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Kerala High Court
Bahuleyan vs State Of Kerala on 20 May, 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
Monday, the 20th day of May 2024 / 30th Vaisakha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.133 OF 2024
SC 1748/2019 OF I ADDITIONAL DISTRICT AND SESSIONS COURT, KOLLAM
APPLICANT/APPELLANT/ACCUSED:
BAHULEYAN, AGED 67 YEARS, S/O. VELU, SMITHA VILASAM, VELLIKODE,
AGASTHYAKODU MURI, ANCHAL VILLAGE, KOLLAM, PIN - 691306.
RESPONDENTS/RESPONDENTS/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE INSPECTOR OF POLICE,
ANCHAL POLICE STATION, ANCHAL, KOLLAM - 691306 THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to suspend the
sentence awarded against the accused/appellant in SC No.1748/2019 by the
Court of Sessions, Kollam, in the interest of justice.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of M/S.R.REJI KUMAR, P.R.JAYAKRISHNAN, 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.133 of 2024
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Dated this the 20th day of May, 2024
ORDER
S.MANU, J.
In this application filed under Section 389 of the Cr.P.C the petitioner who is the sole appellant in Crl.Appeal No.133 of 2024 seeks suspension of execution of sentence imposed on him in S.C.No.1748 of 2019 of the Additional District and Sessions Court-I, Kollam.
2. The petitioner was chargesheeted for the offences under Sections 447, 302, 324 and 307 of the IPC. The trial court found him guilty of the offences under Sections 302 and 447 of the IPC. He has been sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) under Section 302 of the IPC, in default of payment of fine to undergo further period of rigorous imprisonment for six months and also to undergo Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.133 of 2024 2 rigorous imprisonment for three months under Section 447 of the IPC.
3. We have heard the learned counsel appearing for the petitioner/appellant and also the learned Special Government Pleader appearing for the respondent/State. We have also perused the judgment of the trial court and records of the case.
4. The learned counsel appearing for the petitioner submitted that the conviction of the petitioner/appellant is mainly on the basis of the evidence of PW1 who is the son of the deceased. He submits that there are material contradictions in the evidence of PW1 and a proper appreciation of evidence would show that he is not a reliable witness. The counsel adds that the said witness has been considered as trustworthy by the learned Additional Sessions Judge without appreciating various contentions raised by the accused. It is the contention of the learned counsel that recovery of MO1 is not admissible and no reliance can be placed on the recovery. It is also submitted that the Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.133 of 2024 3 evidence of PWs.2 and 3 are also liable to be discarded. The counsel asserted that the petitioner is entitled for acquittal if the appeal is heard finally and therefore further incarceration of the petitioner will not be justified.
5. The learned Special Government Pleader filed detailed objection. She has specifically mentioned various items of evidence brought on record by the prosecution. She submitted that the evidence of PW1, PW2 and PW3 cannot be discredited and the learned Additional Sessions Judge has rightly relied on the same to find that the petitioner/appellant is guilty of the murder of PW1's mother Valsala. She also points out that the nature of the injuries, the number of injuries and the situs of injuries are clear indications of the intention of the petitioner to commit murder. According to her, the prosecution has successfully proved the motive as well as the occurrence. Referring to the judgments of the Hon'ble Supreme Court in Atul Tripathy v. State of U.P. and another [(2014) 9 SCC 177] and Preet Pal Singh v. State of Uttarpradesh [(2020) 8 Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.133 of 2024 4 SCC 645] she submitted that the petitioner does not deserve to be released on bail.
6. While considering an application for suspending the execution of sentence the appellate court has to see whether there are any palpable errors in the findings of the trial court. Detailed examination and analysis of the evidence are not permissible while considering an application under Section 389 of the Cr.P.C for suspension of sentence. On a reading of the evidence of PW1, PW2 and PW3 we are of the prima facie opinion that the occurrence has been proved by those witnesses. PW1 has clearly spoken about the incident and infliction of fatal injuries by the petitioner. The remaining witnesses have also given evidence which is sufficient to prima facie accept the prosecution case. As stated above, detailed re-assessment of the evidence is not required at this stage. Only in exceptional cases sentence imposed for the offence under Section 302 of the IPC can be suspended. We do not find any apparent/glaring errors or mistakes in the findings of the Crl.M.Appln.No.1 of 2024 in Crl.Appeal No.133 of 2024 5 trial court. There are no exceptional circumstances justifying release of the petitioner. Therefore, we hold that the petitioner is not eligible to be released on bail invoking the power under Section 389 of the Cr.P.C.
In the result, this Crl.M.A. is dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE Sd/-
S.MANU, JUDGE skj 20-05-2024 /True Copy/ Assistant Registrar