IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Bail Appl..No. 6690 of 2008() ----------------------------- CRMP.2300/2008 IN CRIME NO.498/2008 OF KOTTAYAM EAST POLICE STATION .................... PETITIONERS: -------------------- 1. JESTIN PAUL (AGED 21), PUTHUPARAMBIL HOUSE, MUTTAMBALAM P.O., KOTTAYAM. 2. JACSON PAUL (AGED 17), PUTHUPARAMBIL HOUSE, MUTTAMBALAM P.O., KOTTAYAM. BY ADV. SRI.T.RAJESH RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE] PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/11/2008, ALONG WITH B.A.NO.6635/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.Nos.6635 & 6690 of 2008 --------------------------------------------- Dated this the 14th November, 2008 O R D E R These petitions are for anticipatory bail. 2. Petitioners in B.A.No.6690/2008 are A1 and A2., Petitioner in B.A.No.6635/2008 is A3 in the crime. The alleged offences are under Sections 323, 324 and 307 read with Section 34 IPC. According to prosecution, A1 to A4 in furtherance of common intention, went in motor bikes while the defacto complainant and others were talking to each other near the house of one of the injured and assaulted them. A1 and A2 assaulted the defacto complainant with weapons and others with hands. Reapers were used for the offence. Defacto complainant sustained a fracture on ulna. Two other persons also sustained injury. 3. Learned counsel for petitioners submitted that actually, first accused was assaulted by defacto complainant and others. He sustained an injury on his head while the defacto complainant beat him with an iron rod. There was previous enmity between parties on the allegation that defacto complainant used to harass first accused's sister. On the date of BA Nos.6690 & 6635 of 2008 2 marriage of his sister, on 1.9.2008, defacto complainant and others came to the house and created problems. 4. On the next day, defacto complainant and others assaulted the first and second accused and on the basis of a statement given by the second accused herein, a crime was registered as crime no.494/08 against defacto complainant and others. The defacto complainant falsely foisted a case against accused, as a counter blast to crime no.494/08. The present crime is registered only on the next day. It is also submitted that after assaulting petitioners, defacto complainant was running away while he fell down and sustained a fracture. 5. Learned counsel for third accused submitted that third accused is absolutely innocent of the allegations made. He had come to the house of first accused in connection with the marriage. When he saw the first accused being beaten up, he went to the place for rescuing him while he was also beaten up. He has got admission for Diploma in Information Technology in Australia as evidenced by Annexures 3 and 4. The third accused's name is dragged into the array of accused only to see that the case is settled. It is pointed out that as per the First Information Statement, only two persons were involved in the BA Nos.6690 & 6635 of 2008 3 crime. The specific allegation in the first information given on the date of incident, two persons had gone in a bike and attacked him. Therefore, third accused is not involved and he may be granted anticipatory bail, it is submitted. 6. This petition is opposed. Learned public prosecutor submitted that as per the case diary all the four persons are involved in the crime. They have beaten up the defacto complainant and others. They have also sustained injuries and the wound certificates are available in the case diary which shows that the defacto complainant sustained a fracture on ulna. There is also swelling on the forearm and other injuries. Two others are also injured in the incident and one Robin had sustained contusion and lacerated wound and also abrasion and contusion. Achankunju has also sustained injury and the movement of the thump in normal range was painful. On the facts of this case, this is not a fit case to grant anticipatory bail, it is submitted. 7. On hearing both sides and on going through the case diary it appears that as per the allegations four persons were involved in the incident. The first and the second accused are the brothers and other two persons are their friends. They were BA Nos.6690 & 6635 of 2008 4 beating each other using weapons. It is also revealed from documents produced that there was previous enmity between the family of the first accused and the defacto complainant and the parties were known to each other. But, only the name of first accused is mentioned in the FIR. It can also be seen that the involvement of only two persons and one bike are mentioned in the FIR. The specific allegation is that two persons came in a motor bike and assaulted the defacto complainant. The first accused used a weapon and the other did not use any weapon. In the above circumstances, I find that anticipatory bail can be granted to the second and the third accused, but, not to the first accused whose involvement is revealed from the materials in the case diary. Use of weapon by him is also clear from the case diary. Hence, the following order is passed: (1) The request for anticipatory bail by the first accused is rejected. He shall surrender before the Investigating Officer without any delay and co-operate with investigation. Whether he surrenders or not, police will be at liberty to arrest him and proceed against him, in accordance with law. BA Nos.6690 & 6635 of 2008 5 (2) The second and the third accused shall surrender before the Investigating Officer within seven days from today and they shall co-operate with investigation. (3) In the event of their arrest, accused nos. 2 and 3 shall be released on bail on their executing bond for Rs.25,000/- each with two solvent sureties each for like sum to the satisfaction of the arresting officer on the following conditions: (i) They shall report before the Investigating Officer as and when directed. (ii) They shall not commit any offence while on bail. (iii) They shall not influence or intimidate any witness or commit any offence. B.A.No.6635/2008 is allowed. B.A.No.6690/2008 is partly allowed. K.HEMA, JUDGE csl