Prabeesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944** **BAIL APPL. NO. 5983 OF 2022** **AGAINST SC 879/2021 OF ADDITIONAL SESSIONS COURT - III,** **ALAPPUZHA** ## **PETITIONER/ACCUSED NO.1:** **PRABEESH AGED 36 YEARS, S/O SADANANDAN POOKAN VEEDU, MUTHUKADU MURI, NILAMBUR MALAPPURAM, PIN - 679330** **BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU SHIFNA MUHAMMED SHUKKUR GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN - 682031** ## **SRI.P.NARAYANAN, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.08.2022, THE COURT ON 31.08.2022 DELIVERED THE FOLLOWING:** **-:2:-** B.A. No.5983/22 ## **BECHU KURIAN THOMAS, J. -------------------------------B.A. No.5983 of 2022** **---------------------------------** Dated this the 31[st] day of August, 2022 ## **ORDER** Petitioner is the first accused in Crime No.282 of 2021, pending trial before the Sessions Court, Alappuzha as S.C. No.879 of 2021. Petitioner seeks regular bail under section 439 of the Code of Criminal Procedure, 1973. 2. The prosecution relates to the alleged murder of one Anitha. Pursuant to a conspiracy to commit murder, on 09.07.2021, the petitioner, along with the second accused, throttled and smothered the deceased Anitha and thereafter dumped her into a river called Pookaithayar and caused the death of Anitha and her foetus, thus committing the offences punishable under sections 120B, 316, 302, 201 read with section 34 of the Indian Penal Code, 1860. 3. Sri. John Sebastian Ralph, learned counsel for the petitioner, contended that even if the entire allegations of the prosecution are admitted, still, only an offence either under section 325 or that under section 307 alone, would be made out. B.A. No.5983/22 ## **-:3:-** It was pointed out by the learned counsel that, as per the prosecution case, the accused is alleged to have dumped the body of the deceased into the water with the belief that she is already dead. Relying upon the post-mortem report and the definition of the term culpable homicide in section 299 IPC, it was argued that for the purpose of indicting the petitioner for the offence of murder, it was essential that death must have been caused by an act done with the intention of causing death to a live human being. 4. The learned counsel for the petitioner argued with vehemence that since the prosecution case itself was that the accused had dumped the deceased into the water under the belief that the deceased had already succumbed to the injuries, the offence of murder cannot be made out at all, since she had not died at that point in time. It was asserted that the dumping of the body into the water was not done with the intention of causing death to a live human being but was only for the purpose of disposing of a dead body, and hence the offence of murder will not lie against the petitioner. Relying upon the decisions in **The Emperor v. Dalu Sardar** (MANU/WB/0491/1914) and that of the Full Bench of the Madras B.A. No.5983/22 ## **-:4:-** High Court in **In Re: Palani Goundan** (MANU/GN/0265/1919), it was argued that in the nature of the prosecution case the bodily injury inflicted upon the deceased allegedly by the petitioner having not resulted in murder and while dumping the body into the water, the accused did not have the intention of causing death of that person, the court can, ultimately, punish the petitioner only for the offence of attempt to murder or that of section 325 IPC, even if the prosecution case is proved in its entirety. Hence petitioner ought to be released on bail, contended Adv. John S.Ralph. 5. Sri.P. Narayanan, the learned Public Prosecutor, on the other hand, contended that the prosecution case cannot be dissected into different transactions and that the smothering, throttling and subsequent immersing in water are all parts of the same transaction and hence the petitioner had evidently committed the offence of murder. He referred to the decision in **King Emperor v. Nehal Mahto** [ILR 1939 485(Pat): 1939 SCC Online Pat 360] and argued that the decisions cited by the learned Counsel for the petitioner are distinguishable since the injuries inflicted initially by the accused were sufficient in the ordinary course of nature to cause death apart from the accused B.A. No.5983/22 ## **-:5:-** entertaining the intention to cause death, and later death ensued. The learned Prosecutor also argued that at the stage of considering the grant of bail, this Court cannot indulge in a detailed analysis and without adducing evidence in the case, it would be a travesty of justice if the court considers the nature of evidence required or the guilt or innocence of the accused. According to the Prosecutor, the incident reveals a cold-blooded murder and sufficient evidence has been collected for the purpose of entering a punishment of absolute guilt of the accused and therefore releasing him at this juncture would prejudice the prosecution. The prosecutor also contended that the petitioner does not have any fixed abode and is a wayfarer and hence if he is released on bail, there is every chance that he may abscond. It was also contended that the gruesome nature of the pre-planned murder committed by the petitioner which even caused the death of the foetus must be borne in mind while considering the grant of bail. 6. I have considered the contentions raised by the learned counsel for the petitioner as well as the learned Public Prosecutor. 7. The post-mortem report reveals that the death of the B.A. No.5983/22 ## **-:6:-** deceased Anitha occurred due to the combined effects of smothering, throttling and drowning. CW9, the mother of the second accused, is a witness who heard sounds from the room where the accused along with the deceased were staying for the night, and she is also alleged to have found the naked body of the deceased on the floor, in the room of the accused. The various contentions now raised by the learned counsel for the petitioner, especially relating to the absence of intention to cause death while dumping the deceased into the water, is a matter which can be considered only at the time of trial. 8. The definition of the term culpable homicide in section 299 IPC has three facets to it. They are (i) causing death by doing an act with the intention of causing death, (ii) doing an act with the intention of causing such bodily injury as is likely to cause death, and (iii) doing of an act with knowledge that he is likely by such act to cause death. Any of these three would constitute the offence of culpable homicide. Obviously, throttling and smothering is an act which can likely cause death and is also a bodily injury likely to cause death. For the purpose of disposing of this application, it is sufficient to observe that since an ‘act’ includes a series of acts as defined in section 33 of the IPC, the B.A. No.5983/22 ## **-:7:-** initial intention to commit murder and the subsequent acts committed by the accused could be regarded as intimately connected with each other and cannot be separated. Similarly, dumping of a living person into the water is also an act that can likely to cause death. Apart from the above, the question whether these acts were done with the intention to cause the death of a living body or not is a matter which cannot be considered at this stage. For the purpose of considering the bail application, it is sufficient to indicate that the allegations and the materials collected do reveal and indicate, atleast prima facie, the commission of a pre-planned, cold-blooded murder. Of course, these are all matters of trial, and this Court ought not to prejudge this issue. 9. I have perused the case diary also. The accused does not have a fixed residence and is claimed to be a wayfarer. One of the key witnesses to the incident is the mother of the second accused. The possibility of the petitioner intimidating the other witnesses also cannot be brushed aside. Considering the gravity of the offences, the manner and the nature in which the offence is alleged to have been committed, and the possibility of the accused absconding and influencing witnesses, I am of the view B.A. No.5983/22 ## **-:8:-** that this is not a fit case where the petitioner could be released on bail. Further, I am of the opinion that this is a fit case where the custodial trial is essential. 10. It is clarified that the observations made in this Order are meant only for the purpose of this application and shall not be referred to or borne in mind at the time of trial. Accordingly, I dismiss this bail application. **BECHU KURIAN THOMAS JUDGE** vps