Kerala High Court
Krishnankutty vs State Of Kerala on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
BAIL APPL. NO. 4376 OF 2022
CRIME NO.717/2022 OF Kundara Police Station, Kollam
PETITIONERS/ACCUSED NOS.1 TO 3
1 KRISHNANKUTTY
AGED 58 YEARS
S/O.NARAYANAN, ASWATHI, KOYICKAL BHAGOM,
PERUVELIKKARA P.O, PADINJARE KALLADA, KOLLAM,
PIN - 691503
2 AKHIL KUTTAN
AGED 32 YEARS
S/O.KUTTAPPAN, MADANVILAVADAKKATHIL HOUSE,
PUNAKKANNOOR, PERUMBUZHA, KOLLAM DISTRICT.,
PIN - 691504
3 YESUDASAN @ SUNIL
AGED 48 YEARS
S/O.ESTHAPPAN, CHIRAYARUKIL PUTHENVEEDU,
KOTTAPPURAM, MULAVANA P.O, KOLLAM, PIN - 691503
BY ADVS.
NIREESH MATHEW
C.C.THOMAS (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADVS.
PUBLIC PROSECUTOR
DIRECTOR GENERAL OF PROSECUTION(AG-10)
P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC
PROSECUTOR()
OTHER PRESENT:
ADDL.PP - SRI. P.NARAYANAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA No.4376 of 2022 2
VIJU ABRAHAM, J.
.................................................................
B.A. No.4376 of 2022
.................................................................
Dated this the 17th day of June, 2022
ORDER
This is an application for regular bail.
2. Petitioners are accused 1 to 3 in Crime No.717 of 2022 of
Kundara Police Station alleging commission of offences punishable under
Section 302 read with Section 34 of the Indian Penal Code (in short, "IPC").
3. Prosecution case, in brief, is that the victim Prabin Demai, a
native of Nepal was an employee of a restaurant named 'Adukkala Family
Restaurant'. On 05.05.2022 at around 10.15 p.m. Victim Prabin Damai had
reached at the local bar of Royal Fort Bar Hotel, Kundara for consuming
liquor and had gone out. Thereafter when the bar was about to close,
victim Prabin Damai again tried to enter the bar. Then the 2 nd accused who
was the security of the said bar prevented the victim Prabin Damai from
entering the bar and asked him to go out of the bar compound. But the
victim refused to go out. Enraged by the same, accused 1 to 4 jointly,
indiscriminately manhandled the victim Prabin Damai and hit his head
against the wall and caused grievous injuries. The victim succumbed to the
injuries on 06.05.2022 at around 6.00 a.m. and thereby the accused
committed the offences alleged.
4. The case of the petitioners is that they are totally innocent of
the offences alleged against them and in fact what actually happened was
that the deceased came to the hotel and demanded liquor which was
refused by the employees as the bar normally closes at 10.30 p.m. as the
maximum permitted time is only upto 11.00 p.m. Since the liquor was not
served as per his demand, the deceased become angry and violent and
attacked the employees with filthy language. On seeing this the 2 nd
petitioner who is the security guard tried to block the victim from forcefully
entering the bar and when the deceased tried to attack the 2 nd petitioner,
the other petitioners along with some other customers who were present
there have blocked the victim from hitting the 2 nd petitioner and this
infuriated him and violently turned out towards the other petitioners and
other people present there which led to a scuffle and the victim was hit by
many persons who were present there. On seeing the scuffle the
petitioners who are employees of the bar hotel intervened and tried to push
the victim out of the hotel compound. Immediately thereafter the petitioners
and other employees informed the police that the victim is turning violent
and creating issues in the hotel compound and requested to take
appropriate action. The police party subsequently arrived there and the
victim person turned violent towards the police officials also. Thereafter the
victim was taken to the hospital by the police party. The cause of death is
not known and there is no allegation of using of any weapons and there is
no motive or intention on the part of the petitioners to kill the deceased.
5. Heard the learned Senior Counsel for the petitioners and the
learned Public Prosecutor.
6. The learned counsel for the petitioners submitted that even if
the allegations are admitted in toto, the offence under Section 302 is never
attracted in this case as the petitioners did not have an intention or
knowledge for committing an offence of murder. To bring home the point,
the learned counsel relies on the judgment in Thomas v. State of Kerala
(1991 KHC 392) and also the decision in Raju P.M. v. State of Kerala and
others (2021 (1) KLD 811). Learned counsel also relies on the judgment
of the Apex Court in Sushil Ansal v. State through CBI, reported in (2014)
6 SCC 173 to contend for the position that the act of the accused must be
proximate,immediate or efficient cause of death of the victim to attract the
liability under Section 304A IPC and contended that in the present case
offence under Section 302 or 304 is not attracted. It is also submitted that
petitioners have no other criminal antecedents also.
7. Learned Public Prosecutor upon instructions submitted that the
investigation is only at the initial stage and that accused 1 to 4 jointly,
indiscriminately and brutally manhandled victim and hit his head against
the wall and caused grievous injuries. Thereafter accused 1 to 4 jointly took
the victim and put him outside the bar compound and thereafter the 2 nd
accused thrashed the victim brutally. It is also submitted upon instruction
that the 5th accused has also attacked the victim by using a lathi and that
the victim succumbed to the injuries on 06.05.2022. Learned Public
Prosecutor on the strength of the postmortem certificate dated 07.05.2022
submitted that there are 33 ante-mortem injuries on the body of the victim.
As per the statement of the doctor who conducted the postmortem
examination, ante-mortem injuries in the body were blunt injuries on face,
neck, left side of head, upper-limbs and trunk and that there were contains
on either side of neck which might have caused asphyxia leading to death.
It is further stated by the doctor that there was brain edema which may be
either due to the impact on the head or due to asphyxia following blunt
injury to face and neck. It is further submitted by the learned Public
Prosecutor that even one of the employees of Royal Fort Bar Hotel,
Kundara has also given statement which clearly reveals the involvement of
the petitioners in the alleged incident. Learned Public Prosecutor further
submitted that as the investigation in the case is continuing and the main
witnesses are employees and customers of the bar in which the petitioners
are employees, if bail is granted to the petitioners, there is every chance
that the petitioners will influence the witnesses of this case. It is also
submitted that the 4th accused in the crime is absconding.
8. I have gone through the decisions referred to by the learned
Senior Counsel appearing for the petitioners. It is pertinent to note that the
decisions relied on are rendered in criminal appeals filed against
conviction. The decision in Thomas's case (supra) was a case where the
accused hit by his hand on the face of the victim and he later succumbed to
the injuries.The decision in Raju P.M.(supra), relied on by the learned
Senior Counsel appearing for the petitioner was in respect of a boat
tragedy in which 15 young children were drowned, in which it is held that a
mere knowledge that if there is overloading on a boat, there is possibility of
boat sinking, is not the required knowledge contemplated under Section
304 IPC to bring home a case of culpable homicide. I think the decisions
referred to by the learned Senior Counsel are not applicable in the facts
and circumstances of the case on hand since this is a case where the
victim was brutally attacked by the petitioners and going by the postmortem
certificate almost 33 ante-mortem injuries were noticed. I find considerable
force in the contention of the learned Public Prosecutor that if the
petitioners are released on bail, there is every chance to influence the
witnesses and it will affect the fair and proper investigation of the case. The
investigation is in the initial stage and that one of the accused is still
absconding. The Apex Court has settled in clear terms the factors among
other circumstances which are required to be considered while granting
bail and has held that the nature of the accusation and the severity of
punishment in case of conviction and reasonable apprehension of
tampering with the evidence and influencing the witnesses are all matters
that should weigh with the court in the matter of grant of bail. Taking all
these aspects into consideration I feel that petitioners are not entitled for
grant of bail at present.
Bail application is accordingly dismissed. It is made clear that
the observations made above are only for the purpose of consideration of
this bail application.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF BAIL APPL. 4376/2022
PETITIONER ANNEXURES
Annexure1 TRUE PHOTOCOPY OF THE ORDER DATED 23.05.2022
IN CRL.MP.NO.731/2022 PASSED BY THE JUDL.
FIRST CLASS MAGISTRATE COURT-I, KOLLAM.
Annexure2 FREE COPY OF THE ORDE DATED 02.06.2022 IN
CRL.MC.NO.1087/ 2022 PASSED BY THE SESSIONS
COURT, KOLLAM
Annexure3 TRUE PHOTOCOPY OF THE DECISION REPORTED IN
1991 KHC 392 -THOMAS VS. STATE OF KERALA
