M.S Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **Bail Appl..No.4421 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 188/2020 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **CRIME NO.334/2019 OF Kodenchery Police Station , Kozhikode** ## **PETITIONER/ACCUSED:** **M.S MATHEW AGED 44 YEARS MANJADIYIL HOUSE, KAKKAVAYAL, KAKKAD, KOZHIKODE, PIN - 673 306. 673306** ## **BY ADV. SRI.SHARAN SHAHIER** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. 682031** ## **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** ## **OTHER PRESENT:** ## **SRI.SUMAN CHAKRAVARTHY SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 7.8.2020, THE COURT ON 08.12.2020 PASSED THE FOLLOWING COMMON ORDER, ALONG WITH Bail Appl..5318/2020 FINALLY HEARD ON 11.09.2020 :** BAs 4421 & 5318/2020 2 ## **ASHOK MENON, J. -----------------------------------BA Nos.4421 and 5318 of 2020** ------------------------------------- **Dated this the 8[th] day of December, 2020** ## **COMMON ORDER** Applications for regular bail under Section 439 of the Cr.P.C. 2. The applicant in BA 5318/2020 is the 1st accused while the applicant in BA 4421/2020 is the 2nd accused in Crime No. 334/2019 of Kodenchery Police Station for having allegedly committed offences punishable under Sections 110, 120B, 307 and 302 read with Section 34 of the I.P.C. and under Section 2 read with Section 6(2) of Poisons Act 1919. 3. The prosecution case, in brief, is that owing to the previous enmity that the 1st accused had towards the deceased Manjadiyil Mathew, the maternal uncle of her deceased husband late Roy Thomas, she allegedly hatched a conspiracy with A2 and A3 and administered cyanide that she had obtained from the A3 through A2 BAs 4421 & 5318/2020 3 to the aforesaid Mathew by mixing it with water and liquor served to him between 15:30 hours and 17:20 hours, on 24/02/2014 resulting in his death by about 7 PM on that day at Shanthi Hospital, Omassery. 4. The first accused had allegedly administered dog poison and cyanide to eliminate all her victims. She had allegedly developed intimacy with A2 M.S.Mathew @ Shaji, as her husband Roy Thomas had become a drunkard. A1 hatched a conspiracy to commit the murders with the help of A2 and A3. Cyanide was obtained from the jewellery shop of A3 by A2, who was a salesman and was acquainted with him. 5. The reason for the serial killings, according to the prosecution, was thus: The first accused had resided with her late husband Roy Thomas and his parents for about 14 years. All these years, she had made them believe that she was employed as a Professor in NIT, Kozhikode. Her mother in law Late Annamma Thomas was a shrewd lady. Fearing that she may discover the truth about the first accused's BAs 4421 & 5318/2020 4 unemployment, and found her to be a stumbling block in her taking control of the affairs of the matrimonial home she was the first to be administered dog poison in her food on 22/02/2002. She consumed her dinner laced with poison and passed away. No one had any reason to suspect the death and her body was interred as a natural death. After Annamma's death, her second victim was Tom Thomas, her father-in-law. Having got all his property bequeathed in the name of her late husband Roy Thomas, by concocting a Will she wanted the bequest to come into force, and hence liquidated him by administering cyanide on 26/08/2008. Then she devised a plan to get rid of her own husband Roy Thomas. That is how the properties bequeathed to him would have devolved upon her. On 30/09/2011, he was found lying unconscious on the floor of his toilet. The untimely death of Roy was the turning point. His siblings were not ready to believe the story of his untimely unnatural death. With the help and assistance of their uncle Mathew, they got the body of Roy subjected to autopsy. That is the first time death by cyanide poisoning was BAs 4421 & 5318/2020 5 unravelled. A1 was still successful in contriving a story of a depressed alcoholic man ending his life in desperation. The investigation of the FIR registered as No. 189/2011 at Kodencheri Police Station under S.174 Cr.P.C; was closed as a case of suicide. Doubting that Machadiyil Mathew was nosy and attempted to reopen the investigation pertaining to the suspicious death of his nephew, he needed to be silenced. The death of his nephew and his parents made him inquisitive enough to be instrumental for an investigation by the Police. Fearing that he would be a stumbling block in her pursuit for happiness and financial security, he too was administered cyanide and murdered as stated above. By that time, the first accused had developed an intimacy with her present husband Shaju. But he was a married man with a kid and she could not have got him as her husband without first removing those hurdles. Hence, very cunningly she got intimate with his wife late Sili. Thereafter, their child Alphine too was eliminated in a similar manner on 03/05/2014. Under the guise of helping Sili, she went along with her for an appointment BAs 4421 & 5318/2020 6 with a dentist and laced her medicines with cyanide, resulting in her death on 11/01/2016. Playing the role of a sympathiser, she got intimate with Shaju who had lost daughter and wife. They got married. Rojo Thomas, the brother of deceased Roy was not convinced about the version that his brother would commit suicide. He triggered a further investigation into all the deaths that had occurred by filing a petition before the District Police Chief on 20/06/2019. Persistent follow-up by the siblings of Roy Thomas induced the Police to shed their indolence and to reopen and proceed with the investigation in Crime No.189/2011 of Kodenchery Police Station seriously. All the dead bodies were exhumed and subjected to autopsy. Her involvement in all other crimes came to the fore and she was arrested on 05/10/2019 and her confession statement was recorded which indicated her complicity in all the abovementioned crimes. FIR Nos. 332, 333, 334 and 335 of 2019 were registered at Kodenchery Police Station for the murders of Annamma, Tom Thomas, Manjadiyil Mathew and Alfine and Crime No.980/2019 was BAs 4421 & 5318/2020 7 registered at Thamarassery Police Station for the death of Sili Shaju. 6. A1 was formally arrested in this case on 04.11.2019, while, on the role of A2 being exposed, he too was arrested formally in this Crime on 14.11.2019. They were remanded and continue in judicial custody. The final report has been laid within the statutory period. 7. A1 contends that there is no evidence against her so as to proceed with the trial. It is stated that the chemical examination report does not indicate anything to suggest the involvement of A1. No remnants of cyanide have been recovered from the body subjected to autopsy. Hence, the learned Counsel appearing for A1, Shri B.A.Aloor, strenuously argues that A1 be released on bail. 8. A2 would contend that he is a salesman in a jewellery shop in Kozhikode, and is the sole breadwinner of his family. Moreover, the chemical analysis report does not confirm the presence of Cyanide in the body of the deceased. That would totally belie the case of the prosecution that A2 had supplied poison to A1 to BAs 4421 & 5318/2020 8 carry out the murders. It is submitted that A3 has been granted bail. A2 being similarly placed as A3 may therefore be granted bail. Shri. Sharan Shahier, the learned counsel for A2 submits that there are no materials indicating the complicity of A2. 9. The prosecution case is that A1 had obtained cyanide from A2, who got it from A3, and A1 had administered the poison to eliminate the deceased Mathew and also the others. She wanted to eliminate each of her victims for the reasons stated above in pursuit of happiness in her marital life with her present husband Shaju. He was a school teacher, well settled and financially sound. She found Shaju to be an ideal partner, and for him, she not only killed his unsuspecting wife, but she also did not have any qualms about ending the life of their infant daughter. The motive attributed to A1 in murdering Mathew was because he was prying into her privacy and was relentless in unearthing the suspicious death of his nephew. A1 was a good communicator and even succeeded in winning the confidence of Mathew to serve him liquor. And then, she made use of BAs 4421 & 5318/2020 9 the opportunity to lace the drink with cyanide supplied to her by A2. 10. V.R. Krishna Iyer J. has in _**Niranjan Singh & another v. Prabhakar Rajaram Kharote & others, [1980 KHC 664 : (1980) 2 SCC 559]**_ , held that detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. To be satisfied with a _prima facie_ case is needed, but it is not the same as an exhaustive exploration of the merits in the order itself. Discussion at prolix length, the probabilities of the prosecution's exculpatory case or its weaknesses is unwarranted. 11. In _**Prahlad Singh Bhati v.NCT Delhi, [(2001) 4 SCC**_ _**280],**_ the Hon'ble Supreme Court opined thus:- “(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c)While it is not expected to have the entire BAs 4421 & 5318/2020 10 evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” ## 12. In _**Chaman Lal v. State of U.P., [(2004) 7 SCC 525]**_ , the Apex Court has laid down certain factors, namely, the nature of the accusation, the severity of punishment in case of conviction and the character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and _prima facie_ satisfaction of the Court in support of the charge to be kept in mind while considering an application for bail. 13. Applying the above principles to the case in hand, I find that the applicants are involved in six cases in which A1 has allegedly murdered her close relatives, including her former husband with the aid of A2 and A3. It is also brought in by the learned Public 11 BAs 4421 & 5318/2020 Prosecutor that A1 had attempted to commit suicide inside the jail by slashing her wrists. Timely intervention saved her life. In case she is released on bail, there is every possibility of her influencing or intimidating witnesses, repeating similar offences also cannot be ruled out, and may even go to the extent of causing harm to herself. 14. This court cannot undermine the role of A2 in this crime. Without his help, A1 would not have succeeded in securing the deadly poison she used to eliminate her victims. Without the help of A2 and A3, A1 could never have achieved her objective. It cannot be countenanced that A2 had supplied cyanide without knowing about the purpose it was going to be used by A1. The prosecution version that A2 was too enamoured with A1 to fall into the conspiracy is a version worth believing. The conspiracy hatched by the accused had snuffed out six lives, some of which in its prime. 15. In _**Kalyan Chandra Sarkar v. Pappu Yadav [2005 (2) SCC 42: 2005 KHC 604]**_ the Hon’ble Supreme Court held thus: “18. It is trite law that personal liberty cannot be taken away except in accordance with the BAs 4421 & 5318/2020 12 procedure established by law. Personal liberty is a constitutional guarantee. However, Art.21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Art.21 since the same is authorised by law.” In this context, it would be profitable to reproduce a passage from _**Neeru Yadav vs. State of Uttar Pradesh [2014 (16) SCC 508]**_ , wherein the Court setting aside an order granted observed thus: "The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be BAs 4421 & 5318/2020 13 paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law." The bail applications are, therefore, dismissed. **Sd/-** **ASHOK MENON JUDGE** jg