Thomas P.J. @ Johny 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 JANUARY 2024 / 4TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 265 OF 2024 ``` ``` CRIME NO.1337/2023 OF PEROORKADA POLICE STATION, ``` ## `THIRUVANANTHAPURAM` ``` AGAINST THE ORDER in CRMC 3252/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THIRUVANANTHAPURAM / I ADDITIONAL MACT ``` ## `PETITIONER/ACCUSED:` ``` THOMAS P.J. @ JOHNY , S/O. JAMES, AGED 54 YEARS ROADARIKATHU VEEDU, T.C. NO. 4/8, NEAR THANUPILLA JUNCTION, PATTOM, MARAPPALAM, MUTTADA, KAWADIYAR VILLAGE, THIRUVANANTHAPURAM, PIN - 695004 BY ADVS. M.R.RAJESH SANDHYA E.S. ``` ## `RESPONDENT/S:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BYSR PP SRI C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B. A No.265 of 2024 2 ## **Dated this the 24[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the sole accused in Crime No.1337/2023 of the Peroorkada Police Station, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Sections 326 and 302 of the Indian Penal Code. The petitioner was arrested on 20.09.2023. 2. The gist of the prosecution case is that: around 9.15 p.m, on 17.09.2023, when the informant questioned the accused regarding his relationship with informant’s mother-in-law, the accused attacked the informant with a chopper and cut him on the right side of his chest, causing deep and grievous injuries to the informant. While the informant was undergoing treatment in the Medical College Hospital, Thiruvananthapuram, on B. A No.265 of 2024 3 25.09.2023 at around 10.25 p.m, the informant ( Jishnu V.S) lost his life. Thus, the accused has committed the above offences. 3. Heard Sri. M.R. Rajesh, learned counsel appearing for the petitioner and Sri. C.K. Suresh, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner vehemently argued that the petitioner has been falsely implicated in the crime. A reading of the postmortem certificate would establish that the deceased lost his life due to the pulmonary thromboembolism, which can never be caused due to the alleged attack made by the petitioner. In fact, it was the deceased and the father-in-law who went to the place where the petitioner was sleeping and then caused the incident. Going by the allegations in the FIR and the final report, it can be deciphered that the petitioner exercised the right to private defence. The investigation has not been B. A No.265 of 2024 4 conducted in a proper manner. Actually, CW 14 —the person with whom the petitioner was allegedly having a relationship— has stated that there are CCTV footage on the premises, which throws light to the actual incident. The investigation has been completed, and the final report has been filed. The petitioner has been in incarceration since 20.09.2023. The petitioner's further detention is unnecessary. The petitioner is willing to abide by any condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor strenuously opposed the application. He contended that it was the deceased who gave the information regarding the attack made by the petitioner. The deceased was treated as an inpatient in the Medical College Hospital, Thiruvananthapuram, from 17.09.2023 to 25.09.2023. The postmortem certificate clearly reveals the injuries sustained by the deceased. It is certified in the B. A No.265 of 2024 5 postmortem report that the death was caused due to pulmonary thromboembolism as a complication of injury sustained to the abdomen of the deceased. Therefore, the contention of the learned counsel for the petitioner that the deceased lost his life due to natural causes is naive. He also submitted that it was the deceased who gave the information to the police that the petitioner attacked him. Moreover, the petitioner has criminal antecedents because he is involved in two other cases of the same police station, i.e; Crime Nos.958/2020 and 343/2023. If the petitioner is let off on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Also, it will send a wrong message to society. Hence, the bail application may be dismissed. 6. The prosecution allegation is that, on 17.09.2023, the petitioner inflicted a deep incised wound on the chest of the deceased. The deceased was under B. A No.265 of 2024 6 treatment in Medical College Hospital, Thiruvananthapuram, from 17.09.2023 to 25.09.2023, and he lost his life on 25.09.2023. It is undisputed that it was the deceased who informed the police that he was attacked by the petitioner. The postmortem certificate reveals that the death was caused as a result of the complications of injuries that the deceased had sustained. 7. The materials placed on record, also reveal that the petitioner had moved three applications for bail before the Court of Sessions, which were dismissed by Annexures F, G and H orders. 8. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], in paragraph 9, the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the B. A No.265 of 2024 7 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.” ## 9. Again, the Honourable Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary B. A No.265 of 2024 8 for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 10. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, seriousness and gravity of the offences alleged against the petitioner, that it was the deceased who gave the information to the police that he was attacked by the petitioner, that the postmortem certificate reveals that the death was caused due to the complication of the injury the deceased had sustained, that the apprehension projected by the prosecution that there is every likelihood of the petitioner intimidating the witnesses and tampering with the evidence, and that B. A No.265 of 2024 9 if the petitioner is released on bail, it would have a deleterious impact on society, I am at this stage not satisfied that the petitioner is not entitled to be released on bail. The application is meritless and and it is only to be dismissed. Resultantly, the application is dismissed. Sd/- **C.S.DIAS, JUDGE** mtk/24.01.24 B. A No.265 of 2024 10 ## `APPENDIX OF BAIL APPL. 265/2024` ``` PETITIONER ANNEXURES ``` ``` Annexure AA TRUE COPY OF THE NEWSPAPER REPORT Annexure BA TRUE COPY OF THE COMPLAINT DATED 31.10.2023 FILED BY THE WIFE OF THE PETITIONER TO THE A.C.P, CANTONMENT SUB DIVISION, THIRUVANANTHAPURAM Annexure CA TRUE COPY OF THE CASE SUMMARY OF THE PETITIONER WITH REG: NO. 8763 ``` - `Annexure D A TRUE COPY OF THE PRESCRIPTION SHEET DATED 27.07.2023 ISSUED FROM THE MEDITREENA HOSPITALS, PATTOM, THIRUVANANTHAPURAM` - `Annexure E A TRUE COPY OF THE ORDER DATED 28.10.2023 ON CRL.M.P NO. 1424/2023 PASSED BY THE JFMC-IV, THIRUVANANTHAPURAM` - `Annexure F A TRUE COPY OF THE ORDER DATED 09.11.2023 ON CRL.M.C NO. 2927/2023 PASSED BY THE SESSIONS JUDGE, THIRUVANANTHAPURAM` ``` Annexure GA TRUE COPY OF THE ORDER DATED 29.11.2023 ON CRL.M.C NO. 3102/2023 PASSED BY THE SESSIONS JUDGE, THIRUVANANTHAPURAM Annexure HA TRUE COPY OF THE ORDER DATED 16.12.2023 ON CRL.M.C NO. 3252/2023 PASSED BY THE SESSIONS JUDGE, THIRUVANANTHAPURAM ```