NISHAD V. S. Vs. STATE OF KERALA

JUDGEMENT

(1.) Applications for regular bail under Section 439 Cr.P.C.

(2.) The prosecution case, in brief, is that the de facto complainant and his friend the deceased, had allegedly broken into the car in the possession of accused Nos.18 and 19 on 10.09.2020 and took away a mobile phone kept in the car belonging to the 19th accused. It is stated that they intimated the 2nd accused and in connection with this, and on the date of incident pertaining to this crime that is, on 13.09.2020 at about 2.45 p.m, the 2nd accused had conspired together with the other accused to call for the de facto complainant and his friend near the Cemetery, Santhivanam at Nettoor, and the 2nd accused allegedly manhandled the de facto complainant and his friend. On the same day at about 7.45 p.m, accused 1 to 16 along with the other accused hatched a conspiracy to do away with the de facto complainant and his friend. When the de facto complainant and his friend had reached INTUC Bus stop at Nettoor in front of Aryas hotel, the accused 1 to 16 arrived there by cars and scooters and attacked the de facto complainant and his friend. The first accused was wielding a knife, the second accused had an iron rod with him, and the 3rd accused had a helmet with him. The other accused who were present at the scene occurrence also joined them in beating and kicking the de facto complainant and his friends. The fourth accused wrongfully restrained the deceased namely Fahad Hussain and the 1st accused allegedly inflicted a fatal injury with a knife to which he later succumbed. The applicants are alleged to be part of the conspiracy. Accused 9, 10, 13 and 16 had actively participated in the alleged occurrence. Accused 17 is a lady who had allegedly permitted the other accused to use her mobile phone to hatch the conspiracy. It is also stated that some of the accused had gathered at the flat belonging to the 17th accused for the purpose of hatching the conspiracy. The third accused allegedly took the scooter belonging to the 17th accused and used it to reach the scene of occurrence. Soon after accomplishing the act, the weapons used for the assault were concealed inside the scooter and returned to the 17th accused. The 17th accused allegedly knew about the said concealment and also the fact that the weapons were used for the committing the aforesaid crime. The 20th accused allegedly was the part of the conspiracy in which the de facto complainant was called to the cemetery, Santhivanam on the date of occurrence. His mobile phone was allegedly used by accused Nos.18 and 19 for the purpose of contacting the 2nd accused so as to hatch a conspiracy to do away with the de facto complainant and his friend. The applicants were arrested on different dates. Accused 9, 10, and 13 were arrested on 16.09.2020. The 17th accused was arrested on 23.09.2020 and the 20th accused was arrested on 25.09.2020.

(3.) The applicants state that the overt act of assault resulting in the death of the deceased is attributed solely to the 1st accused. Weapons were wielded only by accused 1, 2 and 3. None of the remaining accused had wielded any weapon which would indicate that they had no intention to commit the offence of murder. It is further stated for accused Nos.17 and 20 that their role in the alleged crime is very very minimal. Under the circumstances, it is prayed that all the applicants may be released on bail since they had been in incarceration for a fairly long time.