IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Bail Appl..No. 5934 of 2008() ----------------------------- CRIME NO. 432/2008 OF KOTTAKKAL POLICE STATION PETITIONERS/ACCUSED --------------------------------------- 1. AHAMMEDKUTTY @ KUNHAVA, S/O.PULIKKAL MUHAMMED HAJI, PULIKKAL HOUSE, PADINJAKKARA, KOTTAKKAL, MALAPPURAM DISTRICT. 2. MUHAMMED HAJI, S/O.AHAMMEDKUTTY, PULIKKAL HOUSE, PADINJAKKARA, KOTTAKKAL, MALAPPURAM DISTRICT. 3. HASSAN HAJI, S/O.AHAMMEDKUTTY, PULIKKAL HOUSE, KUTTIPURAM, KOTTAKKAL, MALAPPURAM DISTRICT. 4. MOIDU, S/O.AHAMMEDKUTTY HAJI, PULIKKAL HOUSE, KUTTIPURAM, KOTTAKKAL, MALAPPURAM DISTRICT. 5. MUHAMMED FAZIL, S/O.MOOSA, PULIKKAL HOUSE, PADINJAKKARA, KOTTAKKAL, MALAPPURAM DISTRICT. 6. AHAMMEDKUTTY @ KUNHU, S/O.MOIDU, PULIKKAL HOUSE, KUTTIPURAM, KOTTAKAL, MALAPPURAM DISTRICT. 7. MUHAMMED SHAMEEN, S/O.AHAMMEDKUTTY, PULIKKAL HOUSE, PADINJAKKARA, KOTTAKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI. SRI.M.S.BREEZ SRI.K.M.SATHYANATHA MENON FOR DEFACTO COMPLAINANT THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 5934 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 341, 323, 324, 506(i), 307 read with section 34 IPC. Petitioners are accused 3 to 5 and 7 to 10. According to prosecution, petitioners along with other accused in furtherance of common intention wrongfully restrained de facto complainant and various others, criminally intimidated them and assaulted them with intention to commit murder. De facto complainant and various other persons were injured by stabbing with knives and beating with stick. Crime no.432/2008 was registered under the said sections. The incident occurred on 29-8-2008 at the premises of a mosque. 3. Learned counsel for petitioners submitted that accused in this case were assaulted by de facto complainant and others and two persons died on the same day. Both of them are brothers. One of their brothers lodged a complaint and based on it, Cr. no.431/2008 was registered under sections 143, 147, 148, 341, 324, 302 read with section 149 IPC against de facto complainant and various others. Knives etc. were used for the offence. It was also submitted that the persons who are shown as accused 1 and 2 in this case died on the same day. In such BA 5934 /08 -2- circumstances, this case is foisted against petitioners as a counter blast, it is submitted. 4. It is also submitted that the 4th accused in this case sustained serious injuries and he had to undergo surgery also. He was in the hospital for a period of one month. He is aged 85 years and he had witnessed his two sons being murdered by stabbing with knives etc. In spite of this unfortunate incident, it will be injustice, if petitioners were to undergo detention in prison, by refusal of anticipatory bail, it is submitted. Almost all the male members of the family were in the hospital as a result of the incident and two of them died also. It is also pointed out that two brothers of 4th accused and his grandchildren are also made accused in this case, with a view to see that all of them are kept behind the jail, it is submitted. 5. Learned counsel for petitioners also submitted that a partisan attitude is taken by police in connection with these two crimes. Though two persons died and entire family members are injured in the incident because of the influence of the opposite side, de facto complainant in the case was deleted from the array of accused in the main case, though specific allegations are made against him. It is also submitted that though 4th accused in this BA 5934 /08 -3- case sustained very serious stab wound and he was in the hospital for a very long period, offence under section 307 IPC was not included in Crime no.431/2008, whereas in this case section 307 IPC is included. Petitioners are likely to be harassed in the case, if anticipatory bail is refused, it is submitted. 6. It is also pointed out that there were only four persons in the F.I.R., out of whom two persons died and now several persons, who belong to the family of 4th accused, his sons and his grandchildren are included in the array of accused on a subsequent thought. It is also submitted that the incident happened while deceased was attacked by the opposite side on account of some enmity regarding the dispute with respect to the administration of mosque committee. Petitioners family was in administration of the mosque committee for a very long period and this was not to the liking of the opposite side and hence they were attacked at the time of prayer in the mosque on a Friday when entire family members expected to assemble for prayer in the mosque. The fact that two persons died on the same day and various others were seriously injured from the side of petitioners itself would show that petitioners were attacked by opposite side and they acted in an aggressive manner by using weapons. BA 5934 /08 -4- Therefore, anticipatory bail may be granted, failing which petitioners will suffer irreparable injury and loss and they will be forced to under unwanted detention in prison, it is submitted. 7. Learned Public Prosecutor and learned counsel for de facto complainant were heard in detail. Learned counsel for de facto complainant submitted that in Crime no.431/2008 almost all the accused are in jail for the past 82 days, etc., whereas petitioners who are involved in the same incident who were responsible in inflicting serious injuries on various persons are now at large. This was done due to the fact that during pendency of petition for anticipatory bail filed by them an undertaking was recorded from learned Public Prosecutor that petitioners herein will not be arrested. 8. The nature of injuries sustained by various persons in this case will clearly show that there was a motivated attack by petitioners and others on de facto complainant, it is submitted. The name of de facto complainant was deleted by police from the array of accused in Cr.no.431/2008 because he had only thrown a bucket during the course of incident and there is no allegation by any person that he had assaulted any of persons. His name was deleted for best reasons, since it was revealed on investigation BA 5934 /08 -5- that he is not involved in the crime, it is submitted. 9. It is also submitted that there is a clear case under section 307 IPC, since various persons sustained serious injuries as revealed from various wound certificates issued to the injured. De facto complainant himself sustained five incised wounds and a fracture in the incident. He sustained penetrating spinal cod injury with paraparcis and fracture to the vertebra. It was noted in the wound certificate that there was injury to spinal cod at cervico and thoracic junction. 10. Learned counsel for de facto complainant brought my attention to various wound certificates and submitted that various persons also sustained deep penetrating wound. One Unneerankutty, aged 45 years sustained a penetrating wound of 4 x 2 cm. on the chest. He had also sustained another penetrating wound on the left iliac crest and at the renal angle. He also sustained lacerated injuries. Various injuries sustained by him are noted in the wound certificate which are of serious in nature. One Mohamed Haji sustained a stab injury 7 x 2 cm. in size on the abdomen, just below umbilicus. He was also taken for emergency haprotomy and in the operative findings a deep penetrating wound was noted in the right lower umbitical quadrant 7 x 3 BA 5934 /08 -6- c.m. ). Therefore, it cannot be said that there was no attempt to commit murder and that no offence under section307 IPC is not made out. 11. It is also submitted that a car, in which accused were removed to hospital. on inspection by police, weapons were found and a case was also registered in respect of the said incident. As per the allegations in this case, petitioners are aggressors and they assaulted de facto complainant and others and inflicted stab wounds and hence, petitioners are not entitled to any benefit under any of the provisions. In an offence of this nature, it is not proper to grant anticipatory bail, it is submitted. 12. Learned Public Prosecutor strongly opposed this petition and submitted that two factions assaulted each other using knives, stick etc., that too in the premises of a mosque and in the incident two persons died and various other persons sustained serious injuries. It cannot be proper to grant anticipatory bail, it is submitted. Weapons used for the offence by petitioners are to be recovered and if anticipatory bail is granted, it may not be possible to effect recovery. It is also submitted that various persons are injured in this case and wound certificates are available in the case diary as many as eight persons are injured in BA 5934 /08 -7- the incident, out of which majority have sustained serious injuries on the fatal part of the body by use of knives. ((1) Beeran, S/o. Enus; (2) Alavi, S/o.Saidalavi; (3) Kabeer, S/o. Saidalavi; (4) Unneerankutty; (5) Moideenkutty, S/o.Enus; (6)Saidalavi, S/o.Enu; (7) Rayinkutty, S/o.Hamza; (8) Yousuf, S/o.Kunchali Haji). 13. Learned Public Prosecutor also submitted that the case diary reveals that two groups attacked each other using weapons like knives etc. and many of the persons are injured at the premises of a mosque and it is not a fit case to grant anticipatory bail. This is particularly so, since the investigation is conducted into the allegations made and at this stage it is not possible to say who are the aggressor and who can be extended the benefit of self defence, if any. As per the case diary, it reveals that there were clashes between two groups at the premises of a mosque and both sides sustained injuries. It is also submitted that if anticipatory bail is granted to petitioners, it is likely that there will be more clashes. 14. Learned counsel for petitioners submitted that we are at the stage of bail and the question as to who is the aggressor and whether petitioners are entitled to self defence etc. may not arose now. Such facts can be considered only at the time of trial BA 5934 /08 -8- and not at this stage, it is submitted. 15. On hearing both sides and on consideration of rival contentions in detail and also the case diary, I find that several persons sustained penetrating wounds and incised wounds on prominent parts of the body. The incident occurred at the premises of a mosque. It is clear that weapons were used against the injured by the assailants. Though two persons from the petitioners' side died and their father also sustained serious injury and entire family members are arrayed as accused in this case. 16. From the materials available in the case diary, it is not be possible for this Court to conclude at this stage that offence under section 307 IPC is not committed. However, I find that the 4th accused is aged 85 years and he lost two of his sons at the hands of the assailants and the attack was witnessed by him. He himself suffered a serious injury and he had to undergo a surgery. He was in the hospital for a period of one month. Though an allegation is made in First Information Statement that some persons including 4th accused beat with stick, in the statement recorded under section 161 Cr.P.C. allegation against 4th accused is absent. He has no case that 4th accused beat him or committed any act against him. In the above peculiar circumstances, I am BA 5934 /08 -9- satisfied that anticipatory bail can be granted to 4th accused. But I do not find it fit to grant anticipatory bail to other accused. Considering the nature of offence committed and the nature of investigation, which is required, includes the recovery of the alleged weapons used for the offence, I do not think it fit to grant anticipatory bail to other accused. 17. Hence, the following order is passed:- (1) The 4th accused shall surrender before Magistrate court concerned within seven days from today and he shall be released on bail, on his executing a bond for Rs. 25,000/- with two solvent sureties each, for the like amount, to the satisfaction of the learned Magistrate, on the following conditions:- i) He shall co-operate with the investigation and he shall report before the Investigating Officer as and when directed. ii) He shall not intimidate or influence any witness or tamper with evidence. BA 5934 /08 -10- (2) Prayer for anticipatory bail by other accused is rejected. This petition is partly allowed. K.HEMA, JUDGE. mn.