Kuttan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **Bail Appl..No.6289 OF 2020** **IN CRMP 614/2020 DATED 12-08-2020 OF DISTRICT COURT & SESSIONS COURT,KOLLAM** **CRIME NO.1584/2019 OF Kollam East Police Station , Kollam** ## **PETITIONER/ACCUSED:** **KUTTAN AGED 37 YEARS PUSHPA BHAVAN, SANKAR NAGAR, PULLIKKADA, VADAKKUMBHAGAM CHERRY, KOLLAM EAST VILLAGE, KOLLAM DISTRICT -691001** **BY ADVS. SRI.PRATHEESH.P SMT.S.REKHA KUMARI SMT.S.SEETHA SMT.ANJANA KANNATH** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031** **BY ADVS. SRI.S.SAJJU, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 B.A No.6289/2020 ALEXANDER THOMAS, J. -----------------------------------B.A No.6289 of 2020 -----------------------------------Dated this the 4[th] day of November, 2020 ## **O R D E R** The petitioner herein has been arrayed as accused No.2 among the 2 accused in the instant crime No. 1584/2019 of Kollam East Police Station which has been registered for the offences punishable under Secs. 302, 323, 201 r/w Sec.34 of the IPC. The crime has been registered initially under the provisions of Sec.57 of the Kerala Police Act as a person missing case on the basis of the petition/complaint given by the daughter of the deceased that she was missing and accordingly, the abovesaid crime was registered on 15.09.2019. The Police after investigation could retrieve the dead body later on 12.10.2019 and thereafter, A1 was arrested and remanded on 12.10.2019 in this case and the petitioner herein (A2) was arrested and remanded on 14.10.2019. 2. The brief of the prosecution case is that A1 is the son of the deceased lady victim Savithri, that A1 and the deceased lady victim were residing together in their house and that A1 had animosity towards his deceased mother due to a property dispute and A1 had 3 B.A No.6289/2020 demanded her to transfer he said property in his name, which she had consistently refused. That on 3.9.2019 at about 5.00 p.m., A1 with intention to commit murder of his mother Savithri had assaulted and made her weak and strangulated her and thereby she had fell unconscious and died. Later, A1 had called the petitioner herein (A2), who is an autorickshaw driver, to help him burying the deceased Savithri and A1 had gone to the residence of the deceased victim in his autorickshaw and both of them had dug a huge pit and buried the lady victim. Further that, the investigation has revealed that before the lady victim was actually placed in the pit, the accused persons had seen some movement in the body of the lady victim, in order to ensure that the victim is really dead, A1 and A2 had stamped her on the chest, which resulted in fracture of her ribs as revealed in the subsequent post mortem certificate and that thereafter they had placed the body of the deceased lady in the said pit and buried it and covered in the sand. The learned Prosecutor would point out that the statement of the doctor would reveal that he has noted that sand particles were present in the upper thyroid of the victim’s esophagus and that this is suggestive of the fact that the lady would have breathed her last, only after being buried in the pit and that she was 4 B.A No.6289/2020 alive even at the time when she was placed in the pit. Further that, the Prosecutor would also point out that the post mortem certificate which has revealed that the lady victim has suffered fracture on her ribs, is also corroborative of the abovesaid aspects regarding the act of the accused in stamping on her chest to ensure that she is really dead. 3. Sri.P.Pratheesh, learned counsel appearing for the petitioner submits that the abovesaid allegations raised against his party are false and baseless and further that it is reliably learned that the Forensic Science Laboratory is delaying the submission of their report and moreover in view of the Covid-19 pandemic issues, the trial may not be completed within the immediate foreseeable future and may be prolonged for a very long time and that the petitioner has already suffered incarceration in this case for the last more than one year and 21 days after his arrest or remand on 14-10-2019 and that his further incarceration is not required and that he may be ordered to be released on regular bail, subject to any stringent conditions. 4. Whereas, Sri.S.Sajju, learned Public Prosecutor would strongly oppose the plea for regular bail and would submit that the allegations raised in this crime are very grave and serious and that it 5 B.A No.6289/2020 is very highly likely that the petitioner may tamper with the evidence or intimidate and influence the witnesses, if he is let off on bail and that some of the crucial witnesses are immediate neighbours of A1, who also lives in the close proximity and vicinity of the petitioner’s (A2) residence and that the prosecution agency has strong reason to believe that the petitioner may abuse his freedom and will intimidate and influence the witnesses, if he is let off on bail. 5. This Court has already passed series of orders on previous occasions and dismissing the application for regular bail filed by the petitioner in the very same crime on various occasions. After hearing both sides, as of now, there are no reason for this Court to deviate from the said reasonings made by this Court in orders as in Anxs.2 to 5 herein. The Apex Court has held in various decisions as in _**P.V Chidambaram v. CBI**_ (AIR 2019 SC 5272) that the following parameters are to be taken into consideration while considering the application for grant of bail: - _(i) The nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;_ - _(ii) Reasonable apprehension of tampering with the witnesses_ 6 B.A No.6289/2020 _or apprehension of threat to the complainant or the witnesses;_ - _(iii) Reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence;_ - _(iv) Character behaviour and standing of the accused and the circumstances which are peculiar to the accused;_ - _(v) Larger interest of the public or the State and similar other considerations._ 6. True that whether there may not be any hard and fast rule for grant or refusal of bail and the golden rule is that each case will have to be decided on the basis of the facts and attendant circumstances in that case and it may not be possible to envisage any fixed formula for regulating the grant of bail. 7. It has been held by the Apex Court in various decisions as in _**State of U.P through CBI v. Amarmani Tripathi**_ [(2005) 8 SCC 21], _**Prahlad Singh Bhati v. NCT, Delhi & another**_ [(2001) 4 SCC 280], _**Ram Govind Upadhyay v. Sudarshan Singh & Others**_ [(2002) 3 SCC 598] and _**Pratapbhai Hamirbhai Solanki v. State of Gujarat and another**_ [(2012) 7 B.A No.6289/2020 - 10 SCALE 237], that the following aspects may be borne in mind while deciding on questions regarding grant of bail: - _(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;_ - _(vii) reasonable apprehension of the witnesses being influenced; and_ - _(viii) danger, of course, of justice being thwarted by grant of bail and finally_ - _(ix) the larger interest of the public or the State._ 8. Applying the abovesaid principles in the factual background of this case, this Court is constrained to take the view that it may not be right and proper for this Court to enlarge the petitioner, who is accused of offence as per Sec.302 of the IPC, on regular bail and the 8 B.A No.6289/2020 apprehension of the prosecution about the serious likelihood of the petitioner intimidating and influencing the witnesses, who are mainly living within a close vicinity of his residence, cannot be in any manner strongly ruled out by this Court. The allegations are quite serious and grave and the contentions of the petitioner that the prosecution has not brought in any materials to connecting with the serious offence as per Sec.302 of the IPC, cannot be accepted by this Court for the purpose of consideration of his application. 9. The learned Public Prosecutor would submit that the prosecution agency would seriously co-operate with the conduct of the trial and that though there are serious problems in having an expeditious trail in view of the Covid-19 pandemic issues, the prosecution would take all reasonable endeavours to ensure that the trial in this case is completed within 6 to 8 months from the date of framing of charges, if provided all the parties and the witnesses fully co-operate with the Sessions Court and subject to the convenience and workload of the Sessions Court. 10. This Court had directed the II[nd] Addl. Sessions Court, Kollam, who is dealing with the instant Sessions Case, S.C No.245/2020 to give a report to the Registry of this Court, regarding 9 B.A No.6289/2020 the present stage of the case and reasonable time frame required for the completion of trail. The Sessions Court concerned has now given report dated 02-11-2020 to the Registry of this Court, wherein it has been _inter alia_ submitted that the charge in this case has not so far been framed by the Court in S.C No.245/2020 as the FSL report has not so far been received from the Forensic Science Laboratory, Thiruvananthapuram. Further that there are 69 charge witnesses in the case and the evidence includes most modern investigation technique results as can be seen from final report and that after receipt of the FSL report, the Sessions Court will take necessary steps in the matter of framing of charges and that thereafter the trial could be completed without much delay, etc. 11. The learned Prosecutor would submit that strict instructions will be given to the FSL authorities to ensure that the FSL report in this case is duly finalised and submitted to the Court, without much delay. 12. Accordingly it is ordered that the Director of the Forensic Science Laboratory, who is now in the process of preparing their expert report, will ensure that the finalisation of the matters for the submission of the expert report of the FSL in S.C No.245/2020 10 B.A No.6289/2020 (arising out of crime No.1584/2019 of Kollam East Police Station), is duly completed without much delay, preferably within a period of two months from the date of production of a certified copy of this order. 13. The Director General of Prosecution is requested to immediately intimate the Director of the Forensic Science Laboratory concerned about this direction and to instruct the said FSL authorities to ensure the finalisation and submission of the FSL report in this case, without any further delay. After receipt of the FSL report, the Sessions Court concerned may finalise further steps in the matter of framing of charges in S.C No.245/2020, without much delay, preferably within a period of one month from the date of receipt of the FSL report. Thereafter the Sessions Court concerned may take all reasonable endeavours to ensure that trial in S.C No.245/2020 is duly completed, without much delay, preferably within six to eight months from the date of framing of charges, provided all the parties and witnesses fully co-operate with the said Court in the completion of the trial, taking into consideration the various imponderables arising out of the Covid-19 pandemic issues. It is for the Sessions Court concerned an appropriate time line is laid 11 B.A No.6289/2020 down by it to ensure the conduct of the trial and any unforeseen delay that may occur on account of Covid-19 pandemic issues or any other aspects, may be appropriately dealt with by the Sessions Court concerned to ensure that the trial is completed without much delay in a time line that is appropriately found reasonable and proper by the said Court. 14. The Registry will forward a copy of this order to the II[nd] Additional Sessions Court, Kollam, who is dealing with S.C No.245/2020, for necessary information and further action. 15. The Director General of Prosecution will send a copy of this order to the Director, FSL for necessary information and further action. With these observations and directions the above Regular Bail Application will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** KAS