Varghese vs State Of Kerala

A. Badharudeen, J

Anticipatory bail filed by accused Nos.1 and 2 in Crime No.146/2023 of Pudukkad Police Station, Thrissur, is the crux of this petition.

Heard the learned counsel for the petitioners and the learned Public Prosecutor. Perused the case diary materials as well as the medical records in this matter.

The prosecution allegation is that at about 11 a.m on 13.02.2023 the defacto complainant Benny K.Jose and his father Jose, were assaulted by the accused herein with intention to commit culpable homicide. The specific allegation is that a dispute arose as an outcome of an e-mail message. The allegation is to the effect that accused Nos.1 and 2, who are partners of Nellayi Kalan Pharmaceuticals, assaulted the defacto complainant and his father. The specific allegation is that Paul Varghese, the 2nd accused herein, hit down the defacto complainant and then Varghese, the 1st accused, who is the father of the 2nd accused, also reached the place of occurrence along with paper weight. Thereafter he had attacked the defacto complainant and his father with a knife and while defending the attack, the father of the defacto complainant sustained nasal injury. Thereafter Paul Varghese (A1) hit on the face of the father of the defacto complainant using paper weight. In consequence thereof, the father of the defacto complainant sustained serious injuries including fracture. This is the base on which the prosecution alleges commission of the offences punishable under Sections 341, 323, 324, 326, 308 & 506 r/w Section 34 of the Indian Penal Code.

While pressing for grant of anticipatory bail to the petitioners, it is submitted by the learned counsel for the petitioners that the petitioners are close relatives. According to the learned counsel for the petitioners, the petitioners and the defacto complainant and his father are partners of `Nellayi Kalan Pharmaceuticals'. The father of the defacto complainant and the 1st petitioner are brothers and they have been running pharmaceutical business. According to the learned counsel for the petitioners, the brother of the 1st petitioner, who is the father of the defacto complainant attacked the 1st petitioner with a weapon and when the 1st petitioner attempted to save his life, the alleged attack occurred and there was no intention to commit culpable homicide, as alleged. There is delay in lodging the FIR, since the FIR was lodged only on 17.10.2022 though the accident occurred on 13.10.2022. The learned counsel for the petitioners would submit that the FIS given and the statement of the witnesses including Mr.Antony, who is another brother of the 1st petitioner and the father of the defacto complainant, may be given emphasis to ascertain what actually transposed in this matter.

Whereas the learned Public Prosecutor opposed bail and submitted that the petitioners cannot be released on bail, since arrest, custodial interrogation and recovery of weapons are absolutely necessary. It is also submitted that the statement of Mr.Antony could not be given much emphasis in this case, since his statement is one supporting the petitioners, as against the statement of the other witnesses.

On perusal of the statement of Antony, it appears that he is supporting the petitioners in this crime; may be due to interest towards him in the business and rivalry against the defacto complainant and his father. But all other witnesses had given statement in support of the prosecution. Therefore, the statement given by Antony could not be given much emphasis, ignoring the statements of the defacto complainant, his father and the witness supported by medical documents and in the wound certificate of Jose K.P, the father of the defacto complainant, the following injuries were noted:

“Swelling and tenderness over right eye, diplopia (+) right eye, Comminuted fracture floor of right orbit with pockets of air within the right orbit – blow out fracture, fracture medial wall of right maxillary sinus, hemosinus right maxillary sinus, surgical emphysema in the right frontal peri-orbitial and malar region.”

Similarly Benny also sustained minor injuries including abrasion, pain right side neck, abrasion right leg and right knee.

Since serious allegations and consequential injuries including multiple fractures, as noted above, could be gathered prima facie, arrest, custodial interrogation and recovery of weapons are absolutely necessary to accomplish meaningful investigation and eventful prosecution. In such a case, grant of anticipatory bail would be fatal to the investigation and, therefore, I am of the view that the petitioners cannot be released on anticipatory bail.

Hence this petition fails and is accordingly dismissed.