IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Thursday, the 7th day of July 2022 / 16th Ashadha, 1944
CRL.M.APPL.NO.1/2021 IN CRL.A NO. 262 OF 2021
S.C.NO.737/2013 OF THE ADDL. DISTRICT & SESSIONS COURT-VI, THIRUVANANTHAPURAM.
APPELLANT/ACCUSED NO.1
BINU AGED 34 YEARS S/O.MOHANAN, KARUNYA BHAVAN, AMPADI NAGAR, STREET
NO.4, ALATHARA, PONGUMMOODU WARD, CHERUVAIKAL VILLAGE,
THIRUVANANTHAPURAM DISTRICT.
RESPONDENT/COMPLAINANT
THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682 031.
Application praying that in the circumstances stated therein the
High Court be pleased to issue an interim order suspending the execution
of the sentence imposed on the petitioner in S.C.No.737/2013 on the file
of Addl. Sessions Court-VI, Thiruvananthapuram ordering him release on
bail, pending final disposal of the above criminal appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S SALIM V.S., A.M.FOUSI, Advocates for
the petitioner and PUBLIC PROSECUTOR for the respondent, the court passed
the following:
p.t.o
Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021
1
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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Crl.M.A.No.1 of 2021
in
Crl.A.No.262 of 2021
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Dated this the 7th day of July, 2022
O R D E R
Jayachandran, J.
1. Petitioner/appellant herein is the first accused in S.C.No.737 of 2013 of the Additional Sessions Court- VI, Thiruvananthapuram. As per the judgment impugned in the above appeal, the petitioner/first accused was convicted for offences interalia under section 302 of the Penal Code and was sentenced to undergo imprisonment for life. The second accused, who is the father of the first accused was, however, acquitted.
2. The instant criminal miscellaneous application is preferred under Section 389 of the Code of Criminal Procedure seeking suspension of execution of the sentence and release of the petitioner on bail, pending disposal Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 2 of the above criminal appeal.
3. Heard Sri.V.S.Salim, learned counsel for the petitioner/appellant and Sri.Alex M. Thombra, learned Public Prosecutor. Perused the records.
4. According to prosecution, the deceased was the driver of an autorikshaw owned by the second accused and he was working on daily wages. According to the prosecuiton, the deceased quarrelled with the second accused on 05.09.2010 at 10p.m., after the day's work. The deceased came drunk and asked for the key of the autorikshaw, which the second accused refused. After abusing the second accused with obscene words, the deceased slapped him. On the next day morning also, the deceased came to the second accused with the same demand, which was again refused. The deceased shouted abuses at the second accused again, to which, the second accused retorted that he will show him at the evening. On 06.09.2010 at 3.30p.m., the first accused, at the instigation of the second accused trespassed into the residential house of the deceased, with a knife. The Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 3 first accused had a scuffle with the deceased in the hall room and he stabbed beneath the lower abdomen of the deceased, to which, the deceased succumbed. The accused persons have thus committed the offences enumerated above, according to the prosecution.
5. Learned counsel for the prosecution assailed the judgment impugned, essentially on three premises. The first is that, PWs.1 and 2, whose ocular evidence has been taken stock of by the Sessions Court, were not in fact present at the time of occurrence at the relevant time, which has been elicited in the cross examination of PW2. Secondly, the nature of the weapon was not referred to in the first information statement. Besides, the weapon, MO3, was recovered from an open place, which recovery is not supported by the witness to the mahazar. Thirdly, learned counsel contended that, although MO3 weapon was sent for chemical examination, the blood group corresponding to the stains in MO3 weapon was not detected.
6. Per contra, this application was seriously Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 4 opposed by the learned Pubic Prosecutor. According to him, the judgment impugned is a reasoned one, wherein the ocular evidence tendered by the eye witnesses have been taking stock of, wherefore, the same is not liable to be suspended.
7. We will now address the points raised by the learned counsel for the petitioner/appellant. In the context of the first point raised, we perused the evidence tendered by PWs.1 and 2. PW1 is the sister of the deceased Jose @ Kunjumon and PW2 is her husband. A suggestion was seen put to PW1 to the effect that, on the fateful day by 2 p.m., PWs.1 and 2 went out to meet Dr.Shylaja, which, however, is seen negated by the witness. It is elicited that, PW1 was a full term pregnant lady at the time of incident and that, she was under the treatment of Dr.Shylaja. A further suggestion is seen put to PW1 that, she is telling falsehood that the consultation time of Dr.Shylaja is in the morning. Another suggestion was that, PWs.1 and 2 came back after consulting Dr.Shylaja only by 4 p.m., which is also Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 5 denied by PW1.
8. PW2 was cross examined to elicit that, he used to come to his wife's house once in a week and that, he used to take appointment with Dr.Shylaja during such visit. It was further elicited that, PW2 came to his wife's parental home on the fateful day for the purpose of consulting Dr.Shylaja. However, to a crucial suggestive question that he left the house along with PW1, to consult the doctor by afternoon is specifically denied by PW2, by answering that he did not go since the death took place. There exists some confusion in the immediately following portion of the deposition, which is extracted here below.
"വവൈകകീടട്ട് 4 മണണി കഴണിഞഞ്ഞാണ് ഞഞ്ഞാനനനും ഭഞ്ഞാരര്യയനനും Dr.Shylaja യയ കണണിടഞ്ഞാണന വൈകീടണിലലേകന മടങണി എതണിയത് എനന പറയനനന. The learned PP interferes and the witness adds. Date ലചഞ്ഞാദണിചണിലേല. അതനയകഞ്ഞാണഞ്ഞാണ് അങയന പറഞത്. അതനയകഞ്ഞാണഞ്ഞാണ് അങയന പറഞത്."
Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 6
9. Having perused the above question/answer, it is not clear whether the above deposition recorded by the Sessions Judge is strictly a question or an answer. On the beginning portion of the statement, the language employed in first person (ഞഞനനന); however, towards the end of the statement, a suggestion is discernible (എനന പറയനനന), suggestive of a question. However, from the subsequent answer, that he deposed so since the date was not specified, affords a reasonable inference that the witness had deposed that, he came back after 4 p.m. on the crucial date. We, in any case, is not inclined to take the above deposition as a clear and unmistakable admission on the part of PW2, so as to rule out the presence of PWs.1 and 2 at the scene of occurrence at the relevant time. The possibility of the witness being misled or misconceived by the question very much writ large. That statement cannot be picked up in isolation to undo the effect of rest of the facts deposed by PW2.
10. The second contention is that the nature of the weapon is not specified in the first information Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 7 statement. Having regard to the scope of the present application under section 389 Cr.P.C., we do not deem it as fatal, so as to frown upon the judgment of conviction impugned. That apart, PW1 had a plausible explanation at page No.13 that, she could not notice the nature of the weapon in the melee on account of the scuffle between the first accused and the deceased. The third and last contention is that, the blood group corresponding to stain found in MO3 weapon could not be identified in chemical examination. Here also, we do not find any serious infirmity, especially, since the case at hand is one, where conviction is entered into on the basis of the evidence tendered by eye witnesses, namely PWs1 and 2; and not on the basis of circumstantial evidence. We find no serious infirmity to the judgment impugned, prima facie.
11. As it is well settled, the benefit of suspension can be granted only in exceptional cases when conviction is made for grievous offences like the one under Section 302 of the Indian Penal Code. (See in this regard Vinay Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021 8 Kumar v. Narendra [(2002)9 SCC 364]; Ramji Prasad v. Rattan Kumar Jaiswal [(2002)9 SCC 366] and Anil Ari v. State of West Bengal [AIR 2009 SC 1564]. We cannot find any exceptional circumstances warranting suspension of execution of the order of sentence and release of the petitioner.
We, therefore, dismiss the instant miscellaneous application.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
C.JAYACHANDRAN JUDGE Sbna/ 07-07-2022 /True Copy/ Assistant Registrar