Tuesday vs Ajesh
2021 Latest Caselaw 8024 Ker

Crl.M.Appl/2/2019 IN CRL.A 1406/2019      1/7



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       Present:
               THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                         &
                    THE HONOURABLE MRS. JUSTICE M.R.ANITHA

                 Tuesday,the 9th day of March 2021/18th Phalguna, 1942
      For information             purpose only
              Crl.M.Appl/2/2019 IN CRL.A/1406/2019
     S.C.NO.601/2016 OF THE ADDITIONAL SESSIONS COURT -III, ALAPPUZHA

APPELLANTS/ACCUSED NO.4 & 5
1.           AJESH,AGED 27 YEARS
       OCC. MAZON, S/O.CHANDRAN, MELEPOKKATHUCHIRA, WARD NO.22,
       THANNEERMUKKAearch:M PANCHAYATH, VARANADU P.O.,
       CHERTHALA, ALAPUZHA DISTRICT. (PRESENTLY LODGED AT CENTRAL
       PRISON, POOJAPPURA, THIRUVANANTHAPURAM).
2.       VIJESH,,AGED 32 YEARS
       OCC.DRIVER, S/O.CHANDRAN, MELEPOKKATHUCHIRA, WARD NO.22,
       THANNEERMUKKAM PANCHAYATH, VARANADU P.O., CHERTHALA,
       ALAPUZHA DISTRICT. (PRESENTLY LODGED AT CENTRAL PRISON,
       POOJAPPURA, THIRUVANANTHAPURAM).
RESPONDENT/COMPLAINANT
       STATE OF KERALA
       REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
       ERNAKULAM, KOCHI-682 018.

        Petition praying that in the circumstances stated therein the High Court
be pleased to suspend the sentence imposed in the Applicants by the judgment of
guilty, conviction and sentence in S.C.No.601 of 2019 dated on 03.08.2019 on the
files of the 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 SRI. T.U.SUJITH KUMAR, Advocate for the petitioners
and the PUBLIC PROSECUTOR for the respondent,                the court passed the
following
 Crl.M.Appl/2/2019 IN CRL.A 1406/2019   2/7




                 P.T.O




    For information purpose only
                 K.VINOD CHANDRAN & M.R.ANITHA, JJ.
             ----------------------------------------
                      Crl. M.A. No.2 of 2019
                                 In
                   Crl.Appeal No.1406 of 2019 A
             ----------------------------------------
      For information purpose only
               Dated this the 9th day of March, 2021

                                     O R D E R

K.Vinod Chandran, J.

The appeal is from a judgment convicting

accused Nos.1 to 5 and acquitting 6 to 8 in

S.C.No.601/2016 on the files of the District &

Sessions Court-III, Alappuzha. A1 to A5 were sentenced

to Rigorous Imprisonment (RI) for life and fine of

Rs.1 lakh under S.302, RI for 6 months under S.143, RI

for one year under S.147, RI for two years under

S.148, RI for one year under S.149, RI for ten years

under S.120(B) of the Indian Penal Code, which

substantive sentences were to run concurrently and

appropriate default sentences on failure of payment of

fine imposed

2. The petitioners in the above appeal are

the A4 & 5. The prosecution case was that the

appellants, along with three others, while travelling Crl. M.A. No.2 of 2019

Crl.Appeal No.1406 of 2019 A

in a lorry, intentionally caused the death of two

motorcycle riders. The evidence led included the

For information purpose only eyewitness testimonies of PW3, 7 & 8 . The learned

counsel for the petitioners/appellants submitted that

there is absolutely no cause for implicating the

appellants herein. The evidence led by the prosecution

is sketchy insofar as the involvement of the

appellants.

3. The learned Public Prosecutor, however,

vigorously opposed the prayer and specifically pointed

out the deposition of PWs 3,7 & 8, which is produced

in a connected appeal. We have gone through the

evidence of PWs 3,7 & 8. PW3 says that while he was

standing in the bus stop, he saw a lorry coming and he

identified the person sitting on the left side as also

in the driving seat. The person on the left side

shouted at the driver to hit the bike going just in

front. The lorry was suddenly jerked in that

direction, to hit the bike, causing the death of both

riders in the bike. The witness also says that he ran

away since the lorry came towards him, but he says Crl. M.A. No.2 of 2019

Crl.Appeal No.1406 of 2019 A

that he saw the other three people sitting in the

cabin of the lorry. In chief examination PW3 admits

For information purpose only that he identified them when they were brought to the

spot of occurrence later on 06.12.2015 by the Police

after their arrest. PW7 also speaks of having seen the

accident and identified A1 as also described the

driver. His evidence is that he saw 3 or 4 people

other than A1 sitting in the lorry. There is no

identification of A4 & A5. PW8 is the person, who was

with PW7 and who accompanied him in the bike after the

accident. PW7 & 8 say that the bike slipped on the

road and they fell down and hence they could not

apprehend the tipper lorry.

4. As far as Section 120B of the Indian Penal

Code [IPC] is concerned, the allegation is that A1 to

A5 were found in a toddy shop, seriously talking about

something and later four among them left the shop

asking the shop-owner to collect the money from the

5th person. However, the 5th person did not pay the

bill and left the toddy shop. The mere fact that they

were seen together, according to us, on a prima facie Crl. M.A. No.2 of 2019

Crl.Appeal No.1406 of 2019 A

consideration cannot attract Section 120B IPC. In the

totality of the circumstances, we are of the opinion

that For information purpose only the sentence of A4 & A5, the appellants in

Crl.No.1406 of 2019, has to be suspended till the

disposal of the appeal on the following stringent

conditions. We make it clear that the observation herein

above are prima facie in nature for consideration of

suspension of sentence alone.

(1) Petitioners/appellants/accused 4&5 shall

be released on bail on executing a bond for

Rs.50,000/- (Rupees fifty thousand only) each

with two solvent sureties for the like sum

each to the satisfaction of the trial Court.

(2) From the date of their release, they

shall appear before the Police Station

concerned on every Monday between 9.00 am

and 10.00 am.

(3) They shall not involve in any offence

while on bail.

(4) They shall surrender their passport

before the lower Court concerned and if they

do not have a passport, shall file an Crl. M.A. No.2 of 2019

Crl.Appeal No.1406 of 2019 A

affidavit to that effect undertaking not

to leave the Country; within five days of

For information purpose only their release.

Sd/-

K. VINOD CHANDRAN JUDGE

Sd/-

M.R.ANITHA JUDGE

shg/sp/09/03/2021

/true copy/ Sd/- ASSISTANT REGISTRAR