Kerala High Court
Sc No.1013/2017 Of The Additional ... vs Mohanan on 25 March, 2021
CRL.A 113/2021 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Thursday,the 25th day of March 2021/4th Chaithra, 1943
For information purpose only
CRL.M.A No.2/2021 IN CRL.A No.113/2021
SC NO.1013/2017 OF THE ADDITIONAL SESSIONS COURT-III, KOLLAM.
APPELLANTS/ACCUSED NO.2
MOHANAN,AGED 51/2020,
S/O RAGHAVAN, SANTHOSH BHAVAN, MARAVANCODE, KIZHAKKEKARA
MURI, VELIYAM VILLAGE
RESPONDENT/COMPLAINANT & STATE
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-31.
Petition praying that in the circumstances stated therein the High Court be pleased to
suspend the sentence of imprisonment imposed on the petitioner vide the judgment dated
18/2/2019 in S.C.No.1013/2017 on the files of the Court of Addl.Sessions Judge-III, Kollam
on such condition as this Hon'ble Court may deem fit and proper in the facts and circumstances
of the case and release the petitioner on bail pending disposal of the above Crl.Appeal.
This petition coming on for orders upon perusing the petition and upon hearing the
arguments of M/S AJEESH S.BRITE, ABHILASH AUGUSTINE M., STEPHY JOSEPH,
Advocates for the petitioner and the PUBLIC PROSECUTOR for the respondent, the court
passed the following
p.t.o
K. VINOD CHANDRAN & M.R.ANITHA, JJ.
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Crl.M.A.No.2 of 2021
in
Crl.A.No.113 of 2021
---------------------------------
Dated this the 25th day of March, 2021
For information purpose only
ORDER
M.R. Anitha, J.
Petition filed u/s.389 Cr.P.C. to suspend the sentence
passed against the petitioner/appellant/2nd accused (hereinafter
be referred as 'the petitioner') in S.C.No.1013/2017 on the file
of the Court of Additional Sessions Judge-III, Kollam. By the
impugned judgment the petitioner was convicted and sentenced
u/s.447, 323, 324, 326, 34 and 302 IPC.
2. Prosecution case is that, accused No.1 while going
with his daughter, deceased under the influence of liquor
abused accused No.1 and his daughter using filthy language on
05.02.2017 at 17 hours at Maravancode, Kizhakkekkara Muri,
Veliyam Village. Thereupon, accused No.1 slapped Thulasi - the
deceased on his cheek and went away. Thereafter, the
petitioner and the deceased had a wordy altercation. Accused
No.1 also returned by that time and both of them in furtherance
of their common intention beat him to death.
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Crl.A.No.113 of 2021
3. Notice was issued to the respondent. Learned Senior
Public Prosecutor Sri. S.U. Nazar appeared on behalf of the
respondent.
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4. Heard both sides.
5. The main contention of the learned counsel for the
petitioner is that the main culprit - 1st accused has not faced the
trial and the petitioner alone has been convicted by the trial
Judge. According to him, PW2 is a child witness and her
evidence is not trustworthy and presence of PWs 2 and 3 at the
place of occurrence is doubtful. The petitioner has been
convicted based upon a wrong appreciation of evidence and
there is every chance of allowing this appeal.
6. The learned Public Prosecutor on the other hand would
contend that PWs 2 and 3 have deposed in corroboration and
their evidence is corroborated by the extra judicial confession
made to PW5 by the petitioner. Medical evidence is also in
corroboration with the ocular evidence and the case against the
petitioner has been proved convincingly and hence there is no
chance of interfering with the conviction and sentence. Hence he
seeks for dismissal of the petition.
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Crl.A.No.113 of 2021
7. On going through the judgment, it is seen that PWs 1
to 33 were examined and Exts.P1 to P27 were marked and MOs
1 to 4 were identified and marked. Ext.X1 was also marked. It
For information purpose only
has been discussed in the judgment that PW2 is a child witness
competent to swear and depose before the court and she was the
granddaughter of the deceased and had witnessed the
occurrence. She clearly deposed about the overt act of beating
the deceased by the petitioner with lathi at his head and kicking
him down into a pit. PW3 is another occurrence witness who is a
neighbour of the deceased. She also deposed in corroboration
with PW2 and clearly stated about the overt act of the petitioner.
PW5 is a resident in the colony. He narrated extra judicial
confession of the accused made to him in clear terms and that is
also in corroboration with the evidence of PWs 2 and 3. PW27 is
the Assistant Professor Forensic Medicine at Government
Medical College Hospital, Thiruvananthapuram who conducted
the post-mortem on the body of the deceased and Ext.P14 is the
post-mortem certificate and according to the doctor the death
was due to the injury sustained at the head and cervical spine
and he also opined that the injury can be caused by beating with
Crl.M.A.No.2 of 2021
in
Crl.A.No.113 of 2021
a stick over the head and ear.
8. So on a close evaluation of the facts and circumstances
and evidence adduced, we find there is prima facie material in
For information purpose only
support of the conviction and sentence passed against the
petitioner. In order to come to a different conclusion, a detailed
discussion of facts and circumstances and evidence is necessary.
But that is not expected at this stage.
9. In Vijay Kumar v. Narendra and Ors. [(2002) 9
SCC 364] while dealing with suspension of sentence under
Section 389(1) Cr.P.C., it has been held by the Apex Court that in
a case involving serious offences like murder, the court should
consider all the relevant factors like the nature of accusation
made against the accused, the manner in which the crime is
alleged to have been committed, the gravity of the offence and
the desirability of releasing the accused on bail after he has been
convicted for committing the offence.
10. In view of the serious nature of the offence alleged to
have been committed by the petitioner resulting in the death of
one person and the manner in which it has been committed, we
do not think that this is a fit case to grant suspension of sentence
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in
Crl.A.No.113 of 2021
to the accused.
11. In the result, petition is devoid of merit and hence
dismissed.
For information purpose only
Sd/-
K. VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
Shg JUDGE
/true copy/ Sd/- ASSISTANT REGISTRAR
