Krishnankutty, Akhil Kutttan, and Yesudasan @ Sunil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **BAIL APPL. NO. 4376 OF 2022** **CRIME NO.717/2022 OF Kundara Police Station, Kollam** ## **PETITIONERS/ACCUSED NOS.1 TO 3** - **1 KRISHNANKUTTY AGED 58 YEARS S/O.NARAYANAN, ASWATHI, KOYICKAL BHAGOM, PERUVELIKKARA P.O, PADINJARE KALLADA, KOLLAM, PIN - 691503** - **2 AKHIL KUTTAN AGED 32 YEARS S/O.KUTTAPPAN, MADANVILAVADAKKATHIL HOUSE, PUNAKKANNOOR, PERUMBUZHA, KOLLAM DISTRICT., PIN - 691504** - **3 YESUDASAN @ SUNIL AGED 48 YEARS S/O.ESTHAPPAN, CHIRAYARUKIL PUTHENVEEDU, KOTTAPPURAM, MULAVANA P.O, KOLLAM, PIN - 691503** **BY ADVS. NIREESH MATHEW C.C.THOMAS (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADVS. PUBLIC PROSECUTOR DIRECTOR GENERAL OF PROSECUTION(AG-10) P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR()** ## **OTHER PRESENT:** ## **ADDL.PP - SRI. P.NARAYANAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.4376 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A. No.4376 of 2022 .................................................................** Dated this the 17[th] day of June, 2022 ## **ORDER** This is an application for regular bail. 2. Petitioners are accused 1 to 3 in Crime No.717 of 2022 of Kundara Police Station alleging commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code (in short, “IPC”). 3. Prosecution case, in brief, is that the victim Prabin Demai, a native of Nepal was an employee of a restaurant named 'Adukkala Family Restaurant'. On 05.05.2022 at around 10.15 p.m. Victim Prabin Damai had reached at the local bar of Royal Fort Bar Hotel, Kundara for consuming liquor and had gone out. Thereafter when the bar was about to close, victim Prabin Damai again tried to enter the bar. Then the 2[nd] accused who was the security of the said bar prevented the victim Prabin Damai from entering the bar and asked him to go out of the bar compound. But the victim refused to go out. Enraged by the same, accused 1 to 4 jointly, indiscriminately manhandled the victim Prabin Damai and hit his head against the wall and caused grievous injuries. The victim succumbed to the injuries on 06.05.2022 at around 6.00 a.m. and thereby the accused committed the offences alleged. BA No.4376 of 2022 3 4. The case of the petitioners is that they are totally innocent of the offences alleged against them and in fact what actually happened was that the deceased came to the hotel and demanded liquor which was refused by the employees as the bar normally closes at 10.30 p.m. as the maximum permitted time is only upto 11.00 p.m. Since the liquor was not served as per his demand, the deceased become angry and violent and attacked the employees with filthy language. On seeing this the 2[nd] petitioner who is the security guard tried to block the victim from forcefully entering the bar and when the deceased tried to attack the 2[nd] petitioner, the other petitioners along with some other customers who were present there have blocked the victim from hitting the 2[nd] petitioner and this infuriated him and violently turned out towards the other petitioners and other people present there which led to a scuffle and the victim was hit by many persons who were present there. On seeing the scuffle the petitioners who are employees of the bar hotel intervened and tried to push the victim out of the hotel compound. Immediately thereafter the petitioners and other employees informed the police that the victim is turning violent and creating issues in the hotel compound and requested to take appropriate action. The police party subsequently arrived there and the victim person turned violent towards the police officials also. Thereafter the victim was taken to the hospital by the police party. The cause of death is not known and there is no allegation of using of any weapons and there is BA No.4376 of 2022 4 no motive or intention on the part of the petitioners to kill the deceased. 5. Heard the learned Senior Counsel for the petitioners and the learned Public Prosecutor. 6. The learned counsel for the petitioners submitted that even if the allegations are admitted in toto, the offence under Section 302 is never attracted in this case as the petitioners did not have an intention or knowledge for committing an offence of murder. To bring home the point, the learned counsel relies on the judgment in **Thomas v. State of Kerala (1991 KHC 392)** and also the decision in **Raju P.M. v. State of Kerala and others (2021 (1) KLD 811)** . Learned counsel also relies on the judgment of the Apex Court in **Sushil Ansal v. State through CBI** , reported in **(2014) 6 SCC 173** to contend for the position that the act of the accused must be proximate,immediate or efficient cause of death of the victim to attract the liability under Section 304A IPC and contended that in the present case offence under Section 302 or 304 is not attracted. It is also submitted that petitioners have no other criminal antecedents also. 7. Learned Public Prosecutor upon instructions submitted that the investigation is only at the initial stage and that accused 1 to 4 jointly, indiscriminately and brutally manhandled victim and hit his head against the wall and caused grievous injuries. Thereafter accused 1 to 4 jointly took the victim and put him outside the bar compound and thereafter the 2[nd] accused thrashed the victim brutally. It is also submitted upon instruction BA No.4376 of 2022 5 that the 5[th] accused has also attacked the victim by using a lathi and that the victim succumbed to the injuries on 06.05.2022. Learned Public Prosecutor on the strength of the postmortem certificate dated 07.05.2022 submitted that there are 33 ante-mortem injuries on the body of the victim. As per the statement of the doctor who conducted the postmortem examination, ante-mortem injuries in the body were blunt injuries on face, neck, left side of head, upper-limbs and trunk and that there were contains on either side of neck which might have caused asphyxia leading to death. It is further stated by the doctor that there was brain edema which may be either due to the impact on the head or due to asphyxia following blunt injury to face and neck. It is further submitted by the learned Public Prosecutor that even one of the employees of Royal Fort Bar Hotel, Kundara has also given statement which clearly reveals the involvement of the petitioners in the alleged incident. Learned Public Prosecutor further submitted that as the investigation in the case is continuing and the main witnesses are employees and customers of the bar in which the petitioners are employees, if bail is granted to the petitioners, there is every chance that the petitioners will influence the witnesses of this case. It is also submitted that the 4[th] accused in the crime is absconding. 8. I have gone through the decisions referred to by the learned Senior Counsel appearing for the petitioners. It is pertinent to note that the decisions relied on are rendered in criminal appeals filed against BA No.4376 of 2022 6 conviction. The decision in **Thomas** 's case (supra) was a case where the accused hit by his hand on the face of the victim and he later succumbed to the injuries.The decision in **Raju P.M** .(supra), relied on by the learned Senior Counsel appearing for the petitioner was in respect of a boat tragedy in which 15 young children were drowned, in which it is held that a mere knowledge that if there is overloading on a boat, there is possibility of boat sinking, is not the required knowledge contemplated under Section 304 IPC to bring home a case of culpable homicide. I think the decisions referred to by the learned Senior Counsel are not applicable in the facts and circumstances of the case on hand since this is a case where the victim was brutally attacked by the petitioners and going by the postmortem certificate almost 33 ante-mortem injuries were noticed. I find considerable force in the contention of the learned Public Prosecutor that if the petitioners are released on bail, there is every chance to influence the witnesses and it will affect the fair and proper investigation of the case. The investigation is in the initial stage and that one of the accused is still absconding. The Apex Court has settled in clear terms the factors among other circumstances which are required to be considered while granting bail and has held that the nature of the accusation and the severity of punishment in case of conviction and reasonable apprehension of tampering with the evidence and influencing the witnesses are all matters that should weigh with the court in the matter of grant of bail. Taking all BA No.4376 of 2022 7 these aspects into consideration I feel that petitioners are not entitled for grant of bail at present. Bail application is accordingly dismissed. It is made clear that the observations made above are only for the purpose of consideration of this bail application. Sd/- **VIJU ABRAHAM JUDGE** cks BA No.4376 of 2022 8 ## **APPENDIX OF BAIL APPL. 4376/2022** |**PETITIONER ANNEXURES**|| |---|---| |**Annexure1**|**TRUE PHOTOCOPY OF THE ORDER DATED 23.05.2022**| ||**IN CRL.MP.NO.731/2022 PASSED BY THE JUDL.**| ||**FIRST CLASS MAGISTRATE COURT-I, KOLLAM.**| |**Annexure2**|**FREE COPY OF THE ORDE DATED 02.06.2022 IN**| ||**CRL.MC.NO.1087/ 2022 PASSED BY THE SESSIONS**| ||**COURT, KOLLAM**| |**Annexure3**|**TRUE PHOTOCOPY OF THE DECISION REPORTED IN**| ||**1991 KHC 392 -THOMAS VS. STATE OF KERALA**|