Muhammed Fayis.K.T, vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole accused in Crime No.292/2024 of the Kalikavu Police Station, Malappuram, which is registered against him, for allegedly committing the offences punishable under Section 302 of the Indian Penal Code (in short IPC) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The petitioner was remanded to judicial custody on 26.3.2024.

The gravamen of the prosecution case is that: in 2020, the accused fell in love with a lady named Shahabanath (lady, in short), a mentally retarded woman having 40% disability. In October, 2020, the accused raped the lady on a false promise of marrying her. The lady turned pregnant. But, the accused openly proclaimed that he was not responsible for the pregnancy and he refused to marry the lady. He also said that he had not attained the marriageable age. On 3.8.2021, the lady gave birth to a baby girl, who was named Fathima Nazarin @ Jesnamol (deceased). The accused suspected the paternity of the child and repeatedly compelled the lady to undergo a DNA test, to prove the paternity of the child. On 13.1.2023, the lady filed a complaint before the Pookkottumpadam Police Station and Crime No.20/23 was registered against the accused for committing the offences punishable under Sections 450 and 376 (2)(l) of IPC. After the registration of the crime, the accused stated that he was willing to marry the lady. Then, the accused met with a major accident and suffered serious injuries. After that, the accused married the lady without conducting the DNA test of the child. Even after the marriage, the accused refused to take the lady and the child to his house at Kalikavu. Subsequently, the lady gave birth to the second child of the couple. The lady and the two children stayed in her parental home at Karulai. The lady approached the Kalikavu and Pookkttumpadam Police Stations for getting maintenance from the accused. Immediately, on 23.2.2024, the accused took the lady and the two children to his house. On 24.3.2024, at 13:30 hours, the accused brutally assaulted and inflicted fatal injuries on the deceased. Even though the deceased was taken to the NIMS Hospital, Wandoor, the child was declared brought dead. The relatives and neighbours of the child raised a suspicion that the deceased had been murdered by the accused because they have witnessed the accused brutally assaulting the deceased. Thus, the accused has committed the above offences.

Heard; Sri.B.A.Aloor, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner's culpability in the crime. The fact that the Kalikavu Police Station had initially registered the FIR under Sec.174 of the Cr.P.C proves that the petitioner is innocent. Actually, the child got choked, as food got stuck in her windpipe, and she died. There was no suspicion that the petitioner had committed the above offences. The Investigating Officer, on the influence of the petitioner's wife, has falsely implicated the petitioner as an accused in the case. Even though the petitioner had filed applications for bail before the jurisdictional Magistrate and the Court of Session, Manjeri, the same were dismissed by Annexures-2 and 3 orders. The investigation in the case is complete and the charge-sheet has been filed. The Investigating Officer has not collected any evidence against the petitioner. The petitioner does not have any criminal antecedents. The petitioner has been in judicial custody since 26.3.2024. It was the petitioner who was looking after the welfare of the child. The petitioner is entitled to the presumption of innocence in his favour. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report opposing the application. It is contended that the petitioner had physically tortured the child to death suspecting its paternity. The deceased -child had suffered 70 ante-mortem injuries. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Moreover, it would send a wrong message to the society. Hence, the application may be dismissed.

The prosecution allegation is that, the petitioner had physically tortured and murdered his own child.

In Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528], the Honourable Supreme Court has held that at the stage of considering a bail application, a detailed examination of evidence and elaborate documentation of merits of the case need not be undertaken. The Courts are only expected to indicate a prima facie conclusion why bail is refused or granted to the accused.

The sheet-anchor of the arguments of the learned counsel for the petitioner is that the petitioner is innocent of the allegations attributed against him. The entire prosecution case is concocted. The petitioner has been arrested solely on the basis of suspicion. Nothing has been recovered and no evidence has been gathered against the petitioner. It was the petitioner who was protecting the best interest of his child-deceased. Therefore, the presumption of innocence is to be drawn in favour of the petitioner. As the investigation in the case is complete and charge-sheet has been filed, the petitioner's further detention is unnecessary.

The objection of the prosecution is that the petitioner has committed a heinous crime in a diabolical manner. If the petitioner is enlarged on bail, it would send a wrong message to the society and the public would lose faith in the judicial system.

On a perusal of the materials placed on record, it is apparent that the petitioner and the lady (deceased's mother) had a long standing relationship. It is after the deceased was born on 3.8.2021 and after Crime No.20/2023 was registered by the lady, the petitioner got married to the lady.

It is the prosecution allegation that right from the time the lady conceived the deceased, the petitioner suspected the paternity of the child. It is also on record that, subsequent to the registration of Crime No.20/23, the lady gave birth to the second child of the couple. The lady and the two children were living in her parental home. On 23.2.2024, the petitioner took his wife and the two children to his parental home. Within a month after cohabitation, prosecution alleges that the petitioner brutally assaulted the deceased, and the child succumbed to fatal injuries.

On a perusal of the post-mortem report of the deceased dated 25.3.2024 submitted by the Directorate of the Government Medical College, Manjeri, it is deciphered that the deceased suffered 70 ante-mortem injuries. The internal examination of the deceased shows that she suffered injuries on her ribs, chest wall and her lungs, which were congested with pulmonary edema. The Assistant Police Surgeon has also certified that the child lost her life due to acute chronic subdural haemorrhage due to the blunt injuries sustained to the head and chest, and there were signs of suggestive continuous physical abuse of the child in the past.

On a consideration of the case diary also, I find that the prosecution witnesses have also stated that the petitioner used to continuously beat the deceased, and on 24.3.2024, he kicked on her ribs on several occasions and threw her on wall and to the almirah.

On a juxtaposition of the statements of the prosecution witnesses and the post-mortem certificate, prima facie I am satisfied of the petitioner's involvement in the crime. However, that is a matter to be ultimately decided after trial.

In Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows :-

“9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i)whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;(ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii)danger, of course, of justice being thwarted by grant of bail”.

It is also worth recollecting the observations made by the Hon'ble Supreme Court in Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr [(2012) 9 SCC446] in the following lines :-

“30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.”

The law has thus crystalised that while deciding an application for bail under Section 439, the courts are obliged to look into the nature, gravity and seriousness of the crime, the potential severity of the punishment that is likely to be imposed, the character, behaviour and standing of the accused, the prosecution’s legitimate apprehension regarding the tampering of evidence, the flight risk that is involved and whether releasing the accused on bail would have a deleterious impact on the society.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, the law referred to in the aforecited decisions and on comprehending the nature, seriousness and gravity of the accusations alleged against the petitioner, the prima facie materials that substantiate the petitioner's involvement in the crime, the brutal manner in which the deceased was murdered, and if the petitioner is enlarged on bail, it would have deleterious impact on the society, I am not satisfied that the petitioner is entitled to be released on bail. The application is meritless and is only to be dismissed.

Resultantly, the application is dismissed.