Vishnu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 BAIL APPL. NO. 3389 OF 2024** **AGAINST THE ORDER/JUDGMENT IN SC NO.258 OF 2024 OF THE** **SESSIONS COURT, MANJERI CRIME NO.510/2023 OF KARUVARAKUNDU POLICE STATION,** ## **MALAPPURAM** ## **PETITIONER/ACCUSED NO.1:** **VISHNU, AGED 26 YEARS S/O MUTHU, MADHAVATH VEEDU, TUVVUR.PO, MALAPPURAM, PIN – 679325.** **BY ADVS. P.S.ANISHAD LIMNA BHASKARAN K.K.SHEEBA ARCHANA MITHRAN O.K. GAYATHRI MAHESH AISWARYA K.S.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031.** **BY SRI C K SURESH, SR. PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR FINAL HEARING ON 05.07.2024, THE COURT ON 17.07.2024 DELIVERED THE FOLLOWING:** 2 Bail Appl.No.3389 of 2024 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Bail Appl.No.3389 of 2024 ----------------------------------------------------------Dated this the 17[th] day of July, 2024** ## **O R D E R** This is an application for bail filed under Section 439 of the Code of Criminal Procedure, 1973 (Code). 2. The petitioner is the 1[st] accused in Crime No.510 of 2023 of Karuvarakundu Police Station, Malappuram. He is accused of offences punishable under Section 120B, 394, 342, 297, 201, 364 and 302 read with Section 34 of the Indian Penal Code, 1860 (IPC). The prosecution case is as follows: The petitioner had financial obligations. He wanted to raise funds, for which he conspired with accused Nos.2 to 5 to cause death of Smt.Sujitha and rob her gold ornaments. The petitioner in order to accomplish the said plot, brought her to his house on 11.08.2023. At about 11.30 a.m. the petitioner with the help of accused Nos.2 and 3 caused her death at the front room of that house by strangulating her using a plastic 3 Bail Appl.No.3389 of 2024 rope. They had removed the gold ornaments worn by her with the help of the 4[th] accused and hanged her in a hook on the ceiling of that room with a view to disappear evidence. Accused Nos.2 and 4 attempted to have sexual acts on the corpse after bringing it down. Later, accused Nos.1 to 4 buried the dead body in a pit they dug in the compound of that house. 3. Investigation in the matter is complete. Following filing of the final report the case was filed before the Judicial Magistrate of the First Class-I, Manjeri as C.P.No.89 of 2023. The petitioner has been in custody since 21.08.2023. He has filed Crl.M.P.No.3991 of 2023 seeking bail. The learned Magistrate dismissed that petition. 4. The learned counsel for the petitioner would submit that there are a lot of inconsistencies in the evidence produced by the prosecution and the detention of the petitioner pending trial is quite unjust and illegal. It is submitted that the dead body of the deceased was recovered after the arrest of the petitioner, but it was not a recovery 4 Bail Appl.No.3389 of 2024 under Section 27 of the Indian Evidence Act, 1872. Without any tangible evidence, he was implicated in the crime. The petitioner was arrested on 21.08.2023, whereas the dead body was exhumed on 22.08.2023. The circumstances narrated in the prosecution records that lead to the recovery of the dead body would indicate that the petitioner or his coaccused had any role in the death of Smt.Sujitha. The gold ornaments said to have been worn by her were not recovered, but only ingots were recovered. Therefore, evidence of witness Nos.30 and 31 from whose possession the recovery was effected is not available to implicate the petitioner. The financial obligations alleged by the prosecution are without any basis. The petitioner was available in his office at the alleged time of occurrence. Disregarding all those aspects, the final report was filed alleging offences against the petitioner. There is no CCTV footage or other electronic evidence in order to connect the petitioner with the offence. Thus prosecution of the petitioner is based on surmises and conjectures, and he is entitled to be released on bail. 5 Bail Appl.No.3389 of 2024 5. The Senior Public Prosecutor invited my attention to the statements of witnesses, particularly witness Nos.30 and 31 in order to contend that the materials are sufficient to establish the guilt of the petitioner and also his co-accused. I have perused the case diary also. 6. It is seen that the investigating officer searched and verified the house in question and its premises. But he could not initially notice any indications about commission of the offence at the house or to locate the body. After collecting evidence leading _prima facie_ to the involvement of the petitioner and his siblings, the petitioner was apprehended on 21.08.2023. It is seen that the petitioner confessed the guilt and following further enquiries and verifications, the body could be located and exhumed from the premises of the said building. It was on 22.08.2023. True, the recovery might not be under Section 27 of the Indian Evidence Act. But when the body was recovered from that premises and CWs.30 and 31 categorically deposed that they purchased gold ornaments from the petitioner, which, from the available materials, could 6 Bail Appl.No.3389 of 2024 be identified as that of the deceased, it cannot be said that there is lack of evidence to establish complicity of the petitioner with the crime. 7. The observations of the Forensic Surgeon in the autopsy report are consistent with the allegations of the prosecution. Ligature strangulation and hanging were the cause of death. The call data records collected by the investigating officer indicate the availability of both the petitioner and the deceased at the same place. Of course, their places of employment are nearby and therefore the tower location may not conclusively lead to the guilt of the petitioner. But his availability at the area of occurrence can be proved by that evidence. The other evidence such as recovery of gold ornaments of the deceased at the instance of the petitioner, recovery of mobile phone and SIM card of the deceased as also other circumstances, _prima facie_ , establish the guilt of the petitioner. In such circumstances, the contentions of the learned counsel for the petitioner that there is total dearth of materials to implicate the petitioner to the crime is not able to be accepted. 7 Bail Appl.No.3389 of 2024 ## 8. In **State of Jharkhand v. Dhananjay Gupta** **[2023 KHC OnLine 7267]** the Apex Court held that mere claim of innocence or undertaking to participate in the trial or contention of absence of specific allegation of any overt act cannot be assigned as reasons for grant of bail in a case of serious nature. The final report is already submitted and the matter is pending before the jurisdictional court. The trial can soon be taken place. The petitioner in such circumstances is not entitled to be released on bail. 9. The learned counsel for the petitioner would submit that having granted bail to the 5[th] accused, the petitioner has the legitimate right to get bail, especially when the final report is already filed. That contention also is not able to be countenanced since there is no question of invoking the principles of parity in the facts of the case. While applying the principles of parity, the Apex Court has observed in **Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and another [(2021) 6 SCC 230]** that the manner in which parity is to be determined would require the court not to 8 Bail Appl.No.3389 of 2024 exercise the power in a capricious manner but has to consider the totality of the circumstances before granting bail. Parity must focus on the role of the accused. Merely observing that another accused was granted bail is not sufficient for bail to be granted. The 5[th] accused did not have an active role in commission of the offence, whereas the petitioner is the prime accused. So the petitioner cannot claim bail on the rule of parity. 10. In the aforesaid circumstances, I am of the view that the petitioner is not entitled to be released on bail. The application is therefore dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 9 Bail Appl.No.3389 of 2024 ## **APPENDIX OF BAIL APPL. 3389/2024** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**|| |---|---|---| |**Annexure I**|**A COPY OF THE ORDER**|**DATED 20.12.2023**| ||**IN**<br>**CRL.M.P.NO.**|**3991/2023**<br>**IN**| ||**CP.NO.89/2023 OF THE**|**HON'BLE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT-I,**|| ||**MANJERI**|| |**Annexure II**|**A COPY OF THE STATEMENT GIVEN BY THE**|| ||**CW-1 ON 11/08/2023**||