IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Bail Appl..No. 321 of 2009 ------------------------------------ (CRIME NO. 726/2008 OF THE SASTHAMCOTTA POLICE STATION) .............. PETITIONER/ 7TH ACCUSED: ------------------------------------------ THAMPI PILLAI, AGED 47 YEARS, S/O. VELUKUTTY PILLAI,THIRUVATHIRA, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM. BY ADV. MR.C.RAJENDRAN. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED THE SUB INSPECTOR OF POLICE, SASTHAMCOTTA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENAKULAM. BY PUBLIC PROSECUTOR MR. K.S. SIVA KUMAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/01/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 321 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 28th day of January,2009 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 143, 147, 323, 302 read with section 149 IPC. According to prosecution, petitioner (A7) along with other accused formed themselves into an unlawful assembly and assaulted brother of de facto complainant by kicking and beating and he succumbed to the injury sustained on stomach. 3. The incident occurred on 7-12-2008. Learned counsel for petitioner submitted that petitioner is absolutely innocent of the allegations made. There is no evidence to connect him with the crime. Though the crime was registered on 7-12-2008 and accused 1 to 3 were arrested on 9-12-2008, name of petitioner was not revealed even in the confession statement. Thereafter, accused 4 and 5 were arrested on 18-12-2008 and even then petitioner was not implicated, it is submitted. 4. It is only on 19-12-2008 petitioner was brought to the array of the accused. The 1st accused and petitioner are working in the same place and petitioner is also a relative of 1st accused, as per the prosecution case. If, as a matter of fact, he was actually taking part in the incident, his name would have BA 321/09 -2- been implicated without any delay. It is also submitted that petitioner has not committed any overt act, which resulted in the death. The only injury which caused to the death in the postmortem certificate, was not caused by petitioner, even going by the allegations of prosecution. Petitioner is prepared to abide by any conditions and he may be granted anticipatory bail. 5. This petition is opposed. Learned Public Prosecutor submitted that it is not correct to say that petitioner is not involved in the offence. Statement of the witnesses were recorded during investigation on the very next day and petitioner was identified as a person who had taken part in the incident. Petitioner belongs to Chavara and only very recently he had shifted his residence to the locality where the incident happened. Therefore, persons in the locality would not have been very closely acquainted with him. But, the case diary reveals his involvement. Considering the nature of offence, it may not be proper to grant anticipatory bail, it is submitted. 6. On hearing both sides,, considering the various facts stated, I am not inclined to grant anticipatory bail, especially since there is no special circumstance to invoke section 438 Cr.P.C. As pointed out by learned Public Prosecutor it is not only BA 321/09 -3- the 1st accused, but all the accused jointly kicked deceased and it may not be possible at this stage to say that petitioner did not cause any serious injury to the deceased etc. Petitioner is directed to surrender before the Magistrate court concerned or before the Investigating Officer without any delay and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.