Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943 BAIL APPL. NO. 5074 OF 2021 CRIME NO.675/2021 OF WADAKKANCHERY POLICE STATION, THRISSUR DISTRICT PETITIONERS/ACCUSED NOS.1 & 2: 1 JINS AGED 29 YEARS S/O.SHAJI, VALLATHUKARAN HOUSE, ONNAM KALLU DESOM, KUMARANELLUR VILLAGE, THRISSUR. 2 SANAL AGED 29 YEARS S/O.SOMAN, PUTHIYANAM PRTAMABATH HOUSE, KANJIRAKODE DESOM, THRISSUR. BY ADVS. P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN VIPIN NARAYAN SRUTHY N. BHAT RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031. BY ADV. SMT. SREEJA V., PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON 27.07.2021 DELIVERED THE FOLLOWING: -2-
ORDER
This is an application moved by accused Nos.1 and 2
in crime No.675/2021 of Wadakkanchery police station. According to the petitioners, they were arrested for the case on 16.06.2021 and since then are in custody. They contended that they are totally innocent of the allegations, that they have been falsely implicated, that continued detention of the petitioners is not necessary. Therefore, they seek to release them on bail under Section 439 of the Cr.P.C.
2. The learned counsel for the petitioners submitted
that originally the case was registered on the death of one Colin Jacob under Section 174 of the Cr.P.C. After the post- mortem examination, section of law has been altered. Now offences under Sections 341, 323, 325 and 304 read with Section 34 IPC are incorporated. Both the petitioners were arrested on 16.06.2021. According to the learned counsel, if at all there was some melee and a free fight before the
-3- death of Colin Jacob, it was not a pre-meditated one. There was no intention or knowledge that their act would cause the death of the said Colin Jacob. They are in custody for more than one month and thus, the application is for releasing them on bail.
3. The learned Public Prosecutor has opposed the
application. According to him, eventhough initially the crime was registered under Section 174 of the Cr.P.C., post- mortem examination and statement of the doctor, who conducted post-mortem examination, revealed that the said Colin Jacob had sustained serious pre-mortem injuries and therefore, the incident had not happened as originally intimated to the police. The learned Public Prosecutor also made available the case records. I have perused the case records.
4. The application is opposed on the premise that
further questioning of material witnesses have to be done, that the petitioners are likely to indulge in influencing the witnesses and also tamper with the evidence and therefore, -4- the application is sought to be dismissed.
5. The alleged incident had happened on the night
between 29.05.2021 and 30.05.2021 on the up-stair of the Wadakkancherry Employment Exchange building. That day, some youngsters including the deceased Colin Jacob, the petitioners, who are accused Nos.1 and 2 and others had a get together; it was a liquor party. Some of the witnesses have stated that the first petitioner had arranged arrack for the consumption of the parties; arrack was brought there more than two occasions and most of the youngsters who gathered there including the deceased had consumed alcohol and there was a free fight between the petitioners and the said Colin. Whatever it may be, it has come out that one of the persons, one Rojith had fallen unconscious
and was removed to the hospital. He was taken to the Medical college Hospital where he underwent scanning on the head. Later, he was discharged from the hospital. On discharge, Rojith and his brother-in-law wanted to get back to the place of occurrence for collecting his mobile phone -5- etc,; on the way, they found the said Colin Jacob laying on the ground in an unconscious stage. That was how, he was removed to the hospital. At that time, he was unconscious; he was not speaking out. Everything had happened in the midnight. Later, at day time, he died of the injuries sustained in the occurrence. During the course of investigation, it came out that he had tested COVID-19 Positive.
6. Initially the crime was registered under Section
174 of the Cr.P.C. During the course of the investigation, it came out that Colin had sustained serious pre-mortem injuries and that was how, section of law was altered. He had fallen from the terrace of the building. Eventhough the immediate cause for the death was the fall from the terrace, he had sustained serious pre-mortem injuries and that was how the Medical Officer, Additional Professor and Deputy Police Surgeon, Forensic Department, Dr.Hitesh Shankar was examined by the Investigating Officer. Eventhough the copy of the post-mortem certificate is not available in the
-6- case diary, I have gone through the statements of Dr.Hitesh Shankar. The statement of Dr.Hitesh Shankar dated 14.06.2021 indicates that injury Nos.1, 7 and 8 were not due to the fall from the terrace.
7. There are two statements given by Dr.Hitesh Shankar; one dated 14.06.2021 and the second dated
15.06.2021. From the statement dated 14.06.2021, the doctor is very much sceptical about three injuries found on the body of the deceased. Injury No.1 was a contusion on lip. According to him, the probability of this contusion occurring during the fall is a very remote. Similarly, injury No.7 is rupture of spleen and injury No.8 is an inward compression fracture of the hyoid bone. According to him, it is very remote the deceased sustaining such injuries during a fall. So, he wanted the investigating officer to investigate thoroughly the possibility of assault, which he had suffered prior to his fall.
8. The perusal of the case diary indicates that petitioners had manhandled the deceased. At first, there -7- was an incident in which, the petitioners had manhandled
the said Rojith. Then the deceased had reportedly intervened and he had pulled the chain of beads worn by the first petitioner which broke. Provoked by this, both the petitioners thrashed the deceased; at the time when Rojith was removed to the hospital, the deceased was sitting in an unconscious condition on the verandha. The statement of the doctor who conducted post-mortem examination indicates that serious injuries had caused to the deceased prior to his fall. Therefore, in the nature of the allegations, the investigating officer has to probe thoroughly as to whether the deceased had fallen from the terrace accidentally or some other foul play was there causing him fall. At this crucial stage of investigation, it is not in the interest of justice to release them on bail. The application is dismissed. Sd/- K.HARIPAL JUDGE nkr/26.07.2021