Jitheesh S/o KunjiKannan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA 1935** **Bail Appl..No. 2807 of 2013 () -------------------------------** **CRIME NO. 1399/2012 OF VATTIYOORKAVU POLICE STATION , THIRUVANANDAPURAM** **----------** **PETITIONERE A1:** **---------------** **JITHEESH S/O.KUNJIKANNAN, MORKOTH VEEDU, NEAR AKG VAYANASALA ERANJOLI VILLAGE, THALASSERI TALUK KANNUR DISTRICT(UNDER JUDICIAL CUSTODY)** **BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** **RESPONDENT:** **------------** **THE STATE OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE PEROORKDA POLICE STATION THIRUVANANTHAPURAM CITY REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERANAKULAM** **BY SRI.T. ASAF ALI, DIRECTOR GENERAL OF PROSECUTION.** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22.5.2013 ALONG WITH BA. 3026/2013, BA. 3335/2013, THE COURT ON 04-06-2013 PASSED THE FOLLOWING:** **VK** ## **S.S.SATHEESACHANDRAN,J.** ================================ B.A.2807,3026 & 3335 OF 2013 ================================ Dated this the 4[th] day of June,2013 ## ORDER The above applications are filed by some of the accused in Crime No.1399/12 of Vattiyoorkavu Police Station seeking their enlargement on bail. B.A.2807/2013 is filed by the first accused (A1), B.A.3026/2013 by the sixth accused (A6), and B.A.3335/2013 jointly by second and fourth accused in the crime. 2. The investigation of the crime is over with the final report already filed before court. By the time these petitions came up for hearing the case involving offence of murder exclusively triable by a Court of sessions has already been committed for trial, B.A.2807/2013 & connected cases 2 and it now numbered as S.C.553/2013 is pending for trial and disposal before the Additional Sessions Judge (Fast Track-III), Thiruvananthapuram. 3. Crime was registered over the murder of one Harihara Varma who claimed to be a member of a royal family, and, was engaged in the sale of diamonds and precious stones. Pursuant to a criminal conspiracy hatched by accused they committed murder of the above said Harihara Varma, and, petitioner (A6) had also screened the other accused (A1 to A5) giving a false version of occurrence before police and in fabricating false evidence to make out a case that he was also assaulted while Harihara Varma was murdered by his assailants, is the gist of the case. Accused persons involved in the crime were arrested within a few days after the occurrence, and on production before the Magistrate they had been remanded to judicial custody. The investigation of the crime completed and final report was laid before completion of 90 days of the detention of accused B.A.2807/2013 & connected cases 3 persons. While the investigation was going on, some of the accused had moved this court seeking their release on bail, but, those applications had been dismissed by me holding that they were not entitled to be released at that stage. Now the present applications are filed by the above accused persons after completion of investigation and filing of report, for their release on bail contending that their continued custody is not essential for a fair trial. 4. I heard the respective counsel appearing for petitioners and also learned Public Prosecutor. 5. Learned senior counsel appearing for A6 inviting my attention to the report filed in the case contended that even according to the prosecution case the other accused A1 to A5 were directly involved in the criminal conspiracy and the acts done in pursuance thereof in committing the murder of Harihara Varma. So far as A6 is concerned it is the case of prosecution that tempted by one among the accused that he would be B.A.2807/2013 & connected cases 4 given a share from the sale of diamonds, precious stones etc. he also joined them and later fabricated false evidence and supplied false information to police. Criminal culpability in the offences imputed against the petitioner (A6) stands substantially on a different footing from that of the other accused even according to the case of prosecution is the submission of counsel. Petitioner a practicing lawyer aged 68 years is suffering from various ailments and his continued detention would impair his condition irrecoverably is the further submission of counsel to urge for his release on bail subject to conditions as deemed fit and proper. Occurrence took place in a building belonging to the daughter of petitioner (A6) was also highlighted by learned counsel to contend that he could not have entered into any conspiracy with the other accused nor of joining them in committing the murder at that place. Adverting to that circumstance it is contended that the facility extended by him to Harihara Varma to B.A.2807/2013 & connected cases 5 have his business transaction with the other accused on the request so made by the victim had led to his implication as a co-accused with them for the grave offence of murder. 6. Learned counsel for A1 and A2 and A4 contended that now the investigation already over with report filed and case awaiting for trial after committal there is no justification for denying the accused persons bail which is essential to provide them reasonable opportunity to defend the grave accusation made. These accused persons are prepared to abide by any condition imposed by this court and there is absolutely no special circumstance for a custody trial is the further submission of counsel. Relying on **Sanjay Chandra** **v. CBI (2011 KHC 5051)** it is submitted by the counsel that seriousness of the charge imputed against the accused persons cannot be the sole governing factor in considering bail application. Continued custody of the above petitioners would result in denying them reasonable opportunity to B.A.2807/2013 & connected cases 6 defend the grave accusation imputed is the further submission of counsel to urge for their release on bail. 7. The applications are opposed by learned Public Prosecutor adverting to the material circumstances surrounding the murder of the victim, particularly, the brutality perpetrated by the accused persons, who were motivated by the greed for robbing diamonds and precious stones belonging to the victim. Murder was committed in broad day light at a place situated in a residential area and it was pursuant to a criminal conspiracy hatched to commit the crime and some of the accused A1 to A5 hail from far away places are also highlighted by learned Public Prosecutor to contend that if released on bail they are likely to flee away from trial. Threat and intimidation to witnesses from those accused is apprehended is the further submission. So far the sixth accused (A6), it is submitted, he has deliberately fabricated false evidence, intentionally gave false information to B.A.2807/2013 & connected cases 7 misdirect the investigation for screening the offenders and also enabled the other accused (A1 to A5) to escape from the scene of crime. Fabrication and falsification of evidence made by him with other circumstances involved in the case show grave criminal propensities of his mind and he is equally culpable with the other accused as indicted of, is the submission of learned public prosecutor to oppose his release on bail. 8. Case Diary has been produced for my perusal. While considering these petitions advertence to another aspect involved in the case also has to be noticed. Dismissing the previous application for bail moved by A6 (B.A.1811/2013) by order dated 25.3.2013 I have made some observations over the need for fixing the identity of the victim, known as Harihara Varma, who claimed to be a member of royal family. The investigating agency, it is stated, has not been so far able to track the identity of the victim though it has reached the conclusion that he had no connection with the royal B.A.2807/2013 & connected cases 8 family as claimed by him. Efforts are still being continued to unravel the mystery over that victim, his financial dealings continued over considerable period of time, is the submission of learned Public Prosecutor. In a murder case identity of the victim who was murdered has to be fixed. Of course failure to do so, that reason alone, would not enable the offender who committed the murder of a human being to escape from punishment if such murder is established by convincing legal evidence. The facts and circumstances of the case would show that a person who claimed to be Harihara Varma for more than a decade was murdered. He was stated to be a person dealing in precious stones and diamonds and also in real estate business. Nobody knew about his past. Further enquiry conducted constituting a Special Police team to solve the mystery over the identity of the victim, it is submitted, has revealed that in 2000-01 he resided in Coimbatore with two young girls aged around 17-18 years. Still, nothing more could be traced B.A.2807/2013 & connected cases 9 out is the submission of learned Public Prosecutor. In a case of this nature involving murder even if the investigating agency has come to a conclusion that to prove the indictment against the accused persons proceeded against the identity of victim is not absolutely essential, still, the ends of justice demand a detailed probe to fix the identity of victim. There is reason to suspect that the victim impersonating as a member of royal family carried on transactions over a period of time in precious stones diamonds, real estate business etc. Learned Public Prosecutor submitted before me that with all seriousness the enquiry for fixing identity of the victim and also over various dealings carried out by him will be pursued, and efforts will also be taken in association with various agencies including National Crime Control Bureau sending them the fingerprints of victim to ascertain whether he had any criminal background. Submission made by Public Prosecutor is recorded. Though investigation of the crime is over, on the B.A.2807/2013 & connected cases 10 facts and circumstances of the case, it is imperative that serious efforts should be made by the Police Force to fix the identity of the victim and also regarding financial transactions carried out by him when his identity remain a mystery. Whether the transactions carried by him, that too in diamonds and precious stones, have any larger criminal nature involving any unlawful activities with any association also may have to be looked into. Though the victim carried dealings in precious stones, diamonds etc. over a period of time posing himself as a member of the royal family no attempt is seen made by investigating agency to collect details over any such transactions despite observations made by this court over the need to do so with the probe for fixing his identity. **==> picture [397 x 10] intentionally omitted <==** submissions made by learned counsel for sixth accused (A6) that claim of that accused for bail has to be adjudged with reference to the accusation made against him in the report filed after B.A.2807/2013 & connected cases 11 investigation of the crime. He was not a party to the criminal conspiracy of murder hatched by A1 to A5, but, later during the course of assault on the victim as influenced by one among the accused with the promise of a share in the robbery he too joined them in committing various criminal acts is the case of prosecution. When such imputation is being taken with reference to the age of A6 and other circumstances canvassed I find he can be released on bail at this stage subject to conditions safeguarding fair trial of the case. I do not find any reason to doubt the submission made by learned counsel that the sixth accused who is pretty old is suffering from some ailments though no material over his illness has been placed. So far as the other petitioners are concerned, A1, A2 and A4, the materials gathered by investigating agency give strong room to suspect their complicity in the offences alleged. Apprehension expressed that they may flee from justice cannot be brushed aside. There is threat to witnesses from B.A.2807/2013 & connected cases 12 them if released on bail also has to be taken into consideration. I find they are not entitled to be released on bail. In Sanjay Chandra's case relied by the counsel for petitioner the Apex Court has pointed out that seriousness of the charge with the punishment that could be imposed after trial and conviction are relevant matters in considering the release of an accused on bail. In a case of murder where the accused are alleged to have committed such murder after a criminal conspiracy the materials gathered by investigating agency to indict them with surrounding circumstances of the case have necessarily to be taken note of for considering their release on bail. Having regard to such aspects I find that the above petitioners, A1, A2 and A4 are not entitled to be released on bail at this stage. _10. The Additional Sessions Judge_ _(Fast Track-III),Thiruvananthapuram before whom the Sessions Case is pending is directed to expedite the trial of the case and dispose it within a_ B.A.2807/2013 & connected cases 13 _period of eight months from the date of receipt of a copy of this order._ 11. Petitioners in B.A.No.2807 of 2013 and B.A.No.3335 of 2013 (A1, A2 and A4) are free to move an application for their release on bail before the Additional Sessions Judge once examination of material witnesses of the case is completed. If any such application is moved, it shall be considered in accordance with law on its merit. **==> picture [397 x 12] intentionally omitted <==** (B.A.No.2807/13 and B.A.3335/2013 are dismissed subject to the reservation made above. **==> picture [397 x 13] intentionally omitted <==** to sixth accused (A6) subject to the following conditions. **==> picture [292 x 11] intentionally omitted <==** execute a bond for Rs. One lakh with two solvent sureties for the like sum by each of them to the satisfaction of Additional B.A.2807/2013 & connected cases 14 Sessions Judge(Fast Track-III), Thiruvananthapuram. 2) He shall surrender his passport, if any, before the Additional Sessions Judge, within one week from the date of his release, and, if not in possession of passport, then, he shall file an affidavit affirming so within the period fixed above. 3) He shall not induce, intimidate, terrorize or influence any of the witnesses connected with the crime to dissuade them from speaking the truth before police or the court, as the case may be, and, nor do any act or make any attempt to obliterate the evidence of the crime. 4) He shall not leave Thiruvananthapuram District till B.A.2807/2013 & connected cases 15 the trial of the Case is over without getting prior permission in writing from the Additional Sessions Judge trying the case. Send a copy of the order to Additional Sessions Judge (Fast Track-III), Thiruvananthapuram, forthwith to inform the time limit fixed for trial and disposal of the Sessions Case. ## S.S.SATHEESACHANDRAN JUDGE tpl/-