Lilil Kumar. M N vs State Of Kerala

A.Badharudeen, J

Accused Nos.1 and 2 in Crime No.8/23 of Sulthanbathery Poilice Station, Wayanad, seek anticipatory bail in this petition filed under Section 438 for the offences punishable under Sections 341, 324, 308 r/w 34 of the Indian Penal Code.

Heard the learned counsel for the petitioners as well as the learned Public Prosecutor and Advocate N.Anand, who appeared for the defacto complainant.

The prosecution case is that at about 00.30 hours on 1.1.2023 when the defacto complainant's brother Sri Renjith entered into the stage of a new year program (DJ party) at `Saptha Resort', Polavayal, after having dinner therein, requesting a song to be sung, the 1st accused Lilil and 2 other persons wrongfully restrained the defacto complainant's brother and beat on his forehead. When the defacto complainant reached at the stage, the 1st accused hit the defacto complainant on his nose and right eye with a hitting block. Accordingly, the defacto complainant sustained injuries in his head and nose. The prosecution allegation is that the accused herein assaulted the defacto complainant with intention to commit culpable homicide. Accordingly, the prosecution alleges commission of offence punishable under Sections 341, 324, 308 r/w 34 of the Indian Penal Code.

In this case, it is submitted by the learned counsel for the petitioner that initially no non bailable offence was incorporated and subsequently offence under Section 308 of the Indian Penal Code was also incorporated. It is submitted by the learned counsel for the petitioners that this is an occurrence arose out of sudden provocation on account of a scuffle in between the defacto complainant and the accused while new year program and musical concert as part of DJ party were going on. It is submitted by the learned counsel for the petitioners that on perusal of the the medical certificate of the defacto complainant, produced herein as Annexure R3(b), no serious injury is noted. Accordingly, the learned counsel for the petitioners submitted that the offence under Section 308 of the IPC could not be justified in the facts of the given case. Therefore, the petitioners are liable to be released on pre-arrest bail.

Whereas the learned counsel for the defacto complainant zealously opposed grant of anticipatory bail to the petitioners mainly relying on Annexure-R3(a) photographs and Annexure-R3(b) wound certificate. According to the learned counsel for the defacto complainant, the accused herein assaulted the defacto complainant and his brother without any justification while musical concert was going on. Further, they sustained injuries as could be read out from the wound certificate. Therefore, custodial interrogation and recovery of the hitting block are necessary. In such a case, grant of pre-arrest bail would stall the investigation and also would be prejudicial to the interest of the defacto complainant.

The learned Public Prosecutor also supported the argument of the defacto complainant while submitting that the 1st petitioner is a habitual offender and he has involvement in 8 other cases. It is also pointed out by the learned Public Prosecutor that the 1st petitioner absconded after commission of this crime and as per the call details he has been staying somewhere in Karnataka State to avoid arrest.

In this matter, the specific allegation is that during a musical concert in connection with the new year program at `Saptha Resort', the 1st accused wrongfully restrained Renjith when he demanded a song to be sung at the musical concert in connection with new year DJ Party, the accused herein wrongfully restrained and beat on his forehead. The further allegation is that when the defacto complainant intervened, the 1st petitioner beat on his head by using a hitting block. Therefore he sustained injuries on his nose and right eye. The wound certificate of Renjit Ramachandran shows swelling and contusion on left temporary region. Similarly in the wound certificate of Rahul Ramachandran,

(1) lacerated wound at proximal part of nose 0.2 X 0.2 X 0.1 cm,

(2) abrasion on right upper eye lid and (3) bleeding from nose, were the clinical diagonosis.

It is also argued by the learned counsel for the petitioners/accused that the injuries are not serious. It is evident from the wound certificate of Renjit Ramachandran that, he sustained only minor injuries. Though it is alleged that the 1st accused beat on the nose of the defacto complainant, no serious injuries were noted as a result of hit by using a hitting block.

It is to be noted that the 1st accused/1st petitioner used a hitting block to hit the defacto complainant on his nose and the same caused two injuries to the defacto complainant with bleeding as extracted herein above. The 1st petitioner is having criminal antecedents as narrated here under.

“i) Bathery Police Station, Crime No.362/2018 u/s 341, 323, 506, 295(b) r/w 34 IPC;

ii) Kalpetta Police Station, Crime No.755/2020 u/s 143, 269 r/w 149 IPC & 118 (e) of Kp Act & KEDO;

iii) Bathery Police Station, Crime No.382/2018 u/s 107 CrPC;

iv) Bathery Police Station, Crime No.985/2015 u/s 341, 323, 427, 143, 147 r/w 149 IPC;

v) Bathery Police Station, Crime No.618/2015 u/s 324, 308, 341 r/w 34 IPC;

vi) Bathery Police Station, Crime No.978/2015 u/s 143, 283 r/w 149 IPC;

vii) Bathery Police Station, Crime No.282/2018 u/s 7 & 8 of KG Act;

viii) Bathery  Police  Station,  Crime  No.1032/2021  u/s  151 CrPC.”

Thus this is the 9th crime registered against the 1st  accused.

In fact, the overtact at the option of the 1st accused is graver than the overtact at the instance of the 2nd accused. It is pertinent to note that the 1st accused kept a hitting block accessible to him at the sage when musical program was going on and the same was used to beat the defacto complainant. So the intention of the defacto complainant to beat the defacto complainant with knowledge to cause fatal injuries could not be ignored at the initial stage of investigation. Therefore, arrest, custodial interrogation and recovery of the weapon at the instance of the 1st accused are absolutely necessary in this case. Therefore, grant of anticipatory bail to the 1st accused/1st petitioner cannot be considered. Therefore, this petition at the instance of the 1st petitioner stands dismissed.

Coming to complicity of the 2nd petitioner/2nd accused, there is no allegation that he had used any weapon to beat the defacto complainant or his brother and he has no criminal antecedents also. In view of the above, I am of the view that the investigation as against the 2nd petitioner can effectively be carried out by subjecting himself for interrogation for the purpose of effective investigation.

In the result:

(i) the anticipatory bail plea at the instance of the 1st petitioner stands dismissed.

(ii) The bail plea at the instance of the 2nd  petitioner/2nd accused stands allowed on the following conditions:

(a) The 2nd petitioner shall surrender before the Investigating Officer within 7 days from today. On such surrender, the Investigating Officer can question the petitioner. In the event of his arrest, the Investigating Officer shall produce the petitioner before the jurisdictional court on the date of arrest itself.

(b) On such production, the jurisdictional court shall release the petitioner on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) by himself and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court.

(c) The petitioner shall co-operate with investigation and shall be made available for interrogation as and when directed by the Investigating Officer.

(d) The petitioner, shall not, intimidate the witnesses or interfere with the investigation in any manner.

(e) The petitioner shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted.