IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 Bail Appl..No. 2785 of 2010() ----------------------------------------- CRIME NO.258/2010 OF KONNY POLICE STATION, PATHANAMTHITTA DIST. .............. PETITIONER: ------------------- SHIBU @ SHAHUL IBRAHIM, INSHA MANZIL, KARIMPLACKAL, KONNI PO, PATHANAMTHITTA. BY ADV. SRI.C.S.MANILAL, SRI.S.NIDHEESH. RESPONDENT(S): -------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.V. TEKCHAND. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/06/2010, ALONG WITH BA NO.2786 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. K. HEMA, J. --------------------------- B.A. Nos. 2785 & 2786 of 2010 ------------------------------------ Dated this the 16th day of June, 2010 O R D E R These petitions are for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 323 and 324 read with Section 149 of the Indian Penal Code. According to prosecution, petitioners (A3 and A4) formed into an unlawful assembly along with 5 others armed with weapons like sword stick and stick assaulted de facto complainant with intention to commit culpable homicide and thereby committed various offences. 3. Petitioners are accused nos. 3 and 4. Learned counsel for petitioners submitted that fourth accused was falsely implicated in this case only because first accused used to take his car. Fourth accused was under treatment for Chicken Pox and fever, with effect from 01.04.2010 to 16.04.2010, as evidenced by medical certificate Annexure-I issued by a Civil Surgeon attached to the Primary Health Centre. The incident allegedly happened on 04.04.2010, while the petitioner was under treatment. B.A. Nos. 2785 & 2786 of 2010 2 4. It is also submitted by petitioners' counsel that originally offence under Section 308 was not included. But, later the offence was altered to section 308 of the Indian Penal Code, after recording a statement from the de facto complainant. There are material contradictions in the F.I. Statement and subsequent statement given by the de facto complainant. Though in the F.I. Statement, it is stated that second accused slapped de facto complainant, at the time of subsequent statement recorded on 05.04.2010, it was stated by de facto complainant that second accused was not present at the scene. Instead, another person is implicated in the place of the person who was shown as second accused. 5. It is also submitted that though as per the F.I. Statement, accused nos. 3 and 4 allegedly used sticks, in the subsequent statement, it is stated that hockey sticks were used. As per the F.I. Statement, a sword stick was used by first accused, but in the subsequent statement it is mentioned that the sword stick was only aimed at the throat and by its contact, B.A. Nos. 2785 & 2786 of 2010 3 throat and leg were injured. But there is no injury on the throat. 6. This petition is opposed. Learned Public Prosecutor submitted that de facto complainant was injured in the incident and he was admitted in the hospital on the very same day. He has sustained lacerated wounds on considerable measurement. The recovery of the weapons allegedly used by petitioners is not effected. Therefore, petitioners are needed for custodial interrogation, it is submitted. 7. On hearing both sides, I have gone though the case diary and the documents produced, in the light of the arguments advanced. I am persuaded to rely upon Annexure A1 medical certificate issued by a Civil Surgeon attached to the Primary Health Centre, in which, it is stated that petitioner was under treatment for chicken pox etc. from 01.04.2010 to 16.04.2010. The incident is alleged to have happened from 04.04.2010. 8. I am also satisfied that there are some contradictions in the F.I. Statement and the statement given by the de facto complainant on the very next day. At the same time, it is clear B.A. Nos. 2785 & 2786 of 2010 4 that de facto complainant sustained certain injuries but those are lacerated wounds and not on the arm, though sword stick is used no incised injury is caused. Hence, I find that petitioner has a strong and arguable case regarding involvement of offence under Section 308 of the Indian Penal Code. 9. However, hockey stick was allegedly used by third accused, and it is to be recovered. Interrogation of the accused concerned is also necessary for effecting recovery, anticipatory bail can be granted to the 4th accused, but I am not inclined to grant anticipatory bail to third accused. No grounds are made to grant anticipatory bail to accused no.3. 10. In such circumstances, in the light of Anenxure-I, the following order is passed: 1. Fourth accused shall surrender before the Magistrate Court concerned within 7 days from today and on such surrender, he shall be released on bail on his executing a bond for Rs. 10,000/- with two solvent sureties B.A. Nos. 2785 & 2786 of 2010 5 each for the like sum to the satisfaction of the Magistrate Court concerned on condition that he will co-operate with the investigation and he will report before the investigating officer as and when directed. 2. Third accused shall surrender before the investigating officer within 7 days from today and in the event of his arrest, offence under Section 308 of the Indian Penal Code will be treated, as not included, for the purpose of bail. These petitions are disposed of accordingly. K. HEMA, JUDGE ln