IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Bail Appl..No. 5832 of 2009 CRIME NO.197 OF 2009 OF NEDUMUDY POLICE STATION, ALLEPPEY DISTRICT PETITIONERS/ACCUSED 7,9,10 &11 -------------------------------------------------- 1. SUNIL @ SUNI,AGED 19 YEARS, S/O. SURENDRAN, SOORAJ BHAVAN, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK PATHANAMTHITTA DISTRICT. 2. ANEESH KUMAR, AGED 23 YEARS, S/O.GOPALAKRISHNAN, VADAKKOTTIL MEVASHOM HOUSE, KUNNAMTHANAM VILLAGE, MALLAPPALLY, PATHANAMTHITTA. 3. BINOY MARKOSE @ BINOY,S/O.MARKOSE, PALLIKKAL HOUSE,VALLAMALA BHAGOM, WARD NO.17, KUNNAMTHANAM PANCHAYATH, MALLAPPALLY. 4. JAIN JOSE @ JAIN, S/O.JOSE, CHAKKALAKUZHIYIL, WARD NO.17, MEENADOM PANCHAYATH, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT: COMPLAINANT --------------------------- THE DEPUTY SUPERINTENDANT OF POLICE ALAPPUZHA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/10/2009, ALONGWITH B.A.NO.6088 OF 2009, THE COURT ON 27/10/2009, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.5832 & 6088 OF 2009 ------------------------------------------------------ Dated this the 27th day of October, 2009 O R D E R Bail Application No.5832 of 2009 is filed by Sunil alias Suni (accused No.7), Aneesh Kumar (accused No.9), Binoy Markose alias Binoy (accused No.10) and Jain Jose alias Jain (accused No.11) in Crime No.197 of 2009 of Nedumudy Police Station. Bail Application No.6088 of 2009 is filed by Shino Paul (Accused NO.4) and Akash Sasidharan alias Rajesh (accused No.5) in the aforesaid Crime. The Bail Applications are under Section 439 of the Code of Criminal Procedure). 2. The offences alleged against the accused persons, 25 in number, are under Sections 143, 147, 148, 324, 302, 120-B, 201 and 212 of the Indian Penal Code and Section 5 of the Explosive Substances Act. 3. The case is popularly known as Paul Muthoot murder case. It is said that visual media and print media in the State had closely B.A. NOS.5832 & 6088 OF 2009 :: 2 :: covered the various incidents of the case, the various stages of investigation, and even they had interviewed some witnesses. Some have acclaimed the media for the job they had undertaken while others have criticised the media for having indulged in what is called “media trial”. It is stated that Sri.Vincent M. Paul, I.G. of Police, appeared in the visual media and put forward “the story of the prosecution”, even before getting sufficient materials for arriving at any conclusion. It is submitted by the counsel for the petitioners that great prejudice was caused to the petitioners and the other accused persons as a result of this. It is also submitted that the investigation is being proceeded with to fit in with that story which was prematurely put forward by the I.G. of Police. 4. It is not necessary to make any finding or observation on the above aspects, while disposing of the Bail Applications. The court is not very much concerned about what was reported by the newspapers and the visual media. The court is guided by only the facts of the case. Judges and judicial officers are expected, and they are trained by experience and otherwise, to eschew what is irrelevant while considering a case on the merits. B.A. NOS.5832 & 6088 OF 2009 :: 3 :: 5. Paul M. George, who is also known as Paul Muthoot, a young businessman aged 32 years was brutally murdered at about 0.15 hours on 22-8-2009 at a place two Kilometres east of Pallathuruthy bridge in Alapuzha – Changanassery road. Paul M. George was brought dead at about 00.50 hours on 22-8-2009 at the Medical College Hospital, Alapuzha by his driver Shibu Thomas. 6. Shibu Thomas laid the First Information Statement before the Sub Inspector of Police, Nedumudi Police Station at 03.00 hours on 22-8-2009. In the F.I.Statement, Shibu Thomas stated the following: He is working as driver at the Cardomom County Hotel, Thekkady, owned by Muthoot Group. At present, he is working as driver at the office of the Muthoot Group in Kochi. Paul M. George was the Executive Director of Muthoot Group. On 21-8-2009, three friends of Paul M.George came in a Ford Endeavour car bearing registration No. KL 01 AS-8407 to meet Paul. Paul M. George and his friends proceeded to the resort of Muthoot Group at Mararikkulam in the Ford Endeavour car referred to above and the Scorpio car belonging to Paul M. George. After taking food and drinks, they proceeded to Pampa Villa Resort of Muthoot Group at Chambakkulam, at about 22.30 hours on 21-8-2009. While B.A. NOS.5832 & 6088 OF 2009 :: 4 :: proceeding from Mararikulam, Paul M. George drove the Ford Edeavour car and the driver Shibu Thomas drove the Scorpio car. Two of the friends of Paul M.George boarded the Ford Endeavour car while the other travelled in the Scorpio car. Paul directed Shibu Thomas to collect the keys of the rooms in Pampa Villa Resorts from the office of Muthoot Backwater Cruise at Pallathuruthy. As directed, Shibu Thomas went there to collect the keys. He was told that the keys were already taken to Pampa Villa Resort. While proceeding from Pallathuruthy to Chambakkulam, Shibu Thomas saw the Ford Endeavour car driven by Paul M. George, parked on the side of the road at Ponga Gurumandiram Junction, at a distance of about 2 KMs east of Pallathuruthy Bridge. He saw about 10 to 15 persons near the car. He also saw a Tempo Traveller at the place, parked facing Alapuzha side. On seeing the car driven by Shibu Thomas, those persons hurriedly got into the Tempo Traveller and drove to Alapuzha side. Shibu Thomas saw Paul M. George lying there, drenched in blood. Paul M. George was taken in the Scorpio car to the Medical College Hospital, Alapuzha. One of the friends of Paul M. George, who was found seriously injured, was also taken in the Scorpio car. Two of the friends of Paul M. George came behind in the Ford Endeavour car. They overtook the Scorpio car. However, B.A. NOS.5832 & 6088 OF 2009 :: 5 :: instead of going to Medical College Hospital, the two friends of Paul drove the Ford Endeavour car to Thiruvananthapuram side. Shibu Thomas brought Paul M. George and the other injured to the Medical College Hospital. It was declared that Paul M. George was dead. 7. The other injured person who was brought to the hospital by Shibu Thomas was Praveen alias Manu. According to the prosecution, investigation revealed that the three friends of Paul who came to see him were Om Prakash (Accused No.15), Rajesh (Accused No.16) and Praveen alias Manu. It is stated that only Praveen alias Manu travelled alongwith Paul in the Ford Endeavour car while proceeding from Mararikulam. The other two friends of Paul, namely, Om Prakash and Rajesh (Puthanpalam Rajesh) travelled in the Scorpio car. 8. The statement of Praveen alias Manu was recorded under Section 164 of the Code of Criminal Procedure, before the Judicial Magistrate of the First Class II, Alapuzha. 9. The prosecution alleges that while Paul was driving the Ford Endeavour car, it hit on a motor bike. Paul did not stop the car. B.A. NOS.5832 & 6088 OF 2009 :: 6 :: A tempo traveller and other vehicles were parked on the side of the road at that place. After driving the car for about two kilometres, Paul stopped the car and inspected the car to find out the damage caused to the car as a result of the accident. At that time, several persons came there in a tempo traveller and questioned Paul as to why he did not stop the vehicle. They attacked Paul. Satheeshkumar alias Kari Satheesh (Accused No.12) stabbed Paul several times. Sathar (Accused No.2) inflicted a cut injury on Praveen alias Manu with a sword. Praveen alias Manu ran away and fell into the paddy field. Thereafter, Shibu Thomas came there in the Scorpio car and Paul and Praveen alias Manu were taken to the hospital. 10. The learned Director General of Prosecution submitted that the investigation also revealed the following facts. Accused No.22, Abi, approached the first accused Jayachandran, the leader of a goonda gang operating at Changanassery. Abi wanted the help of the goonda gang to deal with his rivals, Shameer and Nizar. Jayachandran agreed to provide help. He arranged his gang. Abi and his friends came to Changanassery. They, alongwith the goonda gang under the leadership of Jayachandran, proceeded from B.A. NOS.5832 & 6088 OF 2009 :: 7 :: Changanassery to Mannanchery in Alapuzha in two tempo travellers, a Scorpio car and a Santro car. While proceeding to Alapuzha, there was a break down of one of the tempo travellers. All the vehicles were stopped at that place. The Ford Endeavour car driven by Paul M.George hit on the motor bike near this place. Since Paul did not stop his car, some of the members of Jayachandran’s gang followed Paul in a Tempo traveller. At the place where Paul stopped his car, the unfortunate incident happened. 11. According to the prosecution, Accused Nos.1 to 11 were arrested on 24-11-2009 from a hotel at Changanassery. They were occupying two rooms in the hotel. On the basis of the confession statements made by accused Nos.1 to 11, the Scorpio car and Santro car belonging to Jayachandran (accused No.1) were seized from a place near the house of Abi (accused No.22). The prosecution states that a damaged SIM card was found at the scene of murder of Paul. It was in the name of Vilasini, the mother of Kari Satheesh (Accused NO.12). Kari Satheesh was arrested on 25.8.2009. On the basis of his confession statement, the weapon of offence (knife) was discovered at his residence. It is also stated that a laptop, a digital camera, three bags, five mobile phones, a B.A. NOS.5832 & 6088 OF 2009 :: 8 :: blood stained banian, a gold chain, chappals and credit cards were seized as found in the Scorpio car owned by Paul. The mobile phones belong to Om Prakash, Puthanpalam Rajesh and Manu. The Ford Endeavour car in which Om Prakash and Puthanpalam Rajesh went to Thiruvananthapuram side had a breakdown at Chavara. That car was also seized. 12. Om Prakash and Puthanpalam Rajesh escaped from the place. They were later arrested on 14-9-2009. They surrendered before the Magistrate’s Court at Thirunelveli in Tamil Nadu. On production warrant, they were produced before the Additional Sessions Court, Thiruvananthapuram. They were later produced before the Magistrate’s Court at Ramankari. 13. Sri. M.P.Madhavankutty, learned counsel appearing for Accused Nos.7,9,10 and 11, in his detailed and well prepared arguments pointed out that there are several improbabilities and contradictions in the story put forward by the prosecution, making the whole story unbelievable. He submitted that there is no shred of evidence to connect accused Nos.1 to 12 with the crime. He submitted that it cannot be believed that Kari Satheesh, who is not so B.A. NOS.5832 & 6088 OF 2009 :: 9 :: tall could cause the stab injuries, as alleged by the prosecution, on Paul, who is a six footer. Sri. Madhavankutty submitted that in the evening on the date of occurrence, the Honourable Home Minister stated that on the next day, the D.G.P. would hold a press conference. On the next day, Sri.Vinson M. Paul, I.G. made a press conference and put forward a story. A media trail took place in the following days, said the counsel. Great prejudice was caused to the accused persons due to these incidents. It was also pointed out that Kari Satheesh was arrested only on 25-8-2009. The counsel asked from where did the investigating officer get the information regarding the complicity of accused Nos.1 to 11 so as to arrest them on 24.8.2009. The investigating officer got the clue about the complicity of Kari Satheesh from the SIM card. The counsel submitted that only on the arrest of Kari Satheesh, the investigating officer could get the details about accused Nos.1 to 11. 14. Sri.Madhavankutty also pointed out that in the First Information statement given by Shibu Thomas, it was stated that Paul and two others went in the Ford Endeavour car. Other than Praveen alias Manu, it could be either Om Prakash or Puthanpalam Rajesh. The statement of Praveen alias Manu shows that the B.A. NOS.5832 & 6088 OF 2009 :: 10 :: persons who travelled in the Ford Endeavour car were Paul and Praveen alias Manu. Going by the statement of Manu, Om Prakash and Puthanpalam Rajesh had travelled in the Scorpio car. But as per the First Information Statement of Shibu Thomas, Om Prakash and Puthanpalam Rajesh were travelling in different cars. The counsel pointed out that Om Prakash and Puthanpalam Rajesh are seasoned criminals. Paul M.George had several business interests. Naturally, there would be enemies for him. The counsel contended that the crime must have been committed by either Om Prakash or Puthanpalam Rajesh. 15. Sri.Madhavankutty submitted that no overt acts were alleged to have been committed by the petitioners in the Bail Applications. No materials are brought out to show that they shared common intention or common object with Kari Satheesh, so as to connect them with the offence of murder. It cannot be assumed that the petitioners and the other accused went to the scene of occurrence to commit murder of Paul M.George. Even going by the prosecution case, they went to the scene of occurrence to question the act of Paul M.George as to why he did not stop his car after the accident. B.A. NOS.5832 & 6088 OF 2009 :: 11 :: 16. Sri.Madhavankutty also submitted that no Test Identification Parade was conducted in the case to ascertain the complicity of the petitioners. 17. Sri.T.P.Pradeep, learned counsel appearing for accused Nos.4 and 5 submitted the following: Accused No.4 was working in Mumbai. He came to his native place to celebrate Onam. Accused No.5 is a carpenter aged only 19 years. The contradiction in the statements of Shibu Thomas and Praveen alias Manu is very material. If Om Prakash or Puthanpalam Rajesh was travelling in the Ford Endeavour car, he would have intervened when Paul was being attacked. There is no such case. This would lend support to the theory that Om Prakash and Puthanpalam Rajesh were involved in the murder of Paul M.George. Advocate Sri.T.P.Pradeep also supported the contentions put forward by Advocate Sri.Madhavankutty. 18. The learned Director General of Prosecution pointed out the following: The only person who saw the incident is Praveen alias Manu. His statement under Section 164 Cr.P.C. was recorded. He B.A. NOS.5832 & 6088 OF 2009 :: 12 :: is also an injured person. He is the most competent person to depose in court about the incident. The accused persons are hard core criminals. They are members of what is popularly called “quotation gang”. If the accused persons are released on bail, even the life of the only eye witness would be in danger. 19. The learned Director General of Prosecution also submitted that Section 125 of the Evidence Act provides that no police officer shall be compelled to say from where he got any information as to the commission of any offence. Therefore, the investigating officer is not bound to disclose from where he got the information as to the complicity of accused Nos.1 to 11. 20. A meticulous analysis of the facts of the case or the contentions of the parties is not required while considering the Bail Application filed by the accused persons. It is also not required or feasible to arrive at any conclusion on the merits of the case. Any finding made at this stage is likely to cause prejudice to either the prosecution or defence. Consideration and discussion of the facts are required only for the purpose of considering the question whether the accused persons should be granted bail. Therefore, I refrain B.A. NOS.5832 & 6088 OF 2009 :: 13 :: myself from considering the so called “contradictions” or “irreconcilable circumstances” pointed out by the learned counsel appearing for the petitioners. These are all matters which would be relevant at the stage of trial. There are materials, prima facie, to connect the petitioners with the offence alleged. 21. However, I think I am bound to consider the theory put forward by the counsel that the offence must have been committed by either Om Prakash or Puthanpalam Rajesh or by both. If so, one has to assume that Shibu Thomas (driver) and Praveen alias Manu were also parties or privies to the offence. To accept this theory, we have also to find an answer with respect to the presence of the “quotation gang” of Changanassery at the scene of occurrence, as spoken to by Shibu Thomas and Praveen alias Manu. If their version is taken as correct and if the theory propounded by the counsel were to be accepted, one has to assume that the murder was the result of a joint operation of Om Prakash and his gang and the “quotation gang” of Changanassery. The learned Director General of Prosecution submitted that the investigating agency has an open mind and investigation is being made in all possible angles. He submitted that Polygraph test was conducted on Om Prakash and B.A. NOS.5832 & 6088 OF 2009 :: 14 :: Puthanpalam Rajesh as permitted by the Court. The court also granted permission for conducting the Narco analysis test on them. The Narco analysis test is scheduled to be held between 3rd and 7th November 2009 at Ahmedabad. 22. The cardinal point to be considered is whether it is proper to release the petitioners on bail. In this context, I am inclined to accept the submission made by the learned Director General of Prosecution. The petitioners are said to be members of the “quotation gang” of Jayachandran, the first accused. The case diary shows that Jayachandran is involved in seventeen criminal cases. Shino Paul (accused No.4- first petitioner in B.A. No.6088 of 2009) is involved in one criminal case. Rajeev Kumar (accused No.3) is involved in two criminal cases. Satheeshkumar (accused No.6) is an accused in four criminal cases. According to the prosecution, the only eye witness to the incident is Praveen alias Manu. Shibu Thomas is another material witness. If the petitioners are released on bail, as rightly submitted by the Director General of Prosecution, they are likely to indulge in activities to intimidate the witnesses. Danger to the life of the witnesses also cannot also be ruled out. The investigation is not complete. The result of Polygraph test is to B.A. NOS.5832 & 6088 OF 2009 :: 15 :: be obtained. Narco analysis test has to take place. The investigating agency would be able to complete the investigation only after these events are over. Taking into account the facts and circumstances of the case, I am of the view that the petitioners are not entitled to get bail at this stage. 23. It is relevant to note that Om Prakash, Puthanpalam Rajesh and Praveen alias Manu were closely moving with Paul M. George. It would appear that Shibu Thomas, the driver of Paul M.George does not know their names and about their relationship and dealings with Paul M.George. The question arises why Om Prakash and Puthanpalam Rajesh escaped after abandoning Paul M.George at the critical stage. If it is to be taken that they wanted to conceal their presence during the relevant time alongwith Paul M.George, why did they leave Praveen alias Manu in the car driven by Shibu Thomas in which Paul M.George was taken to the hospital ? What was the purpose of the visit of Om Prakash and two of his friends to Paul M.George ? Had Paul M.George any enemies in his business dealings ? All these are matters which normally the investigating agency is expected to take note of. The assurance of the learned Director General of Prosecution that the B.A. NOS.5832 & 6088 OF 2009 :: 16 :: investigating agency would conduct the investigation taking into account all possibilities and probabilities and even coincidences, is worthy of acceptance. I hasten to add that the mission of the investigating agency should be to find out the truth and to bring to book the culprits. 24. It is made clear that the observations made hereinabove are intended to ensure the investigation of the case to be a complete, flawless and perfect one so that the culprits would not go unpunished. The observations are not to be taken as an adverse comment on the investigating agency. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge