IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Bail Appl..No. 2047 of 2008() ----------------------------- CRIME NO.242/07 OF PAVARATTY POLICE STATION CRIME NO.209/CR/EKM/07 OF CB CID, ERNAKULAM .................... PETITIONER/2ND ACCUSED --------------------------------------- RENNY MATHEW, K., AGED 20 YEARS, SON OF K.V.MATHUKUTTY, KANJIRATHINGAL HOUSE, RAJADHANI CORNER, KIZHOOR DESOM KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.P.HARRIS SRI.P.K.SAJEEV RESPONDENTS: COMPLAINANTS ------------------------- STATE OF KERALA, REPRESENTED BY S.I.OF POLICE, PAVARATTY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY D.G.P. SRI. P.G. THAMPI. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 2047 of 2008 ------------------------------------------------- Dated this the 7th day of April, 2008 ORDER Application for regular bail. The petitioner is the 2nd accused in a crime in which the offences alleged now are under Secs.302, 394 and 201 read with Sec.34 of the IPC. 2. A married woman with children whose husband was employed abroad was found missing one day. She did not return after she left the house saying that she wanted to visit a temple. A crime under the caption “woman missing” was registered. The investigation commenced. Complaining that no proper investigation is going on, the husband of the lady, who came down from his place of employment abroad, approached this Court and on directions of this Court, the CB CID took up the investigation. It was found, in the course of investigation by the CB CID, that the deceased lady was having illicit extra marital relationship with the 1st accused in this B.A. No. 2047 of 2008 -: 2 :- case. The 1st accused, it is further alleged, was engaged in extracting money from this fairly affluent woman who got remittances from her husband abroad. On that day when the lady had got down at the Kunnamkulam bus stand, the 1st accused had gone there to pick up her. She was taken in his motor-cycle as usual and thereafter they had gone to a temple also. It is now alleged that after the temple visit the lady and the 1st accused went to the flat of the 1st accused which he was allegedly using to lead his licentious life. He does not live permanently in that flat. There she was allegedly stabbed to death consequent to a dispute about her not giving money to the first accused as she used to do earlier. Demand was allegedly made by the first accused to her to part with her gold ornaments, which she refused. It was in the incident which ensued that she was allegedly stabbed to death. Leaving the dead body of the woman in that house after locking the house the first accused went away. He schemed for the clandestine disposal of the dead body. He came back with materials like petrol, palm oil, sugar etc. He allegedly attempted to requisition the services of his friends to help him to accomplish the task of clandestine disposal. One of them refused to oblige. Later the petitioner was contacted and he allegedly on the lure of getting payment B.A. No. 2047 of 2008 -: 3 :- for such act allegedly co-operated with the first accused for the clandestine disposal of the dead body. The dead body was allegedly burnt inside the flat. Burning was not complete. What remained after burning was taken in a bag and disposed of in a river by both the accused together. Investigation is in progress. The services of the Navy has been requisitioned to attempt to recover the remaining portion of the body remaining in the sack. Success has not been achieved so far. Investigation is in progress. The petitioner was arrested on 22.2.2008, the murder having allegedly taken place on 29.6.2007. The petitioner continues in custody. 3. The learned counsel for the petitioner submits that the petitioner does not deserve to continue in custody any longer. The learned counsel submits that at worst allegation against the petitioner is only that he co-operated with the first accused in the clandestine disposal of the dead body. At worst the allegation can only be of the offence punishable under Section 201 I.P.C. which is bailable and, in these circumstances, there is no justification in insisting that the petitioner must continue in custody any longer. The learned counsel submits that it is true that after the application for regular bail came up for consideration before the Sessions Judge, attempt has been made B.A. No. 2047 of 2008 -: 4 :- to make more serious allegations against the petitioner. According to the counsel, this attempt started when the petitioner did not oblige the Investigating Officers in their request to make a confession statement and turn an approver. Inasmuch as the petitioner did not oblige the Investigating Officers, they have turned against the petitioner and thereafter vexatious, false and fanciful allegations are now being raised against the petitioner. The learned counsel submits that the petitioner may now be granted regular bail subject to any appropriate condition which this Court may choose to impose. 4. The learned Director General of Prosecutions has appeared and does oppose the application. He submits that the ornaments on the dead body were all removed before they set fire to the dead body. It is in this context that an allegation is raised under Section 394 I.P.C. The learned D.G.P. further relies on the confession statement of both the accused to advance a contention that at the time when the body was set fire to the body had moved leading to the contention/argument now that complete death may not have been taken place before the body was set fire to. 5. The learned counsel for the petitioner submits that in any view of the matter dishonest removal of the ornaments from B.A. No. 2047 of 2008 -: 5 :- a dead body can attract only Sec.404 of the IPC and cannot attract any non-bailable offence and, in these circumstances, allegation under Section 394 I.P.C. is not justified. The learned counsel further submits that the allegation that the petitioner is guilty of causing death by setting fire to the body is most artificial and unacceptable. The learned counsel relies on various circumstances to urge that there was no serious allegation ever raised against the petitioner prior to the date of final argument in the application for regular bail before the learned Sessions Judge that he was in any way responsible for causing the death of the deceased. The theory that the body moved when it was set fire to is given undue importance and attempt is being made to saddle the petitioner with the liability for the death of the victim. This is not a bona fide allegation. The fact that the petitioner did not oblige the Investigating Officer in his request to turn approver and make a statement under Section 164 Cr.P.C. is the only circumstance which prompts the Investigating Officer to make such an allegation against the petitioner, contends counsel. 6. The learned counsel relies on the remand reports submitted by the Investigating Officer to the court. On all days prior to the date on which the bail application came up for B.A. No. 2047 of 2008 -: 6 :- hearing and it was realised that the petitioner is not willing to oblige the Investigating Officer by giving Section 164 statement or to turn approver the present allegations were never raised. 7. At this early stage of investigation I shall not embark on any detailed discussion on merit about the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that in the light of the contentions of both sides, I have very carefully gone through the case diary including the confession statements of accused 1 and 2. I have also gone through the remand reports submitted by the Investigating Officer at various stages so far as accused 1 and 2 are concerned. Suffice it to say that on an anxious consideration of all the relevant inputs, I find merit in the submissions of the learned counsel for the petitioner and I am satisfied that the petitioner, who has remained in custody from 22.2.2008, can now be enlarged on bail subject to appropriate and strict conditions, which shall facilitate a fair, efficient and expeditious investigation. 8. In the result: (1) This application is allowed. (2) The petitioner shall be released on bail on the following terms and conditions. B.A. No. 2047 of 2008 -: 7 :- (a) The petitioner shall execute a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to be satisfaction of the learned Magistrate. (b) He shall make himself available for interrogation before the Investigating Officer on all Mondays between 10 a.m. and 12 noon until further orders. (c) The petitioner shall not enter the Sessions Division of Trichur until further orders without the prior permission of the learned Magistrate. (d) The petitioner shall furnish to the Investigating Officer the address of his place of residence outside the Sessions Division of Trichur within a period of 7 days from the date of his release and thereafter keep the Investigating Officer informed of any further change in such address. (R. BASANT, JUDGE) Nan/