Jithoos v. State of Kerala; Naamdev v. State of Kerala (Bail Applications No. 1891/2021 & 2551/2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** **Bail Appl..No.1891 OF 2021** **CRIME NO.859/2020 OF MUNAMBOM POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **JITHOOS, AGED 19 YEARS, PALAKKAL HOUSE, WEST SIDE OF ELLATHUPADY, EDAVANAKKAD, ERNAKULAM. PIN-682502** **BY ADV. SRI.C.Y.VINOD KUMAR** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** **R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** **SRI.C.K.SURESH – SR.PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.03.2021, ALONG WITH Bail Appl..2551/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A.No.1891 & 2551 OF 2021** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** **Bail Appl..No.2551 OF 2021** **CRIME NO.859/2020 OF MUNAMBOM POLICE STATION , ERNAKULAM** ## **PETITIONER/ACCUSED:** **NAAMDEV, AGED 19 YEARS, SON OF DEVARAJAN, CHOOLAKKAPARAMBIL, AYYAMPALLY, ERNAKULAM PIN-692501** **BY ADVS. SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SHRI.SAMEER M NAIR** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** **R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** **SRI.C.K.SURESH – SR.PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.03.2021, ALONG WITH Bail Appl..1891/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A.No.1891 & 2551 OF 2021** **3** ## **`COMMON ORDER`** ``` Dated this the 24thday of March, 2021 ``` ## **APPLICATIONS FOR REGULAR BAIL** ``` The applicant in B.A.No.2551 of 2021 is the 2[nd] accused, while the applicant in B.A.No.1891 of 2021 is the 3[rd]accused in Crime No.859 of 2020 of Munambam Police Station, Ernakulam, for having allegedly committed offences punishable under Sections 302, 120B, 212, 201 read with Section 34 of the IPC. Both have applied for regular bail, the third time before this Court. Their earlier two applications for bail were rejected by this Court giving by means of a detailed order explaining why they cannot be granted bail. The prosecution case, in a nutshell can again be reiterated as this: ``` ``` 2.On 22.09.2020, at about 4.15 AM, the deceased allegedly got information over his facebook account from a girl he was fond of and she had invited him to reach Pallathamkulangara Beach so that they could interact. ``` **B.A.No.1891 & 2551 OF 2021** **4** ``` Believing that the message he had received is from his girlfriend, he reached the scene of occurrence. In fact, it was not the girl, who sent the message. But, using her Facebook account, it was the 1[st]accused, who sent the message to the deceased because he was envious about the relationship between the deceased and the girl towards whom he also had a liking. He, therefore, hatched a conspiracy with the other accused, who are his friends to do away with the deceased and in accordance with that conspiracy, accused Nos.1 to 4 armed with deadly weapons like knife and wooden rafters lay-in-wait for the deceased to come there in accordance with the message which was passed over to him and on the deceased reaching there, he was mercilessly assaulted. The Postmortem report indicates 39 anti-mortem injuries which caused his death. The body was recovered much later and the inquest report was prepared at 10.30 AM. Rigour Mortis had already set in by that time. ``` ``` 3.The applicants state that they are innocent and the allegations are not true and that investigation has ``` **B.A.No.1891 & 2551 OF 2021** **5** ``` already been completed and the final report has been filed. Both these applicants are hardly out of their juvenility in their teenage years. And, therefore, they pray that they may not be detained any longer. It is true that the applicants are only 19 years of age. The 2[nd]accused has also questioned the fact that he is suffering from a disablement of loss of his right eye-sight, regarding which he had also produced documents. The prosecution points out that the 2[nd]accused is a criminal. He is involved in NDPS cases. But, the third accused does not have any criminal antecedents. ``` ``` 4.The earlier applications were dismissed mainly for the reason that the applicants were all youngsters and the deceased also was a youngster. But, for a very frivolous reason of the deceased being enamoured by a girlfriend of one of the accused, they hatched a conspiracy to do away with them which indicates their entirety. The motive for committing the alleged offence is established. There is CCTV footage and also statements under Section 164 Cr.P.C, of the girl, who was the girlfriend of the deceased. She has also given a statement that spells out an extra-judicial ``` **B.A.No.1891 & 2551 OF 2021** **6** ``` confession on the part of some of the accused. There is also an extra-judicial confession allegedly made to the Doctor. All these put together and the CCTV footage and the reasons for the assault are all questioned to service by the prosecution to prove its case against the accused. The fact that the applicants are just hardly out of teenage and that the third accused does not have any criminal antecedents alone will not help him getting bail. ``` ``` 5.The learned counsel appearing for the 3[rd]accused submits that it is with the intention to defeat the provisions under Section 167(2) Cr.P.C, that an incomplete charge sheet had been filed by the prosecution to defeat the statutory bail which the applicants were entitled to. I call for a report from the jurisdictional Magistrate which is stated that all the documents were produced along with the final report. But, certified copies of 164 statements of witnesses that were recorded could not be produced by the prosecution because they had not yet obtained the certified copies of those 164 statements. The fact that those documents were not produced along with the final report ``` **B.A.No.1891 & 2551 OF 2021** **7** ``` does not make that an incomplete final report. And, therefore, I do not find any reason to hold that the applicant is entitled to the benefit for that reason. Now all the records have been produced before the committal court and the copies have been furnished to the accused as submitted by the jurisdictional Magistrate. Therefore, that is also not a good reason for considering the bail application of the accused. ``` ## `6. The Honourable Supreme Court has held thus in` _**Kalyan Chandra Sarkar v. Pappu Yadav [2005 KHC 604: AIR 2005 SC 921] :**_ _"Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application."_ ``` Applying this rule to the case in hand, I find that going by the gravity of the offence which the applicants have committed, they do not require any mercy and there is no reason for a change in circumstances. They have to be tried in custody because there are several witnesses, who can be ``` **B.A.No.1891 & 2551 OF 2021** **8** ``` either intimidated or influenced by them and enlarging them on bail would jeopardise the prosecution case which has been already stated by me in my earlier orders. ``` ``` Therefore, the bail applications are dismissed once again and the trial court is directed to expedite the disposal. ``` ``` Sd/- ASHOK MENON JUDGE ``` ``` NR/24/03/2021 ```