Kerala High Court
Shybu @Appuni vs State Of Kerala on 5 April, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Friday, the 5th day of April 2024 / 16th Chaithra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1071 OF 2022
SC 404/2015 OF THE ADDITIONAL SESSIONS COURT-I,MAVELIKKARA
APPLICANT/APPELLANT NO.2:
SHIBU, AGED 30 YEARS, S/O. XAVIER, RESIDING ON RENT AT, KAVINTE
PADEETTATHIL, SANTHI BHAVAN, ERUVA EAST MURI, ALAPPUZHA DISTRICT -
690572 FROM: BIJU BHAVANAM, KAIPPALLIL VEEDU, KANNAMANGALAM SOUTH
MURI, KANNAMANGALAM VILLAGE,
ALAPPUZHA DISTRICT, PIN - 690106.
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence and fine imposed by the
trial court by the impugned judgment dated 14.10.2022 in S.C.No.404/2015
of the court of the Additional Sessions Judge - I, Mavelikkara, in the
interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.P.VIJAYA BHANU (SR.),NIKITA J.
MENDEZ, P.M.RAFIQ, M.REVIKRISHNAN, AJEESH K.SASI, SRUTHY N. BHAT, RAHUL
SUNIL, SRUTHY K. K., Advocates for the petitioner and of the PUBLIC
PROSECUTOR for the respondent, the court passed the following:
P.T.O.
P.B.SURESH KUMAR & S.MANU, JJ.
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Crl.M.Appln.No.1 of 2024 in
Crl.Appeal No.1071 of 2022
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Dated this the 05th day of April, 2024
ORDER
S.MANU, J.
The fourth accused in S.C.No.404 of 2015 of the Additional Sessions Court-I, Mavelikara is seeking suspension of sentence imposed on him in this Crl.M.A. In the appeal, he is the second appellant.
2. The petitioner, along with other accused, who are his father, mother and brother, have been found guilty of the offences under Sections 447, 323, 506(ii), 452 and 302 read with Section 34 of IPC by the trial court. The petitioner has been sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs.500/- for the offence punishable under Section 447 read with Section 34 of the IPC with default sentence of one week. For the offence under Section 323 read with Section 34 of the IPC the punishment imposed is rigorous imprisonment for one year. For the offence under Section 506(ii) read with Section 34 of Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.1071 of 2022 2 the IPC the petitioner has been sentenced to undergo rigorous imprisonment for seven years. For the offence under Section 452 read with Section 34 of the IPC also he has been sentenced to undergo rigorous imprisonment for seven years and also to pay fine of Rs.10,000/- with default sentence of rigorous imprisonment for one month. For the offence under Section 302 read with Section 34 of the IPC the petitioner has been sentenced to undergo imprisonment for life and also to pay fine of Rs.1,00,000/-. In default of payment of fine he has been sentenced to undergo rigorous imprisonment for one year.
3. The petitioner was initially arrested, during the crime stage on 5.2.2015 and was released on bail on 26.8.2015. He is undergoing imprisonment since 14.10.2022, the date of judgment of the Additional Sessions Court-I, Mavelikara.
4. Sri.P.Vijayabhanu, learned Senior Counsel appearing for the petitioner submitted that the offences alleged against the petitioner have not been proved during the trial. He points out that the petitioner allegedly reached Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.1071 of 2022 3 the place of occurrence unarmed. He also points out that there are serious discrepancies regarding the overt acts allegedly committed by the petitioner as described in the FIS, Final Report and the evidence of eye witnesses. He also added that the evidence of PW1 and PW2 regarding the role of the petitioner is not reliable. The crux of the argument of the learned Senior Counsel is that the prosecution has not established the alleged overt acts of the petitioner beyond doubt. Hence, he submits that the petitioner is entitled to get the sentence imposed on him suspended.
5. On the other hand, Sri.E.C.Bineesh, learned Public Prosecutor submitted that the petitioner inflicted fatal injuries on the deceased. He pointed out that PW1 as well as PW2 have clearly deposed about the offences committed by the petitioner and the specific overt acts committed by him have been clearly pointed out in their depositions. He further submits that the evidence of PWs.1 and 2 is trustworthy and the trial court has rightly found the petitioner guilty of the offences as described above. In conclusion, he submits that the petitioner has not made out Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.1071 of 2022 4 a case to get the sentence imposed on him suspended.
6. We have perused the judgment of the trial court as well as the relevant records. It is well settled that the sentence of imprisonment for life shall not be suspended ordinarily. In cases involving conviction under Section 302 of IPC, benefit of suspension of sentence can be granted only in exceptional cases. Vital consideration for grant of bail is that the accused must have prima facie a good case for consideration in the appeal.
7. In the case at hand, we find merit in the submissions advanced by the learned Senior Counsel appearing for the petitioner. In the FIS it was stated that accused Nos.1 to 3 brutally assaulted the deceased at about 6.30 p.m. on 23.1.2015. It was further stated in that the petitioner/fourth accused who came to know about the incident also reached the place of occurrence and when the informant tried to prevent him from committing assault, he fisted below the left eye of the informant. The informant ran into the house and closed the door to escape. Then the petitioner kicked on the door and thereafter stamped several Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.1071 of 2022 5 times on the left rib portion of the deceased who was lying in the courtyard and left the place of occurrence along with accused Nos.1 to 3. However, the case projected in the final report is that the petitioner reached the place of occurrence after accused 1 to 3 left the place. When PW1 was examined, he stated before the trial court that accused Nos.1 to 3, after brutally assaulting the deceased left the place of occurrence. Thereafter PW1 entered his house and locked the door from inside. He further stated that he sat on a chair in the central portion of the hall with his child on his lap. He then heard the third accused making a phone call to the fourth accused and asking him to reach the place. In five to six minutes the fourth accused reached the place. The third accused told him something and then he came to the house of the deceased. He forcefully opened the front door by repeatedly kicking on it. He then fisted below the left eye of PW1 and attempted to assault him again. Mother of PW1 intervened to prevent the assault and then the petitioner went out. The deceased was lying in the courtyard and the petitioner stamped him three times on the Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.1071 of 2022 6 left rib portion of the deceased. After the assault he left the place. These versions, vary from each other in material particulars, prima facie. Evidence of PW2 is also more or less in the same lines.
8. A deeper analysis of the evidence is not required while considering an application under Section 389 (1) of the Cr.P.C. for suspension of execution of sentence. The only requirement is to analyse whether the accused seeking suspension of sentence has pointed out a prima facie good case. As noted above, there are many discrepancies in the versions given at various stages by the ocular witnesses PWs.1 and 2 about the role of the petitioner. We also note that the petitioner was unarmed. He had not taken part in the initial predetermined assault and reached later, on getting a call from his mother.
9. Petitioner has been undergoing imprisonment since pronouncement of the judgment by the trial court. During the crime stage also he has suffered incarceration. The appeal is of the year 2022 and it may take some time for hearing the appeal finally. Therefore, we are of the view Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.1071 of 2022 7 that the sentence imposed on the petitioner can be suspended.
In the result, the sentence imposed on the petitioner shall stand suspended on condition that the petitioner shall execute a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the trial court. He shall not involve in any criminal activities and needless to say, the time during which he is released pursuant to this order shall be excluded in computing the term for which he is so sentenced.
Sd/-
P.B.SURESH KUMAR, JUDGE Sd/-
S.MANU, JUDGE skj 05-04-2024 /True Copy/ Assistant Registrar