Shan 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.

BA No.7947/2023 is filed by the second accused while BA No.9128/2023 is filed by the first accused in Crime No.938/2023 of Chithara 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 persons travelling in the car, also committed the crime along with the first accused, thereby committing the above offence.

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

The learned counsel appearing for the petitioners submits that there are no overt acts alleged against A2 and the same is evident from the description in the FIR as well as in the remand application. Under such circumstances, the second accused who was arrested on 30/8/2023 may be released on bail as further detention is not necessary. He also argues that the deceased and the four other persons including the accused were travelling in a vehicle and because of the sudden provocation of the deceased with the first accused, the deceased was pushed out from the vehicle driven by the first accused, who was the brother of the second respondent and it was the first accused who allegedly hit on the head of the deceased with a concrete tile lying there There was no allegation that any weapon was being carried either by the first accused or the petitioner apart alleged single assault from the first accused, no other accused had caused any injuries on the deceased.

The Learned Public Prosecutor opposing the bail application submits that the third accused had invited the deceased person to the Kadakkamalla body building workshop situated in Kadakkal, through mobile phone for a discussion about the money borrowed from A2 by the deceased. A3, A1 and A2 and the deceased consumed alcohol at the workshop. A3 then, invited and took the deceased in the car bearing registration No.KL82 2827 with a common intention to commit the murder of the deceased person. A1, A2, A3 and A4 manhandled and slapped the deceased person while on the journey, A2 stopped the car and came out and hit on the shoulder of the deceased person. Later when they reached SS Fuels at Chithara to fill petrol at about 18 hours on 30.8.2023, they moved from the pump towards the eastern compound wall after filling fuel and as per the direction of A3, A1 pushed down the deceased Baiju to the ground from the vehicle. A1 and A2 suddenly jumped out of the vehicle and A1 intentionally took a piece of concrete tile lying there and hit the head of the deceased and he died on the spot. The specific role of A2 is mentioned in the report filed by the Prosecutor.

Having considered the rival submissions and the facts as detailed above, the injuries 18in number caused, the medical opinion as to the cause of death being due to the blunt injury sustained to the head inflicted by A1, the definite roles of A1 and A2 herein appearing from the records, the fact that the bail application of the third accused has already been dismissed by this Court in BA No.8326/2023 dated 19.10.2023, the investigation is still progressing, I find that the apprehension of the prosecution that releasing the petitioners on bail would vitally affect the investigation is well founded.

The gravity of the crime and the evidence in support of the charge are all against the petitioners being granted bail. Under such circumstances, I dismiss these bail applications.