Vijith @ Vichu v. State of Kerala

B.A No.305 of 2024 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 BAIL APPL. NO. 305 OF 2024 ``` ``` CRIME NO.737/2023 OF Kayamkulam Police Station, Alappuzha AGAINST THE ORDER IN SC 1260/2023 OF ADDITIONAL DISTRICT ``` ## **`COURT-I,MAVELIKKARA`** ## **`PETITIONER/2ND ACCUSED:`** ``` VIJITH @ VICHU, AGED 29 YEARS S/O.SURESH, SUJITH BHAVANAM, KAPPIL KIZHAKKE MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT, PIN - 690533 ``` ``` BY ADVS. K.SIJU ANJANA KANNATH ``` ## **`RESPONDENTS/STATE:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER, KAYAMKULAM POLICE STATION, ALAPPUZHA DISTRICT, PIN - 690502 ``` ``` BY sr pp smt neema t v ``` B.A No.305 of 2024 **==> picture [9 x 10] intentionally omitted <==** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.305 of 2024 3 Dated this the 6[th] day of February, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused in crime No.737/2023 of the Kayamkulam Police Station, Alappuzha, registered against the accused ( three in number), for allegedly committing the offences punishable under Secs.302, 323, 307, 324, 109 and 506(ii) read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 19.07.2023. 2. The gist of the prosecution case is that: the accused in furtherance of their common intention and out of their previous animosity with the defacto complainant and friends, on 18.07.2023 around 06.00 p.m, the accused 1 and 2 went on a motorcycle bearing registration No.KL03-U-6589 and followed the scooter bearing registration No.KL-29-S-3277 ridden by Ananthu, Ambadi, and Adarsh, B.A No.305 of 2024 4 and the motorcycle ridden by the de facto complainant bearing registration No.KL-16-F-6396. When they reached Kuttippuram Junction, the accused questioned Ananthu and beat him on both shoulders. Then, the second accused took a knife in his hand and caused injury to Ananthu's neck. When the de facto complainant and others tried to obstruct the attack, the first accused stabbed the neck of the Ambadi (deceased), and he succumbed to the injuries. The second accused also threatened a person named Adarsh by waving his knife. Thus, the accused have committed the above offences. 3. Heard; Sri.K. Shiju, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The investigation in the case is complete, and the final report has been laid. A reading of the FIR as well as B.A No.305 of 2024 5 the final report would clearly reveal that the petitioner had only allegedly caused an injury to Ananthu, who had sustained only an incised wound, which was not as deep as evident from Annexure A5 Accident Register-CumWound-Certificate. It was the first accused who caused the death of Ambadi. The petitioner has no complicity in the death of the deceased. At any rate, Section 302 of the IPC as not be attracted against the petitioner. The petitioner has been in judicial custody since 19.07.2023, which is more than 203 days. The recovery has been effected. The petitioner’s continued detention is unnecessary. The petitioner is willing to abide by any stringent condition imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that it was the petitioner and the accused 1 and 3, in furtherance of their common intention, who caused the death of deceased and also inflicted an injury on Ananthu. Nonetheless, she conceded B.A No.305 of 2024 6 to the fact that, as per the FIR and the final report, the specific overt act alleged against the petitioner is that he caused an incised wound on the neck of Ananthu. She also admitted that the investigation in the case is complete, the recovery has been effected and the final report has been laid, and now the case is pending consideration before the Court of the Session as S.C.No.1260/2023. 6. On a careful analysis of the materials placed on record, particularly Annexure A1 FIR, the final report, and the observations made by the Court of Session in Annexure A3 and A4 orders, it is discernible that the overt act alleged against the petitioner is that he caused an injury to the neck of Ananthu. A reading of Annexure A5 Accident Register-Cum-Wound Certificate would show that Ananthu had suffered an incised wound on the side of his neck of 2 cm, which was certified to be not so deep. True, Section 34 of the IPC has been incorporated. But the overt act with regard to the cause of death of Ambadi is due to the stab injury inflicted by the first accused. B.A No.305 of 2024 7 7. In **Sanjay Chandra Vs. C.B.I** ((2012) 1 SCC 40), it is well settled that a person is believed to be innocent until he is found guilty. It is contrary to the concept of personal liberty, if any person is punished before conviction, in respect of any matter or in any circumstances, upon the belief that he will tamper with the witnesses if left at liberty. The imprisonment before conviction has a substantial punitive effect, and it would be improper for any Court to refuse bail as a mark of disapproval of the former conduct, whether the accused has been convicted for it or not. 8. In **Dataram Singh Vs. State of Uttar Pradesh ( (2018) 3 SCC 22)** the Honourable Supreme Court has observed that the grant of bail is the rule and putting a person in jail is an exception. Even though, the grant of bail is entirely the discretion of the Court, the same has to be evaluated on the facts and circumstances of each case and the judicial discretion is to be properly exercised. B.A No.305 of 2024 8 9. In **State of Kerala Vs.Raneef ((2011) 1 SCC 78)** the Honourable Supreme Court has illustrated that an under-trial person is detained in jail for an indefinite period without any sufficient cause, which is tantamount to the infringement of his constitutional rights under Article 21 of the Constitution of India. On an appreciation of the facts, the materials placed on record, the rival submissions made across the bar, particularly taking note of the fact that the alleged offence under Section 302 of the IPC was committed by the first accused, that the overt act alleged against the petitioner is of an injury caused on the neck of Ananthu, that the investigation in the case is practically complete, that the recovery has been effected, that the final report has been laid before the Court of Session, and that the petitioner has been in judicial custody for the last 203 days, I am of the definite view that the petitioner is entitled to be released on bail but subject to stringent conditions. B.A No.305 of 2024 9 In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall also appear before the Investigating Officer as and when directed; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the B.A No.305 of 2024 10 effect before the court below on the date of execution of the bond; (v) The petitioner shall not leave the territorial jurisdiction of the Court of the Session, Alappuzha, without the permission of the Court below. (vi) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the B.A No.305 of 2024 **==> picture [16 x 10] intentionally omitted <==** information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** Sd/mtk/06.02.24 **C.S.DIAS, JUDGE** B.A No.305 of 2024 12 ## **`APPENDIX OF BAIL APPL. 305/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1THE COPY OF FIR IN CRIME NO.737/2023 OF KAYAMKULAM POLICE STATION DATED 18.7.2023 ``` ``` Annexure A2THE COPY OF ORDER IN CRL.M.P NO.4906/2023 DATED 30.10.2023 ON FILE OF SESSIONS COURT, ALAPPUZHA ``` ``` Annexure A3THE COPY OF ORDER IN CRL.M.P NO.5991/2023 DATED 4.12.2023 ON THE FILE OF SESSIONS COURT, ALAPPUZHA ``` ``` Annexure A4THE COPY OF ORDER DATED 22.12.2023 IN CRL.M.P NO.1548/2023 IN SC NO.1260/2023 ON FILE OF ADDL. SESSIONS COURT-I, MAVELIKKARA ``` ``` Annexure A5THE COPY OF WOUND CERTIFICATE OF ANANTHU DATED 18.7.2023 ISSUED BY THE GOVT. TALUK HEADQUARTERS HOSPITAL, KAYAMKULAM ```