BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Tuesday, the First day of November Two Thousand Eleven PRESENT THE HON`BLE MR.JUSTICE S.NAGAMUTHU CRL OP(MD) No.13087 of 2011 NALLASAMY @ KUMAR ... PETITIONER/ACCUSED NO.2 Vs THE INSPECTOR OF POLICE THALAIYUTHU POLICE STATION, TIRUNELVELI DISTRICT, CRIME NO.344/2011 ... RESPONDENT/COMPLAINANT For Petitioner : M/S. R.ANAND Advocate For Respondent : Govt. Advocate ( Crl. Side) PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioner is the second accused in Crime No.334 of 2011 on the file of the respondent police for offences under Sections 174 Cr.P.C. altered into one under Section 302 IPC. Apprehending arrest, he is before this Court with this petition seeking anticipatory bail. 2. According to the case of prosecution, there are two accused. The first accused is the wife of the deceased and the petitioner is the second accused. It is the case of the prosecution that the petitioner had illicit intimacy with the first accused, which was objected to by the deceased. Enraged over the same, it is stated that these two accused joined together and killed the deceased by smothering. Initially a case was registered only under Section 174 Cr.P.C. Subsequently, after the opinion of the Doctor, who conducted autopsy on the body of the deceased, the case was altered into one under Section 302 IPC. 3. The learned counsel for the petitioner would submit that the first accused was in advanced stage of pregnancy and she gave birth to a child on 03.08.2011. Therefore, according to him, it would not be true that the petitioner called the first accused for sexual intercourse on 26.07.2011. 4. I have considered the above submissions. 5. The Inspector of Police is present, who has produced the Case Diary. A perusal of the opinion offered by the Doctor would read as follows: “No definite opinion could be given, regarding the exact cause of death. However, death due to asphyxia due to homicidal smothering could not be ruled out”. 6. In my considered opinion, when the Doctor has not given opinion regarding the definite cause for death that the death was only due to https://hcservices.ecourts.gov.in/hcservices/ homicidal smothering, it cannot be taken as though the deceased was done to death by smothering. Thus, prima facie, I find that there are no materials to show that the death is due to homicidal smothering. In such view of the matter, I am inclined to grant anticipatory bail to the petitioner and I make it very clear that any observation, which I have made in this order, shall not be construed as a final opinion expressed by this Court. All these observations are only for the purpose of anticipatory bail application. Apart from the same, the fact that the first accused gave birth to a child on 03.08.2011, wherein the occurrence was on 26.07.2011 is also a fact in favour of the accused. For all these reasons, I am inclined to grant anticipatory bail to the petitioner, but with stringent conditions. 7. Accordingly, the petitioner is ordered to be released on bail, in the event of arrest or on his appearance before the learned Judicial Magistrate No.III, Tirunelveli, on executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the respondent police or the police officer who intends to arrest or to the satisfaction of the learned Magistrate concerned and on further condition that the petitioner shall reside at Madurai and report before the Tallakulam Station, everyday at 10.30 a.m. until further orders. The petitioner shall comply with the condition stipulated under Section 438 Cr.P.C. scrupulously. sd/- 01/11/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO 1. THE JUDICIAL MAGISTRATE NO.III, TIRUNELVELI. 2. -DO- THRO THE CHIEF JUDICIAL MAGISTRATE, TIRUNELVELI. 3. THE OFFICER IN CHARGE, TALLAKULAM POLICE STATION, MADURAI. 4. THE INSPECTOR OF POLICE. THALAIYUTHU POLICE STATION, TIRUNELVELI DISTRICT. 5. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1. CC to M/S. R.ANAND Advocate SR.No.37473 SR : 03.11.2011 : 2P/7C ORDER IN CRL OP(MD) No.13087 of 2011 Date :01/11/2011 https://hcservices.ecourts.gov.in/hcservices/