Jasil A.J v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ``` BAIL APPL. NO. 9290 OF 2023 ``` ``` CRIME NO.870/2023 OF ELAMAKKARA POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER DATED 06.07.2023 IN CRMC 1828/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## `PETITIONER:` ``` JASIL A.J, AGED 31 YEARS, S/O JALEEL, ARAKKAL VEETIL HOUSE, THRITHALLUR DESOM, VADANAPPILLY VILLAGE, CHAVAKAD TALUK, THRISSUR DISTRICT, PIN – 680506 ``` ``` BY ADVS.S.A.ANAND NANDAGOPAN M.C. ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` PP SMT NIMA JACOB ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.9290/2023 -:2:- Dated this the 15[th] day of January,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.870/2023 of Elamakkara Police Station, Ernakulam, registered against the petitioner for allegedly committing the offence punishable under Section 302 of the Indian Penal Code,1860. The petitioner was arrested on 05.06.2023. 2. The gist of the prosecution case, is that: the accused and a lady named Lincy Agnus (deceased) were residing in room in the third floor of Hotel Baha, Edappally, Ernakulam, on the promise made by the deceased that, she would arrange a marriage certificate and would take the accused abroad. But, on 02.06.2023, at 11.20 p.m., while the accused examined the chats on the deceased’s mobile phone, he found that the deceased had in personated herself as Ann and B.A.No.9290/2023 -:3:- contacted him through several phone chats. The accused got infuriated by the act of the deceased in attempting to cheat him, and then, he fisted her and beat her several times on her face and, thereafter, he kicked her and threw the wardrobe on her, whereby she hit the ground and and fell unconscious. The accused kept the deceased in his custody without giving proper medical treatment to ensure her death. Subsequently, she had an internal brain hemorrhage and lost her life. Thus, the accused has committed the above offences. 3. Heard; Sri. S.A.Anand, the learned counsel appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is falsely implicated in the above crime. The deceased was suffering from B.A.No.9290/2023 -:4:- various ailments. She lost her life due to a fall in the bathroom. Actually, the petitioner had informed the parents of the deceased regarding her fall and she was taken for treatment to the hospital, where she lost her life. The petitioner is totally innocent of the accusation levelled against him. He has no criminal antecedents. The petitioner is willing to abide by any stringent condition imposed by this Court. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the death was caused only due to the act of the petitioner, who has committed a heinous offence. The investigation in this case is complete and the final report has been laid. The committal proceedings are in progress before jurisdictional Magistrate. If the petitioner is let off on bail, there is every likelihood of him influencing the witnesses and tampering with the evidence. B.A.No.9290/2023 -:5:- Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, the petitioner caused the death of the deceased, on 05.06.2023 by assaulting the deceased and pushing down a wardrobe on her, whereby she fell down unconscious and suffered an internal brain hemorrhage. Yet the petitioner did not take the deceased to hospital, which resulted in losing her life. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], the Hon’ble Supreme Court has observed as follows: “9. …...... 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 accused 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 fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; B.A.No.9290/2023 -:6:- (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” ## 8. The Hon’ble Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 9. In a recent decision the Hon’ble Supreme Court in **P. Chidambaram v. Directorate of** B.A.No.9290/2023 -:7:- **Enforcement** [2019 SCC Online SC 1549], has gone on to hold that if an applicant can satisfy the Court of the tripod test i.e., the absence of (i) flight risk (ii) tampering with the evidence and (iii) influencing the witnesses, then, the bail can be granted. 10. On a comprehensive appreciation of the facts and circumstances of the case, and the materials on record, particularly taking into consideration the gravity, nature and seriousness of the accusation levelled against the petitioner, the severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction and the apprehension of the prosecution that the petitioner is likely to intimidate the witnesses and tamper with evidence and taking into account the deleterious impact on the society, I am of the definite view that the petitioner is not entitled to be released on bail, especially since there is a danger of justice being B.A.No.9290/2023 -:8:- thwarted. The application is meritless and is only to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/15.01.24 //True copy// P.A. To Judge