IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5934 of 2008()
1. AHAMMEDKUTTY @ KUNHAVA,
... Petitioner
2. MUHAMMED HAJI, S/O.AHAMMEDKUTTY,
3. HASSAN HAJI, S/O.AHAMMEDKUTTY,
4. MOIDU, S/O.AHAMMEDKUTTY HAJI, PULIKKAL
5. MUHAMMED FAZIL, S/O.MOOSA, PULIKKAL
6. AHAMMEDKUTTY @ KUNHU,
7. MUHAMMED SHAMEEN, S/O.AHAMMEDKUTTY,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :24/11/2008
O R D E R
K. HEMA, J.
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B.A. No. 5934 of 2008
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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(2) Prayer for anticipatory bail by other accused is
rejected.
This petition is partly allowed.
K.HEMA, JUDGE.
mn.