petitioner herein was not in good terms with his brother Sri.Sivan as there were disputes between them in respect of the family property. On 12.2.2018, at about 5.40 pm., the petitioner herein along with CW1 went to the disputed property to earmark certain trees for the purpose of felling the same. While the petitioner along with CW1 were marking the trees, his elder brother Sivan came to the spot and raised objection. It is alleged that this led to an altercation between him and Sivan. Smt.Valsala, the wife of Sivan, intervened when Sivan was pushed down. It is alleged that the petitioner was armed with a chopper with which he inflicted multiple cut injuries on vital parts of the body of Valsala. When Sivan came to the Bail Appl..No.1007 OF 2019 3 rescue, he was also attacked. After inflicting serious injuries on them, the petitioner directed his attention towards Smitha, the daughter of Sivan. When Smitha made an attempt to escape, the petitioner followed her and chopped on various parts of her body with the weapon. All of them sustained very serious injuries and though they were rushed to the hospital, their lives could not be saved. The prosecution also alleges that the petitioner herein attacked CWs 1 and 2 who tried to intervene. The minor children of Smitha had occasion to witness the gruesome incident and according to the prosecution, the petitioner herein even attempted to inflict injuries upon them. 4. Sri.Dheerendrakrishnan, the learned counsel appearing for the petitioner, submitted that the true facts have been suppressed by the prosecution. According to the learned counsel, the property wherein the incident took place stands in the name of the petitioner. It was the deceased who approached him and picked up an altercation. It is further submitted that the petitioner was deprived of the powers of self control by grave and sudden provocation and the incident happened without premeditation in the heat of passion. He would further urge that the petitioner herein was arrested in connection with the aforesaid crime on 14.2.2018 and he has been undergoing incarceration for about 2 years. Due to the failure of the prosecution in making available the report of forensic Bail Appl..No.1007 OF 2019 4 analysis, even the charge has not been framed till date. The prospects of the forensic report being obtained in the near future is also remote. The learned counsel urged that if the applicant is not ordered to be released on bail, it would result in gross prejudice as he would not be in a position to defend his case in a proper manner. 5. The learned Public Prosecutor has opposed the prayer. He would refer to the case diary and it is urged that the petitioner herein has committed murder of his brother, sister-in-law and niece in the most brutal manner imaginable. The prime witnesses are the near relatives of the petitioner as well as the deceased. CWs 3 and 4 are the children of Smitha and they had also occasion to witness the brutal incident. CW17 is Seethalakshmi, the wife of one of the brothers of the accused and she had also raised concern about her safety as she was threatened by the accused. Referring to the sequence of events, it is submitted that the petitioner had attacked Valsala first and there is no case that she was armed with a weapon. He would refer to the postmortem report and highlighted the serious nature of the injuries that were inflicted. According to the learned Public Prosecutor, as many as 65 sealed packets were sent to the Director of Forensic Sciences Laboratory for DNA profiling and extraction and that has led to the delay in submitting the report from the lab. The severity of the injuries inflicted, the likelihood of the petitioner interfering with the course Bail Appl..No.1007 OF 2019 5 of justice are highlighted by the learned Public Prosecutor to persuade this Court to refuse bail to the applicant. 6. 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 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.” 7. The very same principles were reiterated in **State of U.P. v.** ## **Amarmani Tripathi** [(2005) 8 SCC 21] as well. 8. In a recent judgment of the Hon'ble Apex Court in **Mahipal v. Rajesh Kumar @ Polia and Another** (judgment dated 5.12.2019 in Crl.A.No.1843 of 2019), it was held that the provisions for being released on Bail Appl..No.1007 OF 2019 6 bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by the higher courts. The court will have to balance numerous factors that guide the exercise of the discretionary power to grant bail in a case to case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. 9. Coming back to the case on hand, the apprehension expressed by the State that the applicant would manage to make the trial into a farce, if they are released on bail, cannot be brushed aside. As held by the Apex Court, the reasonable possibility of the witnesses being tampered with and the possibility of securing the presence of the accused at the time of trial are valid considerations. In the case on hand, the accused is charged for having committed triple murder. Two of the victims are unarmed women. The mere fact that the applicant has been in custody for some time may not be a reason to allow his application for bail. As held by the Apex Court in **Rajesh Ranjan Yadav** v. **CBI** (AIR 2007 SC 451), while Article 21 is of Bail Appl..No.1007 OF 2019 7 great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because, the grounds of bail must depend upon the contextual facts and circumstances. 10. However, the delay in commencement of trial is a matter for concern. This Court by order dated 25.11.2019 had impleaded the Director, Forensic Science Laboratory, Thiruvananthapuram in order to ascertain the cause for delay in submitting the analysis report. It is brought to the notice of this Court that the item seized were initially allotted to the Serology Division for examination of presence of blood in dress materials of the accused and victim, weapons etc. Later, the items were transferred to the DNA division. There are about 65 packets and examination has commenced. The Director has reported that the examination of items shall be taken on top priority basis and the report of the case shall be forwarded to the court as early as possible. The learned Public Prosecutor on instructions submits that the report shall be forwarded, latest, within a period of three weeks from today. 11. The learned Sessions Judge has reported that 122 witnesses have been cited by the prosecution and if the forensic analysis report is Bail Appl..No.1007 OF 2019 8 received, the case can be disposed of within a period of four months. 12. Having considered all the relevant facts, I am not inclined to enlarge the applicant on bail. However, it is ordered that the report of forensic analysis from the Forensic Science Laboratory shall be forwarded to the Court of Session within a period of three weeks from today. On receipt of the said report, the learned Sessions Judge shall take up the trial on a priority basis and shall conclude the same within the period mentioned in the report dated 20.11.2019. A copy of this order shall be forwarded to the Director, Forensic Science Laboratory, Thiruvananthapuram. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS