Kerala High Court
Sibu @ Thumpi vs State Of Kerala on 14 July, 2021
CRL.A No.1405/2019 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
Wednesday, the 14th day of July 2021 / 23rd Ashadha, 1943
CRL.M.APPL.NO.3/2019 IN CRL.A NO. 1405 OF 2019
SESSIONS CASE NO.601/2016 OF THE ADDL.SESSIONS COURT-III, ALAPPUZHA.
APPLICANT/APPELLANT:
SIBU @ THUMPI S/O PURUSHAN, AGED 42 YEARS,OCC. DRIVER, R/AT -
ILLATHUVELIVEEDU, CHERTHALA P.O, WARD -X, CHERTHALA MUNICIPALITY ,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.(PRESENTLY LODGED AT CENTRAL
PRISON POOJAPPURA, THIRUVANANTHAPURAM)
RESPONDENT/COMPLAINANT
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF
KERALA , ERNAKULAM, KOCHI- 18
Petition praying that in the circumstances stated therein the High
Court be pleased to suspend the sentence imposed on the Applicant by the
judgment of guilty , conviction and sentence in S.C. No. 601 of 2019
dated 03.08.2019 on the files of the Ld.Addl. District and Sessions Court-
III at Alappuzha District and release the Applicant on bail, pending
disposal of the above Criminal Appeal.
This petition coming on for orders upon perusing the petition and
upon hearing the arguments of M/S BIJU ANTONY ALOOR, K.P.PRASANTH, ARCHANA
SURESH, T.S.KRISHNENDU, ARUNRAJ S., PRASANTH N.O., Advocates for the
petitioner and of PUBLIC PROSECUTOR for the respondent, the court passed
the following:
P.T.O
CRL.A No.1405/2019 2/6
K. Vinod Chandran & Ziyad Rahman A.A , JJ.
------------------------------------------
Crl.M.Appl.No.3 of 2019 in
Crl.A.No.1405 of 2019
-------------------------------------
Dated, this the 14th day of July, 2021
ORDER
Vinod Chandran, J.
The petitioner herein is the appellant, who is
the 3rd accused in S.C.No.601 of 2016 on the files of the
Additional Sessions Judge-III, Alappuzha. The offences
alleged are under Sections 143, 147, 148, 149, 120(b),
212 and 302 IPC. The occurrence, on the basis of which
the charges have been raised, is the murder of two motor
cyclists for reason of prior enmity; whose murder was
plotted in a conspiracy entered into by A1 and A3 to A5.
The deceased were travelling in a motor cycle, when a
lorry, in which the five accused were present, hit the
motor bike purposefully and ran over the motor cyclists.
The prayer made in the above application is for enlarging
A3 on bail after suspending the sentence till the
disposal of the appeal. A subsequent application for
interim bail was rejected by us. The learned Counsel then
sought for consideration of the above application, which
was pending from the date of its filing.
CRL.A No.1405/2019 3/6
Crl.M.Appl.3/2019 in - 2 -
Crl.A.No.1405/2019
2. The learned Counsel for the petitioner argued
that the prima facie consideration made in the case of A4
and A5 by another Division Bench and A2, whose
application was just now heard, squarely applies in the
case of A3 also. It is pointed out that though there was
separate cross-examination by each of the accused, the
infirmities and contradictions brought out by one accused
can definitely enure to the benefit of the others. It is
pointed out that the identification is from a moving
vehicle which cannot be believed. It is also argued that
even if this accused is said to have been driving the
vehicle, there is no cause for implicating him under
Section 302 when the allegation could only be, in the
worst case, of a hit and run, confining it to one of
rash and negligent driving. The conspiracy said to
have been hatched by A1 and A3 to A5 stands on a sticky
wicket and there is no enmity alleged between the
deceased and this accused.
3. The learned Senior Public Prosecutor, on the
other hand, would take us through the judgment and skim
through the depositions to point out that unlike in the
case of A4 and A5 there is clear allegation against A3,
who was the driver of the vehicle. The conspiracy,
CRL.A No.1405/2019 4/6
Crl.M.Appl.3/2019 in - 3 -
Crl.A.No.1405/2019
according to him, was established and A3 was the person
driving the vehicle. The incident is not one of a mere
hit and run, but a calculated plot to do away with the
deceased with whom A1 and A2 had enmity, which was
established in trial. The Prosecutor also alertly points
out the evidence of PW-24, an independent witness. It is
also submitted that A3 was immediately arrested.
4. PW-3 is the witness who identified A3 from a
moving vehicle. PW-3 was standing on the roadside in a
bus stop, when he saw two known persons coming in a motor
bike. There was a lorry, which was following the motor
bike and when it neared the bus stop, PW-3 heard A1
sitting on the left extreme side of the offending vehicle
shouting to the driver to do away with the motor
cyclists. The offending vehicle was then purposefully
swerved to the left to hit on the bike. The motor
cyclists fell down and were run over by the lorry, which
was driven by a dark fat man, who was identified as A3.
Just prior to the incident, PW-2 had seen A1 to A5
boarding a lorry which drove away and A3, who was driving
the vehicle was identified as a dark fat man. Both PW-2
and PW-3 were acquainted with the deceased and A1 and A2.
However, they were not acquainted with the other accused.
CRL.A No.1405/2019 5/6
Crl.M.Appl.3/2019 in - 4 -
Crl.A.No.1405/2019
5. As far as A3 is concerned, it is further
clinching that he was arrested on the same day after few
hours of the incident. The learned Prosecutor pointed out
paragraph 34 of the judgment. PW-24 identified A3 who was
driving the vehicle after the incident. After the
occurrence, hearing of the murder, the people of the
locality, together blocked the lorry by placing logs
across the road. A3, who was driving the offending
vehicle, refused to yield or stop and tried to proceed
with the vehicle. The vehicle was run over the logs,
which lost control and hit against the back door and
glass of PW-24's car. PW-24, from the identification made
at the place where the accident occurred, identified the
accused in the dock, in Court, from among the others.
PW-24 has no acquaintance with any of the accused and was
a chance witness, whose independence and presence stood
unequivocally established. It is the evidence of PW3 that
A3 who was driving the vehicle at the command of A1
swerved the vehicle, purposefully to hit on the bike and
later the riders of the bike were also run over. It is no
case of a mere hit and run; an accident caused by rash
and negligent driving and we are prima facie satisfied
that there was clear premeditation and deliberation in
CRL.A No.1405/2019 6/6
Crl.M.Appl.3/2019 in - 5 -
Crl.A.No.1405/2019
having caused the accident leading to the death of the
motorcyclists. We are of the opinion that what has been
stated, in the case of A4 and A5, and A2 cannot be relied
on by A3, whose overt act stands established.
6. We make it clear that the observations made
by us are prima facie in nature for rejecting the
application made for suspension of sentence, which shall
not govern the final hearing in the appeal or impede any
subsequent application for interim bail on specified
contingencies.
We reject the application with the above
observations.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
ZIYAD RAHMAN A.A
JUDGE
Vku/-
14-07-2021 /True Copy/ Assistant Registrar
