## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 CRL.A NO. 1295 OF 2022**
**AGAINST THE ORDER/JUDGMENT IN CRMP 192/2022 OF SPECIAL COURT- OFFENCES UNDER SC/ST (POA) ACT,1989, KOTTARAKKARA APPELLANT/S:**
SALAHUDEEN KUNJU AGED 61 YEARS S/O. MAITHEEN KUNJU ALFEE BHAVAN PACHILAVALAVU VILAKKUDI VILLAGE KOLLAM- 691508, PIN - 691508 BY ADVS. BINDUMOL JOSEPH PUSHKARAKSHAN V.P B.SHAMNAD BEENA JOSEPH Suresh Kumar M.T.
## **RESPONDENT/S:**
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, PIN - 682031 2 LAKSHMI W/O. KOCHU CHERUKKAN AGED 65 YEARS KADUVANKODU HOUSE VILAKKUDI VILLAGE KOLLAM- 691508, PIN - 691508
## **OTHER PRESENT:**
PP M.C.ASHI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2023, ALONG WITH CRL.A.4/2023, THE COURT ON 20.3.2023 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1295/2022 and 4/2023
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 CRL.A NO. 4 OF 2023**
**AGAINST THE ORDER/JUDGMENT IN CRMP 218/2022 OF SPECIAL COURT FOR SC/ST (PREVENTION OF ATTROCITIES) APPELLANT/S:**
DAMEEJ AGED 23 YEARS S/O. SALAHUDEEN KUNJU, AGED 23 YEARS ALFI BHAVAN PACHILAVALAVU VILAKKUDI VILLAGE KOLLAM691508, PIN - 691508 BY ADVS. BINDUMOL JOSEPH B.SHAMNAD BEENA JOSEPH PUSHKARAKSHAN V.P Suresh Kumar M.T.
## **RESPONDENT/S:**
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, PIN - 682031 2 LAKSHMI W/O. KOCHU CHERUKKAN AGED 65 YEARS KADUVANKODU HOUSE VILAKKUDI VILLAGE KOLLAM- 691508, PIN - 691508
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2023, ALONG WITH CRL.A.4/2023, THE COURT ON 20.3.2023 DELIVERED THE FOLLOWING:**
Crl.Appeal Nos.1295/2022 and 4/2023
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## **JUDGMENT**
Dated this the 20[th] day of March, 2023
The appellants, father and son, are the accused in Crime No.1311 of 2022 registered at the Kunnikkode Police Station for the offences under Sections 449, 302, r/w 34 of IPC and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.
2. The prosecution allegation is that, at about 2.00 a.m. on 17.09.2022, the appellants trespassed into the house of deceased Anilkumar and beat him to death with stick and iron rod. The motive behind the attack is stated to be the animosity of the appellants against the deceased and his family, who belong to the Scheduled Caste, being their immediate neighbours. The provocation for the incident is the cutting down of certain branches of teak tree standing at the
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boundary of the property of the deceased, some of which fell into the property of the appellants. The appellants in Crl.Appeal No.1295 of 2022 was arrested on 20.09.2022 and the appellant in Crl.Appeal No.4 of 2023, on 21.09.2022. Their applications for bail having been rejected by the Special Court, these appeals are filed.
3. Learned Counsel for the appellants contended that the investigation being complete and final report having been filed, there is no justification in refusing bail to the appellants. Even otherwise, the appellants are entitled for bail since the crime has been falsely foisted on them. This will be evident from the fact that, with respect to an earlier incident, alleged to have taken place on 14.09.2022, no crime was registered. The authenticity of the prosecution version is also doubtful for the reason that, along with the ante mortem injuries, the Forensic Surgeon noticed sutured wounds on the head of the
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deceased. It is therefore evident that the deceased had sustained injuries on an earlier occasion and for some reason that incident was not reported to the police. The incident in which the deceased sustained the fatal injuries could be the continuation of the earlier incident and the appellants, who had nothing to do with the earlier attack, are falsely implicated. Moreover, the incident which led to registration of the crime, could not have happened in the manner alleged by the prosecution. The version of the
de facto complainant/mother of deceased is that,
at 2.00 a.m on 17.09.2022, while she was making tea in the kitchen, she heard her son's cry and on rushing to the spot, found the appellants beating Anilkumar with stick and iron rod. After the appellants' left the spot, Anilkumar lay bleeding on the ground and was taken to the hospital by about 3.00 a.m. Surprisingly, the FIR is registered only at 10.26 am on 17.09.2022,
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based on the de facto complainant's statement recorded at 8.40 a.m and no intimation was sent from the hospital, in spite of deceased Anilkumar having been brought to the hospital with fatal injuries. It is submitted that the appellants are willing to abide by any condition imposed by this Court while granting bail.
4. Learned Public Prosecutor stoutly opposed the prayer for bail, pointing out the gruesome manner in which a young man was beaten to death by the father and son duo. It is pointed out that, 49 ante-mortem injuries were noted on the dead body. As such, grant of bail to the appellants will give a wrong message to the society.
5. In her statement before the police, the mother of the deceased has given a graphic description of the incident. If the allegations are true, the reason for beating the young man to death is that he belonged to the Scheduled Caste
Crl.Appeal Nos.1295/2022 and 4/2023
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and happened to be the immediate neighour of the appellants. The provocation for the alleged attack is stated to be Anilkumar's act of cutting the branches of a tree on the boundary of the property, some which fell into the property of the appellants.
6. A perusal of the post-mortem certificate shows that the deceased had sustained 49 antemortem injuries. Even though, learned Counsel for the appellants submitted that the injuries noted at serial numbers 31 and 32 in the postmortem certificate are hypopigmented areas on the body of the deceased, the indisputable fact is that, out of the 49 injuries noted, 10 are lacerated and incised wounds on the head. This gives a clear indication that the assailants had attacked Anilkumar with intention to commit murder. The nature and gravity of the offence and the possibility of the family of the deceased being put to danger, deter this Court from
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granting bail to the appellants.
7. The factors to be considered while
deciding bail applications are enumerated as
under in _**Prasanta Kumar Sarkar v. Ashis**_
## _**Chatterjee [(2010) 14 SCC 496]**_ ;
_“It is well 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 accuse_ d 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
f _leeing, 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_
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_(viii) danger, of course, of justice being thwarted by grant of bail.”_
Applying the above principles, it can unhesitatingly be held that the bail applications
submitted by the appellants were rightly rejected
by the Special Court.
In the result, the appeals are dismissed.
Sd/-
**V.G.ARUN**
**JUDGE**
Scl/
