Sherin V John vs State Of Kerala

Sunil Thomas, J

The sole accused in crime No.1123 of 2016 of Chengannur Police Station for offences punishable 302, 201 IPC and S.3 r/w 25(1B)(a), S.5 r/w

S.27(1) of the Arms Act is the applicant in this bail application.

The accused is the son of deceased Joy John and CW1. It is stated that the accused along with the father and other members had lived abroad for

a long period. According to the prosecution, the relationship of the petitioner with his father was strained. After returning to India, father had

disassociated the accused from the family affairs and transactions. He was kept away from the affairs of the estate held by the father. Father had

also imposed financial restrictions on the accused. On the other hand, accused maintained a suspicion that father had an illicit relationship with CW2.

Due to this enmity, accused planned to commit murder of his father. Accordingly, he broke open the almirah in the house, stole the revolver owned by

the father, concealed it and accompanied father to Trivandrum on 25.05.2016, to get their car serviced. The vehicle was driven by the accused. While

returning, somewhere in the Highway, father and son picked up a quarrel, the vehicle was parked on the road side and the accused allegedly shot on

the head of the father thrice. He succumbed to the injuries immediately,. The body was wrapped with towel, kept lying on the seat and the body was

taken to the native place and parked the vehicle in the cellar of a four storied building owned by the deceased. Thereafter, petitioner allegedly

attempted to conceal the evidence and to destroy the body. He poured petrol on the body and tried to burn it. Since it was not successful, he

dismembered the body, wrapped in plastic papers, took the vehicle from the cellar and on the way, threw the body parts at different places.

On getting information, crime was registered and in the course of the investigation, accused was arrested on 30.05.2016. After completion of

investigation, final report was laid. The matter is now pending S.C.No.757 of 2016 of the Additional Sessions Judge-I, Mavelikkara.

In the meanwhile, the accused had successively moved bail applications, which were all dismissed by the trial court and also by this Court on the

ground that the murder was a planned one and it was a cruel and sensational murder. Ultimately, the matter came up before this Court in B.A.No.493

of 2019. This Court called for a report from the Additional District Court to inform the approximate time limit within which the above matter can be

taken up and disposed of. It was informed that, 99 witnesses were arrayed and 100 documents were produced apart from several material objects.

FSL report was awaited. The Court informed that, for the examination of the crucial witnesses who were totally unconnected with the FSL report, an

outer time limit of eight months was required. Regarding the remaining witnesses, it was informed that, remaining witnesses can be examined in two

months after the receipt of the FSL report and after supplying copies to the accused. This Court directed the trial court to dispose of the matter at the

earliest. It was also directed that, alternatively, after the crucial witnesses including the mother and close relatives are examined, accused was free to

seek bail, since the remaining witnesses were either official witnesses or independent witnesses, not related to the accused.

Thereafter, accused moved this Court by filing B.A.1913 of 2020. It was noted by this Court that, along with the prosecution evidence, a tablet, two

hard disk, computer, a pen drive and a compact disk had been produced. It was claimed by the prosecution that the above documents were crucial and

sufficient to connect the accused with the crime. It was sent for electronic examination and reports were awaited.

Hence, by an order of this Court, the Director of FSL was directed to expedite the examination and to give priority to the examination of the

samples pending before it for examination, considering the fact that accused was in jail. There was a further direction to the trial court, to complete the

examination of the witnesses who were unconnected with the FSL report within 8 months and remaining witnesses connected with the FSL report

within two months thereafter the receipt of the report. It was made clear that, immediately after examination of the witnesses who have direct

knowledge regarding the incident and are closely related to the accused and thereby, on whom the accused may possibly have an emotional influence,

applicant will be free to file application for bail. The court below was directed to consider such bail application in the light of the contentions set up by

the learned counsel for the accused untrammelled by any of the observations made by this Court in the bail application.

It emerges that, while the above applications were pending, accused again approached this Court contending that, some of the copies of the

electronic records were not supplied to him. It was contended that the non supply of the crucial material objects/electronic documents was violative of

the right of the accused to an effective defence. The issue was considered by another Bench of this Court and by the judgment reported in Sherin V

John v. State of Kerala (2018(3) KLT 298), directed the trial court to supply the copies of the electronic records which the petitioner had applied for,

except the contents of the tablet, subject to the condition that before supplying the copies, the contents of the records shall be recorded in court in the

presence of the petitioner's counsel as well as the Public Prosecutor or their representative and both of them shall attest the veracity thereof, so that,

there would be no dispute regarding the contents later. Regarding the tablet, the counsel for the petitioner was allowed to view the contents in the

presence of the Public prosecutor and to take notes, under the direct supervision of the Chief Ministerial Officer of the Court in a closed court room

building.

It is now reported that, inspite of the above, the above documents were not supplied. Crl.R.P.No.545 of 2020 was filed by the accused before this

Court alleging that, even necessary copies of the electronic documents were not supplied to the accused. The above revision was admitted and is

reported to be pending. A stay was also granted by the Court against the continuation of trial. It was further submitted at the time of hearing that the

Government has also filed a petition to review the judgment reported in Sherin V John's case (supra).

The petitioner has approached this Court in the present background contending that he has been languishing in jail for more than 5 years and there is

no chance of the trial taking place in the immediate future. It was also contended that even if the trial commences, the possibility of delay of trial due

to reasons not attributable to the accused cannot be disputed. It was further contended that the present stay of trial was granted at his request since

the petitioner was really aggrieved by the non supply of the crucial documents, which disabled him from effectively contesting the case. The delay in

trial cannot, in the above circumstances, be attributed to the petitioner. It was further contended that, at the most, gruesomeness attributed to the

murder can only be in relation to the disposal of the dead body.

Vehemently opposing the application, the learned Government Pleader contended that, it was a gruesome murder. Father was murdered by the

son after considerable planning. Weapon was kept ready by him and several planned acts were done by the accused to conceal the evidence. He

carried for two days the dead body to several places, keeping it concealed in the dicky. After careful planning, the body was dismembered and body

parts were thrown at different places. The track record of the petitioner while abroad, was also bad. It was also contended that, since crucial

witnesses were the close relatives, releasing the accused on bail was likely to jeopardize the trial.

Pursuant to a direction of this court, learned sessions judge, by his communication dated 24.06.2021 informed that this Court had directed in

Crl.M.C.No.5160 of 2017 that copies of electronic records shall be supplied to the accused and that, contents of the electronic records had to be

recorded in court in the presence of the petitioner's counsel as well as the public prosecutor or their representative who shall attest the veracity

thereof. It was reported that, on receipt of the electronic records from the FSL after examination, on 01.10.2020, the contents of the CD were

recorded in Court with the assistance of Assistant Director, FSL, Thiruvananthapuram and a copy of the same was taken and supplied to the accused.

However, the Assistant Director reported to the Court that the examination and copying of the contents in the hard disc and pen drive cannot be done

in court, since it required forensic work station and the said process had to be done only in the laboratory atmosphere. The learned Judge had sought a

clarification from the High Court by letter dated 05.10.2020, for which, reply was awaited. It was also reported that, pursuant to the stay granted by

this Court in Crl.R.P.No..545 of 2020, the trial could not be commenced till that date.

Definitely, the allegation against the accused is very serious and it relates to a gruesome murder and disposal of evidence by dismembering the

body. However, if the seriousness and the gruesome of the murder alone is considered, probably the accused may not be entitled for bail at any point

of time. However, that alone cannot be the reason for considering the bail and the settled legal position also does not intend that to be the only criteria.

The court has to balance the interest of the prosecution as well as the fundamental rights of the accused for an expeditious trial. It is clear that the trial

cannot commence till the disposal of Crl.R.P.No.545 of 2020. Even thereafter, the question relating to the supply of the copies of the tablet and pen

drive still requires to be considered. Evidently, in the present scenario, there is no possibility of the trial being conducted in an expeditious manner,

which factor cannot be brushed aside.

The learned counsel for the petitioner, strenuously marshaling for bail, relied on the decision reported in Union of India v. K.A.Najeeb, (2021 (3)

SCC 713), wherein the Supreme Court had held that, long period of incarceration and unlikelihood of the trial being completed in the near future, has to

be considered in the light of right to liberty and access to speedy justice and trial, enshrined under Art.22 of the Constitution specifically, and Part II of

the Constitution generally. The primacy of the fundamental right was upheld by the Supreme Court in the above case. Learned counsel for the

petitioner projected that, in the above case, the accused was alleged with offence under UAPA. Still the Supreme Court had granted bail, keeping in

mind the length of period spent by the accused in that case and the unlikelihood of the trial being completed in the near future and hence, justified the

grant of bail. Court reiterated that, an attempt has to be made to strike a balance between the right of the accused to lead evidence of its choice and

the right of the prosecution to establish charges beyond any doubt in the background of the rights guaranteed under Part III of the Constitution, which

is well protected.

A balance between seriousness of the charge and the likelihood of the trial not being completed within a specified time was reiterated by the

Supreme Court in Angela Harish Sontakke v. State of Maharashtra ((2021)3 SCC 723).

Having considered the entire facts, in the light of the law laid down by the Supreme Court and the facts involved in the present case, I am satisfied

that the petitioner has been languishing in jail for the last 5 years. Definitely, the nature of the allegation cannot be lightly seen. Still, even though

several attempts were made by the trial court as well as this Court to expedite the trial, it was not successful due to the peculiar facts involved and the

nature of material involved in this case. Having considered this, petitioner alone cannot be blamed for delay in the trial. Having considered the anxiety

of the prosecution to protect the interest of the prosecution and the interest of the accused to have a fair trial and his right to liberty, this Court is

constrained to take note of certain peculiar features of this case.

It is seen that the crucial witnesses who are blood relatives are CW1, the mother, CW26 the brother and CW27 the sister. Essentially, CWs.26

and 27 are arrayed by the prosecution to establish that the accused was leading a wayward life and was not maintaining good relationship with the

family. CW1 had allegedly seen the missing of revolver from the broken almirah. She was also the person who had seen the accused proceeding with

the father to Trivandrum. She is also expected to narrate the facts relating to strained relationship between the parties. CWs.2 and 3 are husband and

wife who are arrayed to show that there was an allegation that deceased had illicit relationship with CW2. CWs.1 to 11 are proposed by the

prosecution to establish the strained relationship with the father and accused, the motive and the circumstances of the case. CWs.12 to 25 are also

arrayed to show the strained relationship between the father and the accused. There are no direct eye witnesses to the murder and also the disposal

of the body. Definitely, prosecution is banking on circumstantial evidence to that extent. Apart from the oral evidence, the prosecution is also relying

on the digital and electronic evidence, including the cctv visuals, the tablet, computer discs and forensic evidence to establish the involvement of the

accused. Hence the anxiety expressed by the prosecution that accused may influence witness does not appear to be very relevant.

Having considered the entire facts, I feel that, petitioner can now be granted bail on the following strict conditions.

(i) He shall execute a bond for a sum of Rs.One lakh with two sureties for the like sum each.

(ii) He shall surrender his passport or if it has already been surrendered, file an affidavit before the Sessions Court within a period of 15 days from the date of

execution of the bail bond.

(iii) Petitioner shall not in any manner try to contact, influence, threaten or coerce any witness. In case of any breach of the above condition, his bail is likely to be

cancelled.

(iv) Till the trial is over, the petitioner shall not enter the limits of Mavelikkara Sessions Division, except for appearance in the above case or any court of law where

his presence is absolutely essential. In case of extreme emergency, he will be free to enter the Pathanamthitta district, with the permission in writing of the trial court.

Bail application is allowed accordingly.