Nihas vs State Of Kerala

Mohammed Nias C.P.J

This is an application filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.

The petitioner is the third accused in Crime No.589/2023 of Chithara (valavupacha) Police Station, Kollam District, for having committed offences punishable under Section 302 r/w Section 34 of the Indian Penal Code.

The prosecution case is that on 30/08/2023 at about 6 p.m., the petitioner, along with the first accused, his brother, another friend of the petitioner and the deceased, were travelling in a vehicle and came to S.S.Fuels at Chithara for filling petrol. While filling the petrol in the vehicle, a dispute arose between the first accused and the deceased. The deceased was allegedly pushed down to the ground from the vehicle, and the first accused suddenly jumped out from the vehicle, took a piece of concrete tile lying there and hit on the head of the deceased. On that assault, the deceased died on the spot. It is alleged that the petitioner, along with the deceased and other persons travelling in the car, also committed the crime by the first accused, thereby committing the above offence.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

The learned counsel appearing for the petitioner would say that the petitioner is totally innocent of the allegations and falsely implicated with ulterior motives. At any rate, he points out that the petitioner has been in custody since 30/08/2023, and further incarceration of the petitioner is unnecessary, considering his alleged role in the crime . Learned counsel for the petitioner argues that it is for A1 there are no overt acts against the other accused, it was much later that the petitioner was implicated as accused. He also points out that there are no other antecedents against him, and considering his minimal role in the case of having travelled with the deceased in the car, he may be enlarged on bail.

Learned Public Prosecutor Mr Suresh opposed the bail application.

Learned Public Prosecutor opposed the bail application, pointing out that it was A3, the petitioner herein, who invited the deceased to participate in a settlement talk, and there was an altercation, and he was taken in the car and was assaulted in the car itself. The car was stopped, and it was A1 who hit the deceased with a concrete slab; thus, it has to be seen that it was believing the words to A3, the deceased came, which resulted in the above incident and the death. It was pointed out that the petitioner has antecedents under the Abkari Act. Learned Public Prosecutor points out that the release of the petitioner at this stage will derail the investigation.

Considering the rival submissions and the fact that the report of the investigating officer shows that it was the petitioner who invited the deceased for the talk and was also a member of the gang in the car, though the specific overt act has been attributed to the first accused, the petitioner cannot be released on bail at this stage as it will affect the investigation. The apprehension raised by the prosecutor of the petitioner tampering with the evidence and investigation cannot be ruled out at this stage. I also note that the petitioner was arrested only on 15/09/2023, thus, on consideration of the above facts, I am not inclined to grant bail to the petitioner at this stage. Accordingly, the bail application is dismissed.