Vinod v. State of Kerala

## **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. 778 OF 2024** **CRIME NO.1843/2023 OF Perinthalmanna Police Station,** **Malappuram** **IN CMP 10/2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PERINTHALMANNA** **IN CRMC 71/2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER/ACCUSED:** **VINOD AGED 27 YEARS S/O UNNIKRISHNAN, KARAYIL HOUSE, PONIYAKURISHI, PERINTHALMANNA, PIN - 679322** **BY ADVS. THAREEQ ANVER K. K.SALMA JENNATH ARUN CHAND RASSAL JANARDHANAN A. GOVIND G. NAIR** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **ADGP SRI GRASHIOUS KURIAKOSE,SR.PP.SRI.C.K.SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 778 OF 2024** **2** ## **O R D E R** The petitioner, who is the sole accused in Crime No.1843/2023 of the Perinthalmanna Police Station, registered against him for allegedly committing the offence punishable under Sections 302 of the Indian Penal Code, 1860, has filed the above application under Section 439 of the Code of Criminal Procedure, 1973 (‘Code’, for short). The petitioner was arrested on 24.12.2023. 2. The prosecution case, shorn of exhaustive details, is that, on 17.12.2023 around 8.00 pm, the accused due to his animosity towards his father (deceased), who was in an inebriated state, caught hold of the legs of the deceased and pulled him to the ground with an intention to kill him. Due to the force in the fall, the deceased hit his head on the tiled floor and, thereafter, the accused **BAIL APPL. NO. 778 OF 2024** **3** kicked the face of the deceased and he suffered serious head injuries and succumbed to the same. Thus, the accused has committed the above offences. 3. Heard; Sri. Thareeq Anver, the learned counsel appearing for the petitioner and Sri. C. K. Suresh, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. He has no criminal antecedents. Even going by the allegations in the FIR, the alleged incident was not premeditated. It is only due to an accidental fall of the deceased that he lost his life. The petitioner is a young man aged 27 years. He is also the breadwinner of his family. The petitioner has been in judicial custody for last more than 30 days. The **BAIL APPL. NO. 778 OF 2024** **4** investigation of the case is practically completed. There was no recovery to be effected. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He contended that the death was caused due to overt act of the petitioner. The petitioner pulled the legs of his father and the deceased fell on the ground. Thereafter the accused hit on his head. The deceased suffered serious head injuries and lost his life. He made available the postmortem certificate dated 19.12.2023 to demonstrate the five antimortem injuries suffered by the deceased. He contended that the investigation is only at its nascent stage. The witnesses in the case are blood relatives. If the petitioner is let off on bail, there is every likelihood on him influencing the witnesses and tampering the evidence. Hence, the application may be dismissed. **BAIL APPL. NO. 778 OF 2024** **5** 6. The prosecution allegation is that the accused out of his grievous animosity with his father, pulled both the legs of his father and put him on the ground, and then kicked him on his head. Accordingly, the victim and suffered serious head injuries and he succumbed to the same. 7. The pivotal contentions of the learned counsel for the petitioner is that the alleged incident was not premeditated and the petitioner had no intention to cause death of his father. It was only an accidental fall. Therefore, the petitioner may be enlarged on bail and he is willing to co-operate with the investigation. 8. It cannot be gainsaid that the exceptional power to grant bail under Section 439 of the Code is wide-ranging and discretionary, and the power is to be exercised judiciously. **BAIL APPL. NO. 778 OF 2024** **6** ## 9. In **Prasanta Kumar Sarkar v. Ashis** ## **Chatterjee and Another** [(2010) 14 SCC 496], 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 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 danger, of course, of justice being thwarted by grant of bail.” 10. Subsequently, in _**Kalyan Chandra**_ _**Sarkar**_ ’s case, the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the **BAIL APPL. NO. 778 OF 2024** **7** merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the witnesses by the accused. 11. In _**Mahipal v. Rajesh Kumar**_ **(2020) 2 SCC 118],** the Hon'ble Supreme Court has held thus: **BAIL APPL. NO. 778 OF 2024** **8** “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 12. It is also worth recollecting the observations made by the Hon'ble Supreme Court in _**Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr**_ [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether **BAIL APPL. NO. 778 OF 2024** **9** the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 13. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on the petitioner, that the reasonable apprehension projected by the prosecution that the petitioner may influence the witnesses, who is none other than his own blood relative, that the petitioner is also likely to tamper with the evidence and further that the investigation is only at the nascent stage, **BAIL APPL. NO. 778 OF 2024** **10** I am convinced and satisfied that the petitioner cannot be released on bail, as it would have a deleterious impact on the society. Hence, I hold that the application is only liable to be dismissed. Resultantly, the application is dismissed. **SD/-C.S.DIAS(J) JUDGE** lsn