State of Kerala v. Arjun @ Harikuttan, Sree Kuttan @ Adithyan, Abhijith, Sreejith, Shybi @ Nidhin Sirosh, Kuttai @ Athul Mohan, Midhun

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944 BAIL APPL. NO.10665 OF 2022** ## **CRIME NO.1697/2022 OF SOORANAD POLICE STATION, KOLLAM DISTRICT** ## **PETITIONERS/ACCUSED NO.3 TO 7:** |1|ARJUN @ HARIKUTTAN, AGED 23 YEARS,| |---|---| ||S/O.PRAHALADAN, ARJUN BHAVANAM,| ||KIDANAGAYAM NORTH, SOORANAD SOUTH,| ||PATHARAM.P.O., KOLLAM DISTRICT., PIN – 690522.| |2|SREE KUTTAN @ ADITHYAN, AGED 20 YEARS,| ||S/O.PRAHALADAN, ARJUN BHAVANAM,| ||KIDANAGAYAM NORTH, SOORANAD SOUTH,| ||PATHARAM.P.O., KOLLAM DISTRICT., PIN – 690522.| |3|ABHIJITH, AGED 20 YEARS,| ||S/O.SIVAN KUTTY, PALAVILATHEKATHIL,| ||KIDANAGAYAM NORTH, SOORANAD SOUTH,| ||PATHARAM.P.O., KOLLAM DISTRICT., PIN – 690522.| |4|SREEJITH, AGED 20 YEARS, S/O.SANTHOSH,| ||SREEJITH BHAVANAM, KIDANAGAYAM NORTH,| ||SOORANAD SOUTH, PATHARAM.P.O.,| ||KOLLAM DISTRICT., PIN – 690522.| |5|SHYBI @ NIDHIN SIROSH, AGED 20 YEARS,| ||S/O.SIROSH KALATHIVILA PADINJATTATHIL,| ||KIDANAGAYAM NORTH, SOORANAD SOUTH,| ||PATHARAM.P.O.,KOLLAM DISTRICT., PIN – 690522.| |6|KUTTAI @ ATHUL MOHAN, AGED 20 YEARS,| ||S/O.MOHANAN, PALAVILAYIL, KIDANAGAYAM NORTH,| ||SOORANAD SOUTH, PATHARAM.P.O.,| ||KOLLAM DISTRICT., PIN – 690522.| |7|MIDHUN, AGED 18 YEARS, S/O.MAHENDRAN,| ||MANGALASSERIL VEEDU,| ||KULANGARA BHAGAM, CHAVARA.P.O| ||KOLLAM DISTRICT., PIN – 691583.| ## **B.A. No.10665 of 2022** 2 BY ADVS. P.S.BINU ZUBAIR PULIKKOOL ## **RESPONDENT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY ADV.SMT.NEEMA T.V., SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.10665 of 2022** 3 ## **O R D E R** ## **Dated, this the 27[th] January, 2023** This is a petition filed under Section 438 of the Code of Criminal Procedure, by the petitioners, who are accused Nos.3 to 7 in Crime No.1697/2022, where they alleged to have committed offences punishable under Sections 143, 147, 148, 149, 294(b), 308, 323 and 324 of Indian Penal Code, and the petitioners seek pre-arrest bail. 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 3. The prosecution case is that at about 23:00 hrs on 25.12.2022 accused, in this crime formed into unlawful assembly, armed with deadly weapons with knowledge that they are members of the said assembly, assaulted the defacto complainant with intention to do away him. Further the accused assaulted the defacto ## **B.A. No.10665 of 2022** 4 complainant and others, viz., Riyas, Sunil Kumar, Nandhu and Vimal, thereby the above persons sustained very serious injuries. According to the prosecution, the accused herein assaulted the above person with intention to do away them. 4. The learned counsel for the petitioners would submit that no overt acts alleged against the petitioners and they are innocent. Therefore, they are liable to be released on Anticipatory Bail. 5. Whereas, the learned Public Prosecutor would submit that specific overt acts against all accused were stated in the FIS and also the above persons sustained very serious injuries including fracture. Therefore, arrest, custodial interrogation and recovery of weapons are essential for effective and meaningful investigation of this case. Hence, Anticipatory Bail cannot be granted. 5 ## **B.A. No.10665 of 2022** 6. I have perused the prosecution records. Very specific allegations are raised as against all accused confined to that attacked against the above persons by using 'freewheel' and broken glasses. The Case Diary contains the copies of wound certificates of the injured persons. The injuries are as under: ## Sunil Kumar *knuckle point hit over the left chest. - over the forehead – laceration 4 cm x 3 cm x 3 cm. 4 suturas done. - Hit with legs all over the stomach. - Hit him down, pain and tender over the left forearm. ## Riyas - Bike freewheel used for knuckle punch along with broken glass hit over the back of the body. - 5 imprinted pack punch over left scapula, right scapula. - *LS spine with abrasions everywhere and right forearm. - *Lacerated wound using glass piece at top of the head 4x3x2 cm and other near the left head (4 suturas) + (1 sutura) ## Nandhu - Bike freewheel hit over the contusion over the back 5x2x3 cm. - Knife like objects two scratch over the left side of the ear lobes (7x3x5 cm) ## **B.A. No.10665 of 2022** 6 - small laceration of skin over the left middle finger. Vimal - Hit all over the body when this person was standing along with the crowd. - Hit using bottle glass and freewheel over the left elbow (1x2x2 cm) 1 sutura done. - scratch mark 15x1x1 cm over the left forearm - Avulsion over the right index finger. 7. On perusal of the prosecution records as discussed, there are specific allegations against all the accused to the effect that they all assaulted the injured persons and the victims had sustained the above injuries. Therefore, arrest, custodial interrogation, recovery of weapons etc., are inevitable part of investigation. 8. Even otherwise, when prosecution alleges that the accused persons after forming into unlawful assembly, armed with deadly weapons assaulted the defacto complainant/ injured, the complicity of one among the accused shall not be read in isolation since ## **B.A. No.10665 of 2022** 7 the complicity of all accused among the unlawful assembly is on par with the other accused and their complicity is constructive liability. 9. In the decision reported in [2003 SCC (Cri) 32: 2003 Cr LJ 41] _**Gangadhar Behera v. State of Orissa**_ , it is held as under: _Section 149 of the I.P.Code makes every member of unlawful assembly at the time of committing of the offence guilty of the offence. The section creates a vicarious liability for the unlawful acts committed pursuant to the common object by any other member of the assembly. The basis of such constructive liability is mere membership of such assembly with the requisite common object or knowledge. Therefore, once the Court holds that certain accused persons formed an lawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every member that unlawful assembly is to be held guilty of that offence. After such a finding it would be open to the Court to see as to who actually did the offensive act or require the_ **B.A. No.10665 of 2022** 8 _prosecution to prove which of the members did the offensive act or require the prosecution to prove which of the members did the offensive acts -Lalji v. State of U.P AIR 1989 SC 754:1989 Cr LJ 850. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of section 141-Bikau Pandey v. State of Bihar AIR 2004 SC 997; Madan Singh State of Bihar (2004) 4 SCC 622. Even if no overt act is imputed to a particular person, when the charge is under section 149, I.P.Code the presence of the accused as part of unlawful assembly is sufficient for conviction - Yunis v State of Madhya Pradesh 2003 Cr LJ 817 (SC). The object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage - Gangadhar Behara v._ 9 ## **B.A. No.10665 of 2022** _State of Orissa 2003 SCC (Cri) 32:2003 Cr LJ 41. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word “knew” used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of “might have been known”. Positive knowledge is necessary. When an offence is committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two part of section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object._ ## **B.A. No.10665 of 2022** **==> picture [13 x 9] intentionally omitted <==** 10. In the decision reported in [AIR 1994 SC 76:1994 Cr LJ 61] _**Bolineedi Venkataramaiah**_ _**v. State of A.P.**_ , it is held as under: _When a group of members chased the deceased and inflicted several injuries as a result of which the victim dies, all of them can be held guilty of murder even if any one of them did not actually participate in the act._ In the above circumstances, it appears that this is not a fit case for Anticipatory Bail. Therefore, this bail application fails and is accordingly dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww