ASSAINAR SAITHUKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) These are applications for regular bail filed by 23 out of 139 accused persons standing trial before the Special Court at Kozhikode in the Marad carnage case. The petitioners in B.A.917/07 are accused Nos.118 to 130 and 142. The petitioner in B.A.918/07 is accused No.131. The petitioner in B.A.919/07 is accused No.103. The petitioners in B.A.920/07 are accused Nos.96 and 107. The petitioners in B.A.921/07 are accused Nos.98 and 99 and the petitioners in B.A.934/07 are accused Nos.9, 25 and 66 respectively.

(2.) Sr. Adv. Sri Janardhana Kurup made the following submissions before me in support of these applications:- All these petitioners have been languishing in the prison for more than 3 years and 8 months. There is absolutely no material at all against accused Nos.121 and 126 so as to justify even a conviction against them. Accused No.119 is deaf and dumb who was wrongly identified as accused No.120 by PW.55. There is absolutely no evidence against this accused also. Accused No.130 who is the father of deceased Askarali who was killed in the Marad carnage, had come to the scene unarmed only to weep for his deceased son. His detention is also unnecessarily continued without any useful purpose. Accused No.142 was actually in the Juma Masjid where his daughter got married at 5 p.m. on 2.5.2003 on which date the occurrence took place. The only evidence against him is that of PW.46 who says that accused No.142 had pelted a stone. But there is no charge for the above act of accused No.142. Regarding accused No.129, PW.65 (Premalatha) alone has stated that this accused committed mischief. But this witness had no such case when questioned by the police. There is also no court charge regarding the mischief attributed to her. No overt-act has been alleged against the remaining petitioners in B.A.917/07. Accused No.131 who is the petitioner in B.A.918/07 is suffering from brain tumor. His wife committed suicide. He was allegedly seen at four different places by four witnesses viz. PWs.2, 18, 46 and 55. There is not even a remote possibility of he being convicted. Accused No.103 who is the petitioner in B.A.919/07 is alleged to have introduced accused No.3 to accused No.106 (a blacksmith who has been granted bail). Introducing a person to a blacksmith does not amount to an offence. Accused Nos.96 and 107 are alleged to have introduced to the 1st accused Subramonian, the approver who is now PW.3 (a blacksmith). They also stand on the same footing as accused No.103. Accused Nos.98 and 99 (who are the petitioners in B.A.921/07) are alleged to have participated in the Marva Palace conspiracy. But there is absolutely no evidence in this regard except the recovery of three pieces of paper from the shirt pocket of accused No.99 wherein the name Marva Palace had been written. Regarding the petitioners in B.A.934/07, PW.163 identified accused No.66 before the trial court to depose that he had inflicted injuries on deceased Pushparajan. But PW.163 had not identified accused No.66 during the test identification parade. Even though PWs.51 and 52 have named accused Nos.9 and 25, they did not identify accused No.9 in court. They have not deposed any overt-act against both accused Nos.9 and 25. In the face of such evidence these petitioners are unnecessarily being continued in prison without any useful purpose. There is not even scintilla of evidence against these petitioners to justify a conviction against them.

(3.) Opposing the applications Sri P.G.Thampi, the learned Director General of Prosecutions, submitted that it is too premature to consider the bail applications on the basis of some speck of evidence lifted from here and there. The trial Judge will have to consider the overall evidence in the case and evaluate the context, quality and texture of the evidence. It will be preposterous and pre-emptive to consider the evidence and enlarge the petitioners on bail, particularly when the prosecution is apprehending that these petitioners, if released on bail, will flee from justice.