Suresh Kumar & Prabhu Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943** **BAIL APPL. NO. 2060 OF 2021** ## **PETITIONER/S:** 1 SURESH KUMAR, AGED 43 YEARS S.O KUMARESWARAN PILLAI. KONGALATH KALAM, CHERUPATHELLUR, THENKURUSSI, ALATHUR TALUK,, PIN - 678541 2 PRABHU KUMAR, AGED 43 YEARS S.O KUMAREESWARAN PILLAI, KONGALATH CHERUPATHELLUR, THENKURUSSI,ALATHUR TALUK, PALAKKAD, PIN - 678541 BY ADVS.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) ## **RESPONDENT/S:** 0 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADVS. PUBLIC PROSECUTOR DIRECTOR GENERAL OF PROSECUTION ## **OTHER PRESENT:** SRI.S.SAJJU-SRPP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2021, THE COURT ON 17.05.2021 DELIVERED THE FOLLOWING: BA 2060/2021 -2- ## **O R D E R** ## **Dated, this the 17[th] day of May, 2021** [BA No.2060 of 2021] Application under Section 439 Cr.PC for regular bail. 2. The applicants are accused numbers 1 and 2 respectively, in Crime No.294 of 2020 of Kuzhalmannam Police Station, initially implicated for an offence punishable under Sections 302 read with 34 of the IPC, and after completion of the investigation, stand charge-sheeted for offences punishable under the aforesaid offence, and also Sections 120-B, 506(ii) and 201 IPC. The accusation against the applicants is one of 'honour killing', hitherto unknown to the State of Kerala, which is considered to have attained high standards of social development as a result of the universal literacy. The Apex court has in two of its landmark decisions while considering cases coming under such cases of honour killings held thus: “Honour killing guillotines individual liberty, freedom of choice and one's own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Art.19 and Art.21 of the Constitution. BA 2060/2021 -3- Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy” _Shakthi Vahini v. UOI & Ors 2018 KHC 6227 : 2018(7) SCC 192_ “One may feel "My honour is my life" but that does not mean sustaining one's honour at the cost of another. Freedom, independence, constitutional identity, individual choice and thought of a woman be a wife or sister or daughter or mother cannot be allowed to be curtailed definitely not by application of physical force or threat or mental cruelty in the name of his self - assumed honour. That apart, neither the family members nor the members of the collective has any right to assault the boy chosen by the girl. Her individual choice is her self - respect and creating dent in it is destroying her honour. And to impose so called brotherly or fatherly honour or class honour by eliminating her choice is a crime of extreme brutality, more so, when it is done under a guise. It is a vice, condemnable and deplorable perception of "honour", comparable to medieval obsessive assertions.” _Vikas Yadav v. State of U.P & Ors 2016 KHC 6677: 2016(9)SCC 541_ 3. The prosecution case can be encapsulated thus: Haritha, the daughter of A2 was in love with Aneesh the deceased, since her school days. The girl belonged to the Saivavella Pillai caste, while the boy was from a lower Kadacchikolla caste. He also belonged to a financially backward family, which was no match to the financial status of the accused. The first accused is the maternal uncle of the girl. The romance between the girl with the BA 2060/2021 -4- deceased was too much for the girl's family to digest, and they opposed the alliance, tooth and nail. But ready to weather the storm, like any young couple in love would, they eloped and got married on 27.09.2020. A complaint was lodged by A2 before the Kuzhalmannam Police reporting that his daughter was missing. The deceased and the missing girl were soon traced out and produced before the police. On questioning them, they revealed that they were already married and intended to live as husband and wife. The second accused was not ready to accept the reality and felt deeply hurt and considered it an ignominy to agree to the unacceptable relationship. While they were still within the premises of the police station, he swore to take revenge. He intimidated his daughter and warned her that her newfound relationship would not last more than three months. The accused then constantly intimidated the deceased and his wife with threats of death, whenever they got the opportunity to do so. The accused were persons with criminal antecedents and were capable of doing anything. Realising this, the deceased and his wife even shifted their residence to keep out of the reach of the accused. Between October and December 2020, the deceased was intimidated four times by the accused. Once A1 even slapped his niece and snatched her mobile phone. The accused hatched a conspiracy to kill BA 2060/2021 -5- the deceased for the ignominy he had brought to their family. 4. On 25.12.2020, at about 06:10 PM, near the AJB school Manambulambu, A1 came to the scene of occurrence on his motorcycle bearing Registration No. TN 38 AM 9931, while A2 reached there on his motorcycle bearing Registration No. KL 49 G 2215. They were both armed with weapons like steel rods and knife. A1 who had his wife on the pillion of the motorcycle dropped her there and asked her to walk towards their home. The accused thereafter in furtherance of their common intention, and to achieve the sinister designs of the conspiracy they had hatched, confronted the deceased who was standing on the road beside his motorbike. He was mercilessly attacked with the aforesaid deadly weapons and caused his death. The autopsy report indicates 19 ante mortem injuries on his body and half of those injuries were penetrating stab injuries caused by the knife. The cause of death is attributed to penetrating incised wounds on the thighs involving both the femoral veins and the left femoral artery, which was sufficient in the ordinary course of nature to cause his death. 5. The applicants were arrested on 27.12.2020, and remanded to judicial custody. They moved the Sessions Court for bail in vain. Hence they are BA 2060/2021 -6- before this court seeking indulgence, stating that the investigation is complete, recoveries made, witnesses questioned and the final report filed. The further incarceration of the applicants would therefore not be essential for any purpose. The applicants are willing to abide by any conditions that may be imposed and are not likely to flee from justice. 6. Heard Sri S.Rajeev the learned counsel who strenuously argued for the applicants' liberty from custody. The learned senior Public Prosecutor, Sri S Sajju, opposed the application with all vehemence, on the grounds stated in the written statement of objections filed by the investigating officer. 7. While considering an application for bail, the court has to keep in mind what has been stated in _**Chaman Lal vs. State of U.P. and another, [2004 (7) SCC 525]**_ . The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. 8. In _**Prasanta Kumar Sarkar vs. Ashis Chatterjee and another [2010 (14) SCC 496]**_ , it has been opined that while exercising the power for BA 2060/2021 -7- grant of bail, the court has to keep in mind certain circumstances and factors. It may be useful to reproduce the said passage: "9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed 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." ## In _**Central Bureau of Investigation vs. V. Vijay Sai Reddy [2013 (7) SCC**_ _**452]**_ , the Apex Court had reiterated the principle by observing thus: "While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public / State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence BA 2060/2021 -8- in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." In _**Virupaksha Gauda & Ano v. State of Karnataka [2017 KHC 6239 : AIR**_ _**2017 SC 1685]** ,_ considering a case of honour killing, this Apex court held thus: “21. That apart, as we find from the narration of allegations from the order of the High Court, it is not a case where the trial court could have entertained a bail application by elaborate dissection of facts and appreciation of statements recorded under S.161 Cr.P.C. The gravity of the crime should have been taken note of by the learned trial Judge. The deceased and his wife (the daughter of the accused - appellant No.1) were staying in peace away from the acrimonious community, but due to some kind of "misconceived class honour", the vengeance reigned and awe for law went on a holiday. They thought that their perception mattered and as alleged, they put an end to the life spark of the young man. The choice of the daughter was allowed no space. Her identity was crushed and her thinking was crucified by parental dominance which has roots in an unfathomable sense of community honour. Though the lovers became fugitive, the anger founded on anachronistic values prompted the accused persons to annihilate the life of a young man. In such a situation, the factors that have been highlighted by this Court from time to time were required to be adverted to and the accused persons should not have been granted liberty on the grounds that have been thought appropriate by the learned trial Judge. The perversity of approach by the learned Additional Sessions Judge, who has enlarged the appellants on bail, is totally unacceptable. It is reflective of the sanctuary of errors. In such a situation, we are obligated to say that the High Court has performed its BA 2060/2021 -9- legal duty by lancinating the order passed by the learned trial Judge.” 9. The fact that the investigation is complete, and therefore the detention of the applicants may not be essential as the final report has already been filed is no reason to grant bail. In _**Virupaksha Gouda**_ (supra) the Apex Court held thus:- “13. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge - sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge - sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge - sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge - sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge - sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge.” 10. Placing reliance on the decisions of the Apex Court in _**Chaman Lal**_ **,** _**Prasanta Kumar Sarkar**_ (Supra) and the factors to be borne in mind while BA 2060/2021 -10- considering an application for bail as laid down in those decisions, the applicants cannot be granted bail. They have criminal antecedents, which would undoubtedly persuade them to intimidate the witnesses and tamper with evidence. The Apex Court has in _**Rajesh Ranjan Yadav@ Pappu Yadav v. CBI [2007 KHC 3002 : AIR 2007 SC 451]**_ held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail. The above decision was followed in _**Dinesh M N v. State of Gujarat [2008 KHC 4583 : AIR 2008 SC 2318]**_ . The application is only to be dismissed, and I do so. The trial shall be expedited by the trial court to ensure that the applicants do not continue for long as under-trial prisoners. Sd/- **ASHOK MENON JUDGE** jg