IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 10^TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946 BAIL APPL. NO. 10966 OF 2024 CRIME NO.760/2024 OF Vellarikundu Police Station, Kasargod PETITIONERS/ACCUSED 1 TO 5:

1 VIJAYAN.K.K AGED 62 YEARS S/O. KRISHNAN, KALLEPURAYIDATHIL HOUSE, PUNGAMCHAL, PUNNAKUNNU (P.O), MALOTH, KASARAGOD DISTRICT., PIN - 671533

2 VIJEETH.K.V AGED 35 YEARS S/O. VIJAYAN.K.K, KALLEPURAYIDATHIL HOUSE, PUNGAMCHAL, WEST ELERI, MALOTH, KASARAGOD DISTRICT., PIN - 671533

3 GEORGE AGED 66 YEARS S/O. THOMAS, KOTTUR, VALLIKOCHI, ELERITHATTU, WEST ELERI, KASARAGOD DISTRICT., PIN - 671314

4 SIJO.K.G AGED 40 YEARS S/O. GEORGE, KOTTOOR HOUSE, WEST ELERI, ELERITHATTU, KASARAGOD DISTRICT, PIN - 671314

5 K.K. HARIDAS AGED 58 YEARS S/O. K.I. KRISHNAN, KALLEPURAYIDATHIL, PUNGAMCHAL, PUNNAKUNNU(P.O), WEST ELERI, PLACHIKKARA, KASARAGOD DISTRICT., PIN - 671533 BY ADV NIREESH MATHEW RESPONDENT/S:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 SRI G SUDHEER, PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

10.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.V.KUNHIKRISHNAN, J.

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B.A.No.10966 of 2024 ----------------------------------------------

Dated this the 10^th day of January, 2025

ORDER

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioners are the accused in Crime No.760/2024 of Vellarikundu Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 189(2) 191(2)(3), 115(2), 118(1), 74, 110, 296(b)

and 190 of the Bhartiya Nyaya Sanhita, 2023 (for short, BNS).

3. The prosecution case is that, on 14.12.2024 at

11.15 AM, the accused persons tried to unload the metal rocks from the lorry for the purpose of concreting the road which is in dispute. It is alleged that while the defacto complainant and her siblings tried to restrain them, accused Nos.1 to 5 using iron rods and wooden sticks unlawfully assembled and the 1^st accused verbally abused the defacto complainant and by catching hold of her hair assaulted on her head with the iron rod to which she defended or else, the same would have resulted even in her death. It is further alleged that the 2^nd accused caught hold on the breast of the defacto complainant thereby outraging her modesty and accused Nos.3 and 4 used iron rod and wooden stick and the 5^th accused used his hand to assault the siblings of the defacto complainant. Hence it is alleged that the accused have committed the offences.

4. Heard counsel for the petitioners and the Public Prosecutor.

5. The counsel for the petitioners submitted that even if the entire allegations are accepted, no offence under Section 110 of BNS is attracted. The counsel submitted that the other non-bailable offence is under Section 118(1) of BNS. Only minor injury is sustained to the victim. It is also submitted that Section 74 of BNS is also not attracted because even if the prosecution case is accepted, the intention of the accused is not to outrage the modesty, but to attack the defacto complainant. The Public Prosecutor opposed the bail application and submitted that the injured lady sustained injury.

6. This Court considered the contentions of the petitioners and the Public Prosecutor. Admittedly the injury sustained to the victim is only an abrasion of thigh and forearm. Whether an offence under Section 110 of BNS is attracted in the facts and circumstances of the case is a point to be decided during the investigation and by the trial court if final report filed. Similarly whether Section 74 of BNS is attracted is also to be investigated by the Investigating Officer. But the same can be proved by the prosecution through oral evidence. Custodial interrogation of the petitioners is not necessary.

7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception