IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Bail Appl..No. 4020 of 2010() ----------------------------- RC 1/SCBI/SCB/CHENNAI (S): PETITIONER/ACCUSED NO.3 ------------------------------------------- SUNIL DASAN, S/O.NARAYANAN, RESIDING AT THANDANPARAMBIL, ELINJIPRA P.O. CHALAKUDI, THRISSUR DISTRICT. BY ADV. SRI.GEO PAUL SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.M.B.SANDEEP SRI.K.V.REJANISH SMT.P.T.RAZEENA SRI.SANU MATHEW RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY DY.S.P OF CBI/SCB/CHENNAI BY PROSECUTOR CBI, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/07/2010, ALONG WITH BA NO. 4166 OF 2010 BA NO. 4138 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Bail Application Nos.4020, 4138 & 4166 of 2010 ---------------------------------------------- Dated 29th July, 2010. O R D E R These petitions are for bail. 2. The alleged offences are under Sections 302 and 397 of the Indian Penal Code. Petitioners are accused nos.1, 3 and 4. According to prosecution, the two deceased persons in this case (son-in-law of defacto complainant, who was the owner of a jeep, and its driver) were enticed along with their jeep from Marayoor to Udumalpet, by accused nos.2 and 3 in the afternoon of 18.1.2002. Thereafter, they were murdered by certain other accused, on the same night. Their heads were amputated and their bodies and heads were left on the railway track, to make it appear that it was an accident. The dead bodies were found on 19.1.2002 at the railway track, which lies 9 Kms. away from Udumalpet, at a place called Anthiyoor. A crime was registered on 19.1.2002 under Section 174 of Criminal Procedure Code for unnatural death. The investigation was transferred to the C.B.C.I.D. and thereafter, offences under Sections 302 and 397 of the Indian Penal Code were included. Later the C.B.I. S.C.B., BA NO. 4020/10 & connected cases 2 Chennai took up investigation. 3. Learned counsel for third accused submitted that there is absolutely no evidence to connect third accused with the crime. The accused were not furnished with any details of the evidence collected against them, while they were arrested. The full particulars of the offences were not stated to the accused at the time of arrest. At the time when they were remanded to police custody also, nothing was stated in the affidavit about the history of the investigation, as required under Rule 20 of the Criminal Rules of Practice. It is also submitted that the particulars required to be furnished under Section 167(1) of the Cr.P.C. are also not furnished in this case. 4. It is also submitted by the learned counsel for the third accused that there is only one witness, who had stated about the involvement of third accused in the crime and his statement only reveals that the second and third accused were found in the company of the deceased on 18.1.2002, in the evening. That witness has no case that accused were known to him previously. Though the incident happened on 18.1.2002, the test identification parade was conducted after eight years, in 2010, after the arrest of accused. BA NO. 4020/10 & connected cases 3 5. It is highly improbable that the witnesses will be in a position to identify the strangers, after such a long time. The third accused was compelled to be made an approver by the C.B.I. but he was not prepared to oblige and hence, he is made an accused, without any basis, it is submitted. The third accused belongs to Thrissur and he is a permanent resident of Thrissur. He has nothing to do with any business in Marayoor, from where deceased in this case are stated to be enticed by third accused. The third accused has no criminal background, it is submitted. 6. Learned counsel for third accused also submitted that even if the entire prosecution case is accepted, the limited incriminating evidence against third accused is that he had enticed the deceased in the jeep from Marayoor to Udumalpet and deceased was last seen in the company of third and second accused. The prosecution itself has no case that third accused had taken part in the murder. Therefore, the offence under Section 302 of the Indian Penal Code will not be attracted against third accused. He is in custody for the past 74 days. He was given in police custody and he was thoroughly interrogated. The test identification parade is over. His detention is not necessary for the purpose of investigation. BA NO. 4020/10 & connected cases 4 7. It is also submitted that third accused was admitted in the hospital on 23.1.2002 for implant removal at left ankle. He was discharged only on 29.1.2002. It is highly unlikely that such a person with implant would go from Thrissur to Marayoor, a few days prior to the implant removal and will be able to act in the manner alleged by the prosecution, it is submitted. For all these reasons, third accused requests for bail. 8. Learned counsel for first and fourth accused argued that despite eight years' investigation, no materials are collected against first accused even now. Despite the questioning of first accused and various other accused, there is no specific allegation about the role of first accused in the crime. The physical condition of the first accused is bad. Admittedly, he has fracture on both legs and he is not even able to walk. The accident occurred on 18.2.2010 and CBI itself has stated that he is not able to fold his legs. 9. As far as 4th accused is concerned, he is in custody for the past 70 days. The mere allegation is that he was a close associate of the first accused. Except such allegation, the role of first and fourth accused in the offence is not clarified in any of the statements filed by the CBI, it is submitted. Hence, both of them BA NO. 4020/10 & connected cases 5 may be granted bail, it is submitted. 10. This petition is strongly opposed by the learned Standing Counsel for the CBI. It is strongly argued that murder was committed in utmost secrecy. The persons involved in the crime are hardened criminals, who are Sandalwood smugglers who committed various other crimes. The 4th accused is convicted in a murder case and another case, involving offence under Section 376 IPC. He is also involved in various other crimes. He is a close associate of first accused, who is also a Sandalwood smuggler, but, because of his political influence, he was not arrested in many of the crimes, in which he has direct involvement. 11. It is also submitted that the incident happened because of some transaction in connection with Sandalwood smuggling, in which defacto complainant, (who is the mother-in- law of deceased Alagar) is also involved. The Sandalwood smugglers and the criminal gang, who are working under the first accused are reasonably suspected to have committed the offences. Because of the threat from first accused's criminal gang, the witnesses are scared to disclose the relevant facts relating to the case and the investigation is facing a very difficult BA NO. 4020/10 & connected cases 6 situation. Many witnesses have stated that they are threatened and they are not disclosing full facts to the CBI. 12. It was with great difficulty that one of the witnesses gained courage to state that the second and third accused were found in the company of the deceased Alagar and George, on 18.1.2002, before their death. Those persons were seen last in the company of second and third accused. This statement was given by the witness, in the early stage of investigation itself. In the beginning, he had told the police that he had left the bus stand by 5 p.m., but later, from the statement of various witnesses, it was revealed that the said witness would be having direct knowledge about some incriminating material. Hence he was interrogated again and it was revealed that he saw two persons in the company of deceased Alagar and George. 13. He also stated to the police that he would be able to identify the persons, if he saw them. He had not disclosed this fact earlier because of fear. From the statement of the relevant witness, it is clear that he did not have a mere glimpse of the accused, but he had opportunity to identify them, since the vehicle had a starting trouble and they were found pushing the vehicle. Therefore, it cannot be said that the belated test BA NO. 4020/10 & connected cases 7 identification parade is unacceptable, it is submitted. Learned Standing Counsel for the CBI argued that so far as petitioners are concerned, there are sufficient materials in the case diary to incriminate them with the crime committed in this case. Several witnesses have stated that they are scared of the first accused, who is the head of a quotation gang. One of the witnesses stated that first accused had met him and told him not to reveal anything about the jeep to the CBI for his own safety. 14. The statement of the same witness also reveals that prior to such statement made by first accused, he was taken in a jeep by some persons, stating that he was wanted by first accused. Though the first accused was not present in the jeep, the said gang had intimidated the witness stating that he shall not utter any word to the police regarding the jeep. It was subsequent to this that he talked to the first accused regarding the threat while first accused warned him not to state anything about the jeep to anybody. It is also revealed from the case diary that first accused had told another person, pointing his finger to the witness that he is a witness in “our case”, referring to this case. 15. If the petitioners are released on bail, it is likely BA NO. 4020/10 & connected cases 8 that the investigation will be adversely affected, since they will threaten the witnesses and it will be difficult to collect more evidence relating to the offence committed. It is also submitted that there are materials in the case diary to reveal the involvement of the persons, who have actually committed the offence of murder and they are yet to be arrested. In spite of the efforts taken by the CBI, they could not be apprehended so far. If petitioners are released on bail, it will be still more difficult to arrest those persons. In the peculiar facts and circumstances of this case, the further detention of petitioners is required for an effective investigation, it is submitted. 16. It is also submitted that first accused was having fracture to both legs at the time of arrest. But, according to CBI officers, first accused was found driving his Indica car despite the fracture. Even the number of the car was noted and reported. It is true that in the arrest memo, CBI reported that first accused is not in a position to bend his leg, but it was not an impediment even to drive the vehicle, it is submitted. 17. On hearing both sides and on considering the various facts and circumstances of the case discussed and the facts revealed from the case diary, I find that it is not fit to grant BA NO. 4020/10 & connected cases 9 bail to petitioners at this stage. As pointed out by the learned Standing Counsel, the case diary prima facie reveals some incriminating materials against petitioners, with respect to their involvement in the offences. It is also to be borne in mind that the accused stated to the CBI that they are aware of their right of silence as accused and they are legally advised to keep silence and hence they failed to disclose several facts which are in their special knowledge. Several accused are yet to be arrested. In such circumstance, in a case of this nature, I am not inclined to grant bail to petitioners at this stage, since it is likely to affect the investigation adversely. Petitions are dismissed. K.HEMA, JUDGE. tgs