Swathish vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the 5th accused in Crime No.818/2021 of Sreekaryam Police Station, Thiruvananthapuram, alleging offences punishable under Sections 323, 324, 326 and 307 r/w Section 34 of the Indian Penal Code, 1860.

According to the First Information Report, due to an enmity towards the defacto complainant for obstructing the activities of the RSS, accused Nos.1 to 4, in furtherance of their common intention, attacked the defacto complainant on 28.04.2021. Subsequently, the petitioner was arrayed as an additional accused No.5. The prosecution case is that pursuant to the attack on the defacto complainant, his right leg was severed in the attack, apart from injuries caused to the left leg and the right hand and the accused thereby committed the offences alleged.

Sri.Arjun Sreedhar, learned counsel appearing for the petitioner contended that the prosecution allegations are false and the incident as alleged against the petitioner had not taken place. According to the learned counsel for the petitioner, accused Nos.1 to 4, who were the only persons initially named in the FIR, have already been released on bail and that the petitioner was included as an additional accused much later, which itself indicates the falsity of the prosecution case. He would also submit that initially, the allegation against the petitioner was that he attacked using his own hands but after his arrest, the prosecution had conveniently changed its stance and now alleges that petitioner had assaulted the defacto complainant with a machette.

Sri. C.N.Prabhakaran, the learned Public Prosecutor, on the other hand, opposed the grant of bail and submitted that petitioner's involvement was revealed only during investigation and that it has come out that the 5th accused had pulled down the defacto complainant while the other accused were attacking him and the fifth accused also attacked his leg with a machette causing total amputation of the right leg and accused had acted in furtherance of their common intention. It was also submitted that the petitioner has involvement in three other criminal cases, including offences punishable under Sections 307 as well as 107 of IPC.

I have considered the rival contentions and also perused the report of the Investigating Officer, which was handed over across the Bar by the learned Public Prosecutor. The allegations against the petitioner are very serious. He is alleged to have pulled down the defacto complainant and attacked the leg of the defacto complainant with a machette. The same machette was initially alleged to have been used by the first and second accused, resulting in total amputation.

Though the allegations against the petitioner are serious and he has antecedents as well, considering the fact that the petitioner was initially not arrayed as an accused, and his involvement was only identified subsequently and further since he has already been in custody from 28.03.2023, I am of the view that the application can be allowed on strict conditions.

Accordingly, this application is allowed on the following conditions:-

(a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitioner shall co-operate with the trial of the case.

(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence.

(d) Petitioner shall not commit any other offences while he is on bail.

(e) Petitioner shall not leave the State of Kerala without the permission of the jurisdictional Court.

In  case  of  violation  of  any  of  the  above conditions,  the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.