Vishnu Narayanan, Ananthu @ Appu, Surya Das @ Surya, Saji Dev v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **CRL.A.No.638 OF 2020** **AGAINST THE ORDER IN CRMP 2187/2020 DATED 14-08-2020 OF SESSIONS COURT, ALAPPUZHA** **CRIME NO.1682/2020 OF Cherthala Police Station , Alappuzha** ## **APPELLANTS/PETITIONERS 1 TO 3 & 6/ACCUSED NOS.6TO8 & 12:** **1 VISHNU NARAYANAN AGED 22 YEARS S/O.NARAYANAN, MADHAVAPALLITHARA VEETIL, VAYALAR GRAMA PANCHAYATH, WARD NO.14, CHERTHALA P.O., (ACCUSED NO.6).** **2 ANANTHU @ APPU, AGED 23 YEARS S/O.PURUSHOTHAMAN, ANANTHU BHAVAN, VAYALAR GRAMA PANCHAYATH, WARD NO.14, CHERTHALA P.O., (ACCUSED NO.7).** - **3 SURYA DAS @ SURYA, AGED 24 YEARS S/O.ASHOKAN, ASWATHY MANTHIRAM, VAYALAR GRAMA PANCHAYATH, 14 WARD, CHERTHALA P.O., (ACCUSED NO.8).** - **4 SAJI DEV, AGED 22 YEARS S/O.SAHADEVAN, AASHARITHARA, VAYALAR GRAMA PANCHAYATH, 14 WARD, CHERTHALA P.O., (ACCUSED NO.12).** **BY ADVS. SRI.MANU HARSHAKUMAR SHRI. BINU SAM THOMAS** ## **RESPONDENTS/RESPONDENTS/STATE & VICTIM:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 INSPECTOR OF POLICE, ALAPPUZHA NORTH POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **CRL.A.No.638 OF 2020** **2** **3 SHAIJUMON, S/O.K.K.KUMARAN, ILAAMTHARACHIRA, KALAVAMKODAM P.O., VAYALAR PANCHAYATH, WARD 14, CHERTHALA, ALAPPUZHA-68524.** **R1 & R2 SRI D CHANDRASENAN-SR PP R3 BY ADV. SMT.ATHIRA A.MENON** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-082020, THE COURT ON 08-09-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.638 OF 2020** **3** **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.638 of 2020 --------------------------------------------------Dated this the 8[th] day of September, 2020 ## **J U D G M E N T** This is an appeal filed under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'). 2. The appellants are the accused 6 to 8 and 12 in the case registered as Crime No.1682/2020 of the Cherthala police station. The allegation against the accused in the case is that they have committed the offences punishable under Sections 452, 324, 326 and 307 read with 34 I.P.C and also under Sections 109 and 120B I.P.C and under Sections 3(2)(va) and 3(2)(v) of the Act. 3. The prosecution case, in short, is as follows. The de facto complainant (hereinafter referred to as 'the victim') is a person who belongs to a scheduled caste. Accused 1 to 13 are persons who do not belong to any scheduled caste. The first accused and the victim are neighbours. The victim had caused hindrance to the consumption of narcotic drugs by the first accused and his friends in the nearby **CRL.A.No.638 OF 2020** **4** area. The first accused entertained enmity towards the victim for this reason. A wordy altercation between them had occurred on 25.07.2020. Accused 1 to 5 hatched a conspiracy to murder the victim. On 25.07.2020, at the road near the house of one Chitrabhanu in Ward No.IX of Vayalar Panchayat, the first and the fifth accused met accused No.9 and informed him of the details of the plan to murder the victim. They wanted accused No.9 to discuss the matter with accused 6 to 13 and to make necessary arrangements to execute the plan. Accused 6 to 13 thereafter entered into a conspiracy for intimating the movements of the victim to accused 1 to 5 to facilitate an attack on the victim. Pursuant to the conspiracies thus hatched, on 27.07.2020, at about 14:30 hours, accused 6 to 8 and 11 to 13 observed the movements of the victim and they gave intimation to accused 1 to 5 regarding the movements of the victim and when the victim was proceeding from the place Nagamkulangara to Kollappally, as a pillion driver on the motorcycle driven by his relative Mahesh, and when they reached the road near Royal Rinse Laundry Centre, accused 2 to 5 attacked the victim with steel pipes. When the victim ran into the house of one Job in fear of his life, accused 2 to 5 chased him and trespassed into that house and made attempt to murder the victim by beating him all over the body with steel pipes and they **CRL.A.No.638 OF 2020** **5** caused grievous injuries to him. 4. The case against the accused was registered on the basis of the statement given to the police by the victim at 20:40 hours on 27.07.2020. 5. The appellants were arrested at 23.30 hours on 27.07.2020. They filed application for bail before the Court of Session, Alappuzha. As per the impugned order, the learned Sessions Judge dismissed the application for bail filed by them. Aggrieved by the aforesaid order, accused 6 to 8 and 12 have filed this appeal. 6. Heard learned counsel for the appellants and also the learned Public Prosecutor. Heard also the learned counsel, who was appointed by the Kerala State Legal Services Authority, to represent the victim. 7. The injuries sustained by the victim are mentioned in the impugned order and they are: (1) Lacerated wound, of the size 5 x 1 cm, above left eye brow (2) Lacerated wound, of the size 4 x 1 cm, on the occipital region (3) Comminuted fracture right forearm. (4) Comminuted fracture right lower leg. (5) Comminuted fracture left lower leg. 8. Learned counsel for the appellants contended that the court below had proceeded on a wrong notion that the sixth accused had directly participated in the attack made on the victim. Learned **CRL.A.No.638 OF 2020** **6** counsel for the appellants also contended that, even as per the prosecution case, the appellants had no active role in the attack made on the victim by accused 2 to 5 and therefore, the court below should have granted bail to the appellants. 9. _Per contra_ , learned Public Prosecutor has submitted that, there is sufficient material to show that the sixth accused had also directly participated in the attack made on the victim. Learned Public Prosecutor has further submitted that, the role of the appellants in the attack made on the victim cannot be in any way lesser than the role of the accused who have actively or directly participated in the crime. 10. The law in regard to grant or refusal of bail is very well settled. The general principles regarding granting or refusing bail are enumerated in several judgments of the Apex Court. Generally, the following matters are to be considered in granting or refusing bail to a person accused of a non-bailable offence. (1) The nature of the offence (2) The severity of the punishment which conviction will entail (3) The character, behaviour, means and standing of the accused (4) The circumstances which are peculiar to the accused (5) The status and position of the accused in relation to the victim or the complainant (6) Reasonable possibility of securing the presence of the accused during the trial (7) Reasonable apprehension of the witnesses being **CRL.A.No.638 OF 2020** **7** tampered with (8) The larger interests of the public or the State or the society (9) Likelihood of the accused fleeing from justice (10) Absence or presence of materials in support of the accusation (11) Likelihood of the offence being repeated (12) Frivolity in prosecution. 11. There is merit in the submission made by the learned counsel for the appellants that the remand report dated 29.07.2020 filed by the investigating officer before the Court of Session does not reveal that the sixth accused had directly participated in the attack made on the victim. The remand report only shows that accused No.6 had participated in the conspiracy and he was one of the persons who had observed the movements of the victim and gave intimation to accused I to 5 about such movements. 12. But the fact that, the sixth accused and the other appellants had not directly participated in the attack made on the victim, does not in any way lessen the gravity or seriousness of their role in the commission of the crime because they are persons alleged to have actively participated in the conspiracy to commit the crime and also persons who facilitated the crime. 13. Criminal conspiracy, as defined in Section 120A I.P.C, means agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. Very often, **CRL.A.No.638 OF 2020** **8** conspiracy is hatched in privacy and secrecy. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence, whenever any one of the conspirators does an act or series of acts, he could be held guilty under Section 120B I.P.C. 14. In the instant case, the appellants are persons alleged to have entered into a conspiracy to murder a person and who are persons allegedly facilitated the attack made on the victim in an attempt to murder him. The offences are not only grave and serious but they invite stringent punishment also as provided under law. 15. The essence of a criminal conspiracy is the unlawful combination. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. The prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its **CRL.A.No.638 OF 2020** **9** foundation in an agreement to commit an offence. It is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 16. Section 10 of the Indian Evidence Act states that, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. The basic principle which underlies Section 10 of the Evidence Act is the theory of agency and hence every conspirator is an agent of his associate in carrying out the object of the conspiracy. 17. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons **CRL.A.No.638 OF 2020** **10** who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out and all this is necessarily a matter of inference (See **Ram Narain Popli v. C.B.I : AIR 2003 SC 2748** ). 18. The learned Sessions Judge has observed in the impugned order as follows. _“Thus, it appears that the prosecution case is well made out, prima facie. The available materials would suggest the involvement of accused Nos.1 to 13 in this crime after having hatched conspiracy to do away the defacto complainant. The investigation is on the extreme primitive stage and therefore, the petitioners cannot be released on bail at this stage. Having considered the gravity of the offences and the seriousness of the injuries noted above along with the apprehension expressed by the defacto complainant in the matter of danger to his life, I am not inclined to grant bail to the petitioners.”_ 19. The order of the learned Sessions Judge, refusing bail to the appellants, cannot be found to palpably wrong or erroneous. Learned Sessions Judge has found that there are sufficient materials to show the involvement of the appellants in the commission of the offences. I find no illegality or impropriety in the impugned order warranting interference by this Court. There is no merit in the appeal and it is **CRL.A.No.638 OF 2020** **11** liable to be dismissed. 20. Consequently, the appeal is dismissed. However, it is made clear that the appellants are at liberty to file fresh application for bail before the jurisdictional court in case of any change in the circumstances or the factual situation of the case. If any such application for bail is filed by the appellants, the jurisdictional court shall consider such application on its own merits and pass appropriate orders thereon as expeditiously as possible. ## Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr **CRL.A.No.638 OF 2020** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 FIR AND FIS IN CRIME NO.1682/2020 OF CHERTHALA POLICE STATION. ANNEXURE 2 REMAND REPORT OF ACCUSED NOS.6 TO 13 DATED 29.07.2020.** **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.S TO JUDGE** **JSR**