FAROOQUE AND OTHERS Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed under section 438 CRPC, 1973. The petitioners are accused Nos. 1 to 5 in Crime No. 666/2017 of Vidhyanagar Police Station, Kasaragod District. The crime was registered for the offences punishable under Sections 143, 147, 148, 341, 323, 324 and 308 r/w 149 IPC.

(2.) The allegation of the prosecution was that on 23.11.2017 at 15 hrs, the petitioners formed themselves in to an unlawful assembly and in furtherance of the common object formed in the assembly, assaulted the defacto complainant. The specific allegation against the 3rd petitioner was that he aimed a blow at the head and forehead of the defacto complainant with an iron rod, which due to his evasion with hands, slipped off and hit on his hand and caused injury thereon. The allegation against the rest of the accused was that they assaulted him with hands and legs. It is alleged by the prosecution that the blow on the head and forehead, if not evaded would have caused fatal injuries there and resulted in his death. Based on the allegations, the FIR was registered by the Vidhyanagar Police. The petitioners are of apprehension of being arrested and harassed by the investigating officer and thus moved this application seeking pre-arrest bail.

(3.) Sri. I.V. Pramod, the learned counsel who represented the petitioners has advanced arguments on their behalf. According to him, on the basis of the very same incident, a counter case was also registered as Crime No. 667/2017 by the Police of Vidhya Nagar Police Station of Kasaragod District. According to him, even if the allegations are considered in toto, the offence under Section 308 would not be attracted as the ingredients constituting the same are not available. It is also contended that the injuries sustained by the defacto complainant in the crime in question are of simple nature and that also stands in the way against the sustainability of the allegations. It is also the contention of the learned counsel that the incident in question was allegedly occurred at the compound of the house of the 1st petitioner and that indicates that defacto complainant and his friends are the assailants. Raising contentions as above, the learned counsel canvassed for enlarging the petitioners on prearrest bail.