IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Bail Appl..No. 7395 of 2009 CRIME NO.744 OF 2009 OF CHENGANNUR POLICE STATION, ALAPPUZHA PETITIONER : ACCUSED: ---------------------------- SUMESH CHANDRAN, AGED 19 YEARS, MADAVANA COLONY, PANDANADU NORTH P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.K.MADHUSOODHANAN NAIR RESPONDENT: --------------- STATE OF KERALA REPRESENTED CIRCLE INSPECTOR OF POLICE, CHENGANOOR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/02/2010, ALONG WITH BA NO.7472 OF 2009, THE COURT ON 17/02/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.7395 & 7472 OF 2009 ------------------------------------------------------ Dated this the 17th day of February, 2010 O R D E R These are applications for anticipatory bail under Section 438 of the Code of Criminal Procedure. B.A.No.7395 of 2009 is filed by accused No.4 (Sumesh Chandran) in Crime No.744 of 2009 of Chengannur Police Station. B.A.No.7472 of 2009 is filed by accused No.5 (Rajesh Raj) in the aforesaid crime. 2. The offence alleged against the petitioners are under Sections 143, 147, 323, 341 and 302 read with Section 149 of the Indian Penal Code. 3. Accused No.4 had filed B.A.No.6425 of 2009 under Section 438 of the Code of Criminal Procedure. That Bail Application was dismissed as per the order dated 17.11.2009. Accused No.5 had filed B.A.No.6787 of 2009. That Bail Application was withdrawn by him after the dismissal of B.A.No.6425 of 2009 filed by accused No.4. B.A. NOS.7395 & 7472 OF 2009 :: 2 :: 4. Accused Nos.4 and 5 have approached this Court again by filing these Bail Applications under Section 438 of the Code of Criminal Procedure. 5. The prosecution case is that on 28.9.2009 at about 9.30 PM, the accused persons formed themselves into an unlawful assembly and attacked one Moncy. He was kicked and beaten brutally by the accused persons. Moncy was admitted in the hospital. Later, he died on the same night. The postmortem certificate reveals that the death was due to the blunt injury sustained by the victim on the abdomen. 6. The learned counsel for the petitioners submitted the following: (1) The overt act in respect of the injury caused which led to the death of the deceased was done by accused No.1; (2) The overt acts alleged against accused Nos.4 and 5 are that they had beaten the deceased and punched him; (3) Nineteen injuries were noted on the body of the deceased. None of them was fatal in the ordinary course of nature; (4) The incident occurred near a public road; (5) The motive for the offence was the altercation which occurred on the previous night between the deceased on the one B.A. NOS.7395 & 7472 OF 2009 :: 3 :: hand and accused No.1 and Jomon on the other in a bar hotel; (6) Accused Nos.4 and 5 are students. Accused No.4 had appeared for the Entrance Examination for Engineering. Accused No.5 is studying for ITI Diploma Course; (7) The First Information Statement does not mention the names of accused Nos.4 and 5; (8) In the incident on the previous day, accused Nos.4 and 5 were not admittedly parties; and (9) The investigation is practically over. 7. The learned Public Prosecutor submitted the following: (a) Accused Nos.4 and 5 are close friends of accused Nos.1 and 2; (b) The First Information Statement was given by the younger brother of the deceased. He is not an eye witness to the incident. Therefore non mention of the names of the petitioners in the First Information Statement is not very material; (c) There was common object on the part of the accused persons to commit the offence; (d) The deceased was on his way to his house. He was alone; (e) The offence was committed after pre-meditation; (f) After the incident, accused Nos.4 and 5 went along with accused Nos.1 and 6 in an autorickshaw to a bar hotel and they had consumed alcohol; (g) There is evidence to indicate that after the incident, accused Nos.1, 4, 5 and 6 travelled together and they were found together; (h) B.A. NOS.7395 & 7472 OF 2009 :: 4 :: There is evidence to indicate that, at the scene of occurrence, accused Nos.4 and 5 were found along with the other accused; (i) There are eye witnesses to the incident. They have spoken about the complicity of accused Nos.4 and 5; (j) After the arrest of accused No.1, he had made a disclosure statement. 8. While dismissing B.A.No.6425 of 2009, I had mentioned in the order dated 17.11.2009 that I was not inclined to accept the contention of accused No.4 (petitioner therein) that there are no materials to connect accused No.4 with the offence. It was also held that, prima facie, there are materials to implicate accused No.4 in the offence. The contentions raised were not dealt with in detail to avoid prejudice to the accused. While disposing of these Bail Applications also, I am refraining from making any observation on the merits of the case, since it would be premature to make such observations and it would cause prejudice either to the prosecution or to the defence. 9. I have carefully perused the case diary. Prima facie, I am satisfied that there are materials to indicate the involvement of accused Nos.4 and 5 in the offence. The question whether there is B.A. NOS.7395 & 7472 OF 2009 :: 5 :: evidence to arrive at the conclusion that accused Nos.4 and 5 are guilty of the offence, is a matter to be considered at the time of trial. 10. That the petitioners are students is not a ground to grant anticipatory bail in their favour. I am of the view that the petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. The investigation is not over. Custodial interrogation of accused Nos.4 and 5 may be required during investigation. If anticipatory bail is granted to them, it would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/