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2022 Supreme(Online)(KER) 36447
HIGH COURT OF KERALA
VIJU ABRAHAM, J
AJEESH KUMAR – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl./4163/2022
PUBLIC PROSECUTOR C.HARIKUMAR, DIRECTOR GENERAL OF PROSECUTION(AG-10)P.NARAYANAN, SENIOR G.P., ADDL.PUBLIC PROSECUTOR() SANDRA SUNNY ARUN KUMAR M.A, K.R.SUNIL
Bail considerations must balance the severity of the charges against the individual's criminal history and role in the alleged crime, ensuring protection of the investigation.
Headnote:
Bail - Unlawful Assembly - IPC Sections [143, 144, 147, 148, 341, 323, 324, 326, 307, 302 r/w 149] - The court examined elements of common intention and participation among accused, while balancing severity of allegations and personal circumstances, leading to a nuanced bail decision.
Fact of the Case:
The accused, while allegedly involved in a fatal assault, claim lack of premeditation and mutual provocation. Arguments assert the incident was spontaneous and not a deliberate act of murder, with conflicting witness accounts.
Issues: Whether the accused could be granted bail given the serious charges, their involvement, and the potential risk to the investigation and witnesses.
Ratio Decidendi: The court determined bail eligibility based on severity of charges, lack of premeditation, and the individual circumstances of the accused, including prior criminal records.
Final Decision: B.A. No.4163/2022 dismissed; B.A. No.3933/2022 dismissed for the first petitioner; bail granted to the second petitioner with stringent conditions.
O R D E R
Dated this the 11th day of July, 2022 These are applications for Regular Bail.
2. B.A. No.3933/2022 has been filed by accused Nos.1 and 3 whereas the B.A. No.4163/2022 has been filed by 4th accused in Crime No.204/2022 of Haripad Police Station alleging offences punishable under Sections 143 , 144, 147, 148, 341, 323, 324, 326 and 307 and 302 r/w Section 149 of the IPC .
3. Prosecution case is that on 17.03.2022 at about
5.30 p.m., near Neetuozhukku junction at Pallipad, A1 to A8 armed with deadly weapons formed themselves into an unlawful assembly, with the common object of committing murder of Sabari, the son of the de facto complainant, wrongfully restrained him from proceeding further, beat him with stick and hit him with stone and helmet on his head and caused him to sustain fracture and injury on his head and brain. Subsequently, the victim succumbed to his injuries on 23.03.2022. Thus the accused has committed the offence mentioned above.
4. The contention of the petitioners in B.A.
No.3933/2022 is that they were playing football in the ground adjacent to the scene of occurrence and that they seem to have come to the scene with no knowledge or intention of furthering the common object of the unlawful assembly as alleged by the prosecution. The petitioners had not become members of the unlawful assembly at the place of occurrence and as such had absolutely no time or opportunity of sharing any common object of committing the murder of the deceased. The essential ingredient to constitute an offence under Section 149 of the IPC being that the person should have been a member with the knowledge and intention of executing the common object for which the unlawful assembly was formed and the same has not been established. It is also further contended that, the applicant No.2 in B.A. No.3933/2022 has no criminal antecedents also. It is submitted that they are in custody from 23.03.2022 onwards.
5. The contention of the petitioner in B.A.
No.4163/2022 is that, the allegations levelled by the respondent against the petitioner is a complete falsehood and the deceased person Sabari, who is the son of a Contractor came along with his friends and other anti-socials, questioned the petitioner and his friends who were playing in a playground by alleging that the petitioner herein along with his friends spread rumours against the deceased in the local areas as well as in the social medias having illicit relationship of him with the mother in law of the petitioner one Ambili. It is further submitted that in these incidents there was a scuffle between both the groups and during this time, the deceased Sabari sustained an injury on his forehead with the hit of a helmet. It is also brought to the notice of this Court that several injuries were sustained on both the sides and the contra allegations of obstructing the deceased in Neetozhukk junction while he was returning to his home in a motorbike is all an afterthought cleverly created by the investigating agency with the aid of the near relatives of the deceased. There is no element to attract an offence under section 302 of IPC . The immediate provocation of two groups resulted in a scuffle and the investigating officer very cleverly incorporated stone and stick to attract the grave nature of the offences. From the available records collected by the investigation agency, it can be seen that the death of the diseased is nothing but a culpable homicide not amounting to murder and the incident happened without any pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel, not acted in a cruel manner since the prime injury has happened by the hit of a helmet and that too in a playground where in the petitioner along with his friend were playing.
6. The parents of the deceased have got themselves impleaded in B.A. No.3933/2022 and seriously opposed the application for bail, that their son was a construction contractor and he was brutally attacked by the petitioners her
