Jaffar, Jaseer P.P. and Jamsheer P.P. v. State of Kerala and Others

B.A.No.3812/23 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945_ _BAIL APPL. NO. 3812 OF 2023_ _AGAINST THE ORDER/JUDGMENTCRMC 642/2023 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE_ ## _PETITIONER/ACCUSED 1 TO 3:_ _1 JAFFAR, AGED 37 YEARS, S/O.MOIDU HAJI PILAVALLATHIL HOUSE, CHALAPPURAM DESOM, NADAPURAM, KOZHIKODE DISTRICT, PIN – 673 504._ _2 JASEER P.P, AGED 28 YEARS, S/O.MOIDU HAJI PILAVALLATHIL HOUSE, CHALAPPURAM DESOM, NADAPURAM, KOZHIKODE DISTRICT, PIN – 673 504._ _3 JAMSHEER P.P, AGED 31 YEARS, S/O.MOIDU HAJI PILAVALLATHIL HOUSE, CHALAPPURAM DESOM, NADAPURAM, KOZHIKODE DISTRICT, PIN – 673 504._ _BY ADVS. S.RAJEEV M.S.ANEER V.VINAY SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R._ ## _RESPONDENTS/COMPLAINANT/STATE:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,_ B.A.No.3812/23 2 _HIGH COURT OF KERALA, PIN – 682 031._ _2 STATION HOUSE OFFICER, NADAPURAM POLICE STATION, (CRIME NO. 176/2023 OF NADAPURAM POLICE STATION, KOZHIKODE DISTRICT, PIN – 673 504._ _3 RUBEENA, W/O.JAFFAR, THATTARAM HOUSE, KEEZHAL POST, VADAKARA, KOZHIKODE IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 12/6/2023 IN CRL. M.A. 1/2023._ _BY ADVS. A.RANJITH NARAYANAN A.SIMI T.SHAJITH_ _SRI.C.S.HRITHWIK -SR.PUBLIC PROSECUTOR_ _THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ B.A.No.3812/23 3 ## **O R D E R** The petitioners are the accused Nos.1 to 3, in Crime No.176 of 2023 of Nadapuram Police Station. Initially, the crime was registered for the offences punishable under Sections 341, 323, 324, 354, 354(A)(1)(i) and 506 r/w 34 IPC. Subsequently, Section 326 IPC was added. 2. The de facto complainant is the wife of the 1[st] petitioner. The 2[nd] and 3[rd] Petitioners are the brothers of the 1[st] Petitioner. The prosecution case is that on 03.04.2023 at 4 PM, the accused persons came to the house of the de facto complainant, where she was residing along with the 1[st] petitioner, and insisted on handing over a pen drive, which was in her possession. It allegedly contained certain details about the 1[st] petitioner. Since the de facto complainant refused to hand over the same, the 1[st] accused beat the de facto complainant, and immediately she went to the bedroom and locked herself inside. Subsequently, by 7 O’clock, when she came out of the room, the petitioners assaulted her. It is alleged that the 2[nd] petitioner caught hold of her breast and hair and took her to the hall. When the de facto complainant resisted, the 1[st] petitioner covered her B.A.No.3812/23 4 mouth. Thereafter, they all had beaten her and kicked her all over the body. It is also alleged that the 2[nd] petitioner kicked on her right eye by wearing shoes. It is alleged that all this time they were requiring the de facto complainant to hand over the pen drive. Thereafter the de facto complainant was taken to another place in a car. While so, the de facto complainant got the opportunity to send a message to her family members, and they came and rescued her. The crime was registered on the next day for the offences mentioned above. As the petitioners apprehend arrest in connection with the investigation of this case, this application for anticipatory bail is submitted. 3. Heard Sri.S.Rajeev, learned counsel for the petitioners, Sri.T.Shajith, learned counsel for the de facto complainant and Sri.C.S.Hrithwik, learned Public Prosecutor for the State. 4. The learned counsel for the petitioner submits that the petitioners are innocent of all the allegations. According to him, the incident is only a matrimonial dispute between the petitioner and the de facto complainant. According to him, the de facto complainant is having an illicit affair with another person, and he B.A.No.3812/23 5 got all the details with him. Similarly, the de facto complainant also possessed a pen drive, which claimed to contain certain information about the 1st petitioner. The dispute arose in connection with the same. It is vehemently contended by the learned counsel for the petitioner that under no circumstances the offence under Section 354 and 326 IPC, which are the non bailable offences, would be attracted. 5. The learned counsel for the petitioners contends that, as far as the offences under Section 326 IPC is concerned, even going by the statement of the victim, there is no indication as to the use of any weapon as described under Section 326 IPC. Reliance was placed upon the decision rendered by this Court in **Praveendas v. State of Kerala and Ors [2019 (4) KLT 815]** . Similarly, as far as the Section 354 IPC is concerned, it is pointed out that, the statement would not reveal any intentional act on the part of the petitioners for outraging the modesty of women. At the most, it can be taken as an assault simpliciter, which would not come within the ambit of the offence under Section 354 IPC. In such circumstances, the learned counsel for the petitioners contends that the custodial interrogation of the petitioner is not necessary, and the B.A.No.3812/23 6 petitioners are ready and willing to cooperate with the investigation. 6. The learned Public Prosecutor would oppose the aforesaid application by pointing out that the wound certificate of the victim would indicate that she sustained a fracture which amounts to a grievance hurt as defined under Section 320 IPC. Since the said grievous hurt was caused by the 2[nd] accused when he kicked the eyes of the de facto complainant, by wearing shoes, such shoe can be treated as a weapon of assault. The matter is under investigation, and therefore dismissal of the bail application is sought by the learned Public Prosecutor. Learned counsel for the de facto complainant also supports the contention of the learned Public Prosecutor. The learned counsel for the de facto complainant also reiterates the averments contained in the petition submitted by the de facto complainant in the impleading petition. In response to the contention of the learned counsel for the petitioner as to the applicability of the offence under Section 326 IPC, it was contended by the learned counsel for the de facto complainant that the expression used in Section 326 IPC is that includes “any instrument which used as weapon B.A.No.3812/23 7 of offence”, which is very wide enough to take in the shoes also, when the injury is inflicted upon the delicate part of the human body. According to him, as per the statement of, the victim, the injury was caused by the 2[nd] petitioner by kicking the eyes of the victim by wearing shoes. Therefore, shoes can be treated as an instrument used as a weapon of offence under Section 326 IPC. It is pointed out that consequent to the assault committed upon the de facto complainant, she is now undergoing treatment and suffering from partial blindness. In such circumstances, dismissal of the application is sought. 7. I have gone through the records and heard the contentions of all the parties concerned. One of the crucial contentions raised by the learned counsel for the petitioners is concerning the materials for attracting the offence under Section 326 IPC. According to him, even as per the statement of the victim, no weapon of offence, as described in section 326 was used. This contention was raised because the allegation was that the injury was caused by kicking on the eyes by wearing shoes. The learned counsel for the petitioners in this regard places reliance upon the decision rendered by this Court in B.A.No.3812/23 8 **Praveendas’s case** (supra), wherein this Court, after referring to a Division Bench decision of Karnataka High Court in **State of** ## **Karnataka v. Parashram Kallappa Ghevade & Ors.[2007 Cri.** **LJ 479]** , made certain observations in a case where a firewood was used to commit the assault. It is pertinent to note that, as per the observations made by the Karnataka High Court in the **Parashram Kallappa Ghevada’s** case (supra), in the absence of various factors such as the size of stick or its sharpness, it would be rather difficult to categorize the stick used as one coming under the category of 'dangerous weapon'. By placing reliance upon the said observations, this Court in **Praveendas** (supra) arrived at a conclusion for the purpose of anticipatory bail that, a firewood piece cannot be treated as an article which would come in the description of the weapon under Section 326 Cr.P.C. The said case also arose in connection with a matrimonial dispute. 8. I have carefully gone through the contents of the said decision. Observations therein were made in the particular facts and circumstances of that case. The conclusion entered by this Court in the aforesaid decision cannot be made applicable in the facts of this case, mainly because, to qualify an article as a B.A.No.3812/23 9 weapon, several aspects have to be taken into consideration, which may vary from case to case. It depends upon the manner in which the said instrument was used, the exact point of the human body it was applied, nature of that part of the body, injury that is likely to cause from use of such instrument etc. In this case, the specific case of the prosecution is that the 2[nd] petitioner kicked on the eyes of the de facto complainant after wearing shoes. Therefore, considering the fact that the shoes were used for inflicting injury on an important and delicate organ of the body of a person, it can be treated as a weapon depending in the facts and circumstances of the case. Therefore, even though I am not venturing to go deep into such an issue, I find, in the facts of this case that, for the limited purpose of this application, the said contention of the petitioner is not sustainable. It is also to be noted in this regard that in the decision rendered by the Karnataka High Court, apparently, the reason on which such observation made was that, in the absence of various factors such as size, thickness, sharpness etc, of the weapons used for assault, it cannot be treated as dangerous weapon. Therefore, the size, thickness, sharpness etc. of the weapon/instrument are also B.A.No.3812/23 10 relevant factors for deciding such questions and hence the said aspects are the subject matter of investigation, which necessitates recovery of the said article, for which interrogation of the accused may be necessary. 9. Next contention is concerning the offence under Section 354 IPC and the specific case is that the acts allegedly committed by the petitioner would not attract the aforesaid offence. The learned Public Prosecutor pointed out that in the statements of the victim, it is mentioned that the 2[nd] accused has caught hold of her chest and hair. Evidently, there was a scuffle, and the de facto complainant was allegedly being assaulted at the relevant time. Therefore, the question whether the aforesaid acts were committed by the petitioner with the intention to outrage the modesty of the woman is doubtful. However, I do not intend to enter into any specific finding, as the matter is under investigation. 9. When going through the nature of the allegations raised, as contained in the statement of the victim, it can be seen that a series of assaults were made, which appear to be pre-determined. The prosecution also suggests the motive of B.A.No.3812/23 11 assault as, to procure a pen drive from the de facto complainant. Of course, this is a matrimonial dispute between the parties. However, the entire sequence of events, as revealed from the nature of the allegations raised, I am of the view that this is not a fit case in which anticipatory bail can be granted to the petitioner. Since I have already found that this can be a case which would prima facie attract the offence under Section 326 IPC, the natural consequence thereof is that the recovery of the weapon is to be affected. Therefore, the release of the petitioner by granting anticipatory bail may not be in the best interest of justice. In such circumstances, I do not find any justification for entertaining or considering this application, and it is accordingly dismissed. Sd/- ## **ZIYAD RAHMAN A.A.** **JUDGE** DG/16.6.23 B.A.No.3812/23 12 ## _APPENDIX OF BAIL APPL. 3812/2023_ _PETITIONER ANNEXURES_ _Annexure I TRUE COPY OF THE FIR IN CRIME NO 176/2023 OF NADAPURAM POLICE STATION DATED 04.04.2023_ _Annexure II TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM PARCO INSTITUTE OF MEDICAL SCIENCE_ _Annexure III TRUE COPY OF THE ORDER PASSED BY THE SESSIONS COURT, KOZHIKODE DATED 04.05.2023_ _Annexure IV TRUE ACCUSED COPY OF THE ORDER PASSED BY THE HON'BLE COURT OF SESSIONS IN CRL M.C NO 642/2023_