IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Bail Appl..No. 6939 of 2008() ----------------------------- CRIME NO.288/08 OF KUMILI POLIC STATION .................... PETITIONERS: ACCUSED 1 TO 4 ------------------------------ 1. SIJESH, S/O.SUBRAHMANIAM, KISHAKKEKARA HOUSE, ANAVILASAM BHAGOM, ANAVILASAM VILLAGE. 2. KUNJUMON, KISHAKKEKARA HOUSE,ANAVILASAM BHAGOM, ANAVILASAM VILLAGE. 3. RAJESH KISHAKKEKARA HOUSE,ANAVILASAM BHAGOM, ANAVILASAM VILLAGE. 4. MAHESH, KISHAKKEKARA HOUSE,ANAVILASAM BHAGOM, ANAVILASAM VILLAGE. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE KUMILI POLICE STATION,,THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.6939 of 2008 --------------------------------------------- Dated this the 18th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 447, 323 and 326 read with Section 34 IPC. According to prosecution, petitioners, in furtherance of common intention, trespassed into the courtyard of the house of the defacto complainant and assaulted her father. She was also pushed down. Thereafter, stones were pelted by the accused and one such stone hit the hand of the defacto complainant and it was fractured. 3. Learned counsel for petitioners submitted that the incident in this case is alleged to have taken place on 13.9.2008 at 12 noon. But, on the same day, at 2 p.m., defacto complainant's father-in-law attacked the accused. He sustained injury and he was hospitalised. Defacto complainant in this case was also hospitalised at 6.45 p.m. This case is falsely filed against petitioners. Petitioners are absolutely innocent of the allegations made. The offence under Section 326 IPC will not be attracted since the stone cannot be said to be a dangerous weapon, it is submitted. 4. This petition is opposed. Learned public prosecutor submitted that victim sustained fracture by use of a weapon. It is not correct to say that stone is not a dangerous weapon. It depends upon the nature and size of the weapon. The fact that defacto BA No.6939/08 2 complainant sustained a fracture by the use of a stone itself indicate that the stone used must have been of a dangerous size and nature, it is submitted. This is not a fit case to grant anticipatory bail, it is submitted. 5. On consideration of the facts and circumstances stated above, I am not inclined to grant anticipatory bail. Learned counsel for petitioners would say that this is an absolutely false case since a crime was registered in respect of an incident which occurred at 2 p.m. on the same day. The innocence of petitioners is not discernible from the submissions made. Both sides have sustained injuries and admittedly, those injuries were not sustained in the course of the same incident. In such circumstances, I am not inclined to grant anticipatory bail. The incident occurred as early as on 13.9.2008 and petitioners were not available for interrogation or investigation. Hence, petitioners are directed to surrender before the Investigating Officer and co-operate with investigation without any delay. Whether they surrender or not, police is at liberty to arrest them. The petition is dismissed. K.HEMA, JUDGE csl