Sunil Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ``` BAIL APPL. NO. 3918 OF 2024 ``` ``` CRIME NO.1398/2023 OF KATTAKADA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.1995 OF 2024 OF HIGH COURT OF KERALA PETITIONER/1ST ACCUSED: ``` ``` SUNIL KUMAR, AGED 33 YEARS S/O. SURENDRAN,MISPA HOUSE,PARAMUKAL, KURAKONAM, KUZHAIKKADU MURI, VEERANAKAVU VILLAGE,THIRUVANANTHAPURAM DISTRICT, PIN - 695543 ``` ``` BY ADVS. GEORGE MATHEW V.S.VINEETH KUMAR SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, KATTAKADA POLICE STATION, THIRUVANANTHAPURAM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`3 HABEL J.V ,`** ``` S/O JALAJAN .N CHRIST NILAYAM CHANAVILA ,PERUMKULAM POOVACHAL, THIRUVANANTHAPURAM IS IMPLEADED AS R3 AS PER ORDER DATED 25-6-24 IN CRL MA 2/24 ``` ``` BY ADVS. PUBLIC PROSECUTOR M.R.SARIN ``` ``` 2 ``` ## **B.A. No.3918 of 2024** ``` ADDL.DIRECTOR GENERAL OF PROSECUTION SRI GRASHIOUS KURIAKOSE STATE PUBLIC PROSECUTOR SRI C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.3918 of 2024** ``` 3 ``` ## **Dated this the 24[th ] day of July, 2024 O R D E R** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in crime No.1398/2023 of the Kattakkada Police Station, Thiruvananthapuram, which is registered against the accused (two in number), for allegedly committing the offences punishable under Sections 341, 294(b), 323, 324, 326, 307, 302 and 506(i) read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 5.9.2023. 2. The gravamen of the prosecution case is that; on 5.9.2023, at around 16.00 hours, the accused, in furtherance of their common intention and out of their previous animosity with Jalajan (deceased) had **B.A. No.3918 of 2024** ``` 4 ``` wrongfully restrained the deceased, and the first accused uttered obscene words at him and criminally intimidated him. Then, the second accused caught hold of the deceased and both the accused fisted and beat him. Subsequently, the accused pushed down the deceased and the first accused armed with a concrete piece, weighing 2.280 kg, forcefully hit on the face of the deceased on multiple occasions and caused fatal injuries to him. The second accused also kicked and stamped on the chest of the deceased. Thus, the deceased lost his life. Accordingly, the accused have committed the above offences. 3. Heard; Sri.George Mathew, the learned counsel appearing for the petitioner, Sri. C.K Suresh, the learned Special Public Prosecutor appearing for the respondents 1 and 2 and Sri.M.R Sarin, the learned counsel appearing for the intervenor/de facto complainant. ``` 5 ``` ## **B.A. No.3918 of 2024** 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. Even though this Court had dismissed the petitioner’s earlier application by AnnexureA3 order, the petitioner is certain that the trial in the case will not commence immediately. Therefore, the petitioner would have to undergo indefinite incarceration, which is an infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. Therefore, the application may be allowed. 5. The learned Special Public Prosecutor opposed the application. He submitted that this Court had considering the seriousness and gravity of the accusations levelled against the petitioner, dismissed his earlier application by a detailed (Annexure A3) order. On the contrary, this Court considering the lesser role ``` 6 ``` ## **B.A. No.3918 of 2024** played by the second accused, enlarged him on bail. Since there is long-standing family feud between the two families of the petitioner and the deceased, there is every likelihood of the petitioner committing a similar offence. He is also certain to intimidate the witnesses and tamper with evidence. Hence, the application may be dismissed. 6. The learned counsel appearing for the intervenor also opposed the application. He submitted that if the petitioner is released on bail, there is every likelihood of him intimidating the family members of the deceased and also tampering with evidence. Hence, the application may be dismissed. 7. On an analysis of the materials placed on record, especially the final report laid by the Police, it can be seen that the specific overt act of having committed the offence under Sec.302 of the IPC is attributed against the first accused, who hit on the head of the deceased with a ``` 7 ``` ## **B.A. No.3918 of 2024** concrete block, on multiple occasions, and caused grievous injuries to him. The postmortem certificate dated 6.9.2023 submitted by the Medical College Hospital, Thiruvananthapuram, establishes the antemortem injury suffered by the deceased. The fatal injury is injury No.(ii), which shows that the skull of the deceased got fragmented into multiple pieces. The said injury prima facie substantiates the prosecution case as against the first accused and the heinous and coldblooded nature of the crime. 8. By Annexure A3 order, this Court taking into consideration the long-standing family feud between the petitioner and the deceased and also the apprehension projected by the prosecution that the petitioner may cause law and order situation and tamper with evidence, this Court relying on the decisions of the Honourable Supreme Court in **Prasanta Kumar Sarkar v. Ashis** **B.A. No.3918 of 2024** ``` 8 ``` **Chatterjee and Anr.** [(2010) 14 SCC 496], **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav** **and another** [(2004) 7 SCC 528] and **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], found that the petitioner is not entitled to be released on bail since it would have a deleterious impact on the society. It is well settled in **Kalyan Chandra Sarkar’s case (supra)** that merely because an accused has undergone a certain period of detention, the same is not a ground to release an accused on bail. 9. Taking into consideration the heinous nature of allegation attributed against the petitioner, the potential severity of punishment that is likely to be imposed on him and further the reasonable apprehension projected by the prosecution, I am not satisfied that there is any change of circumstances subsequent to the passing of Annexure A3 order. The application is meritless and is **B.A. No.3918 of 2024** ``` 9 ``` only to be dismissed. Resultantly, the application is dismissed. **SD/-** **C.S.DIAS, JUDGE** rmm/24/7/2024