Kerala High Court
Vinod vs State Of Kerala on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Thursday, the 25th day of November 2021 / 4th Agrahayana, 1943
CRL.M.APPL.NO.11/2021 IN CRL.A NO. 869 OF 2020
SC NO.239/2017 OF THE PRINCIPAL SESSIONS COURT- KOLLAM.
PETITIONER/APPELLANT NO.9/ACCUSED NO.9
SHIJU @ ELUMALA SHIJU, AGED 36 YEARS S/O RAJENDRAN, GOPALA SADANAM,
NEAR ELUMALA TEMPLE, NJARAKKALCHERI, THRIKKARUVA VILLAGE.
RESPONDENT/COMPLAINANT
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
Petition praying that in the circumstances stated therein the High
Court be pleased to suspend the execution of sentence passed against the
petitioner in S.C.No.239 of 2017 of the Court of Principal Sessions Judge,
Kollam and to release him on bail till disposal of the appeal, or at least
for a period of two months.
This petition coming on for orders upon perusing the petition and
upon hearing the arguments of B.RAMAN PILLAI (SR.), R.ANIL, M.SUNILKUMAR,
SUJESH MENON V.B., T.ANIL KUMAR, THOMAS ABRAHAM (NILACKAPPILLIL),
S.LAKSHMI SANKAR, MAHESH BHANU S Advocates for the petitioners and PUBLIC
PROSECUTOR for the respondent,the court passed the following:
p.t.o
ANNEXURE A : The true copy of the certificate dated 16/11/2021 issued from
Bishop Benziger Hospital,Kollam
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
----------------------------------------------
Crl.M.A.No.11 of 2021
&
Crl.M.A.No.12 of 2021
in
Crl.A.No.869 of 2020
---------------------------------------------
Dated this the 25th day of November, 2021
ORDER
Jayachandran, J.
The Crl.M.A. first referred above is preferred
by the 9th accused and the one second referred above is
preferred by the 7th accused in S.C.No.239/2017 of the
Principal Sessions Court, Kollam. Both applications are
preferred under Section 389(1) of the Code of Criminal
Procedure, seeking suspension of the execution of the
sentence and release of the respective petitioners on
interim bail, for the reasons adverted to in the
applications and which are discussed herein.
2. Heard learned counsel appearing for the
applicants (accused Nos. 9 and 7) and learned Public
Prosecutor. Perused the records.
3. Learned counsel for the 9th accused (petitioner
in Crl.M.A.No.11/2021) submitted that the petitioner's
mother is advised to undergo knee Surgery at the earliest
Crl.M.A.No.11 of 2021
&
Crl.M.A.No.12 of 2021
in
Crl.A.No.869 of 2020
as per Annexure-A certificate, issued from the Bishop
Benziger Hospital, Kollam, and that the presence of the
petitioner, being the only son, is unavoidable. On
merits, learned counsel pointed out that the allegation
against the petitioner/A9 is that he, along with accused
Nos. 7 and 8, have obstructed third persons from
approaching the scene of occurrence, so as to enable
smooth perpetration of the crime by accused Nos. 1 to 6.
It is also pointed out that the petitioner/A9 not armed
with any weapon.
4. Learned counsel for the 7th accused (petitioner
in Crl.M.A.No.12/2021) submitted that the petitioner's
baby aged 1 ½ years is suffering from Bilateral
Hydronephrosis, for which, the baby had undergone a
surgery on the left kidney. However, her right kidney is
also affected badly and the baby requires a surgery as
evinced by Annexure-A medical certificate.
5. Per contra, both these applications were
seriously opposed by the learned Public Prosecutor.
Crl.M.A.No.11 of 2021
&
Crl.M.A.No.12 of 2021
in
Crl.A.No.869 of 2020
6. Having heard the learned counsel appearing on
both sides, we are not inclined to allow the Criminal
Miscellaneous Applications referred above. We notice, on
a perusal of the impugned judgment, that the present
crime is the result of gang wars between two groups of
goons. There were attacks and counter attacks.
7. Going by the prosecution case, the deceased in
the instant crime, one Rajesh and his friends stabbed
accused Nos. 1 and 2 herein, in retaliation of which,
accused Nos. 1 and 2 and their associates attempted to do
away with the deceased Rajesh. He, however, escaped
miraculously, though with serious injuries. In
reciprocation, the said Rajesh attempted to kill one Arun
M.S., a close ally, of accused Nos. 1 and 2 herein. It is
in culmination of the above referred attacks and counter
attacks that the instant crime was committed, wherein the
said Rajesh was hacked to death.
8. Upon consideration of the present applications
in the backdrop of the above referred circumstances, we
Crl.M.A.No.11 of 2021
&
Crl.M.A.No.12 of 2021
in
Crl.A.No.869 of 2020
are not inclined to allow these applications. A perusal
of the impugned judgment (See Page No.141) would indicate
that the 9th accused was in judicial custody only from
10.11.2012 to 07.01.2013 and thereafter from 10.02.2020
up to 22.02.2020. Similarly, A7 was in judicial custody
only from 18.02.2012 to 19.05.2012 and thereafter from
10.02.2020 up to 22.02.2020. The above Crl.Appeal is of
the year 2020. It could thus be seen that the both the
petitioners have not served the sentence of imprisonment
even for a reasonable period.
9. That apart, we are of the view that knee
Surgery suggested for the mother of A9 is not a life
threatening situation and the petitioner's case is only
to the effect that there exists no male member in the
family to take care of the situation, which would
obviously mean that there are female members, possibly
the sisters of the petitioner or other relatives of the
petitioner's mother. In the case of A7, an application
for interim bail vide Crl.M.A.No.9/2021, preferred on the
Crl.M.A.No.11 of 2021
&
Crl.M.A.No.12 of 2021
in
Crl.A.No.869 of 2020
self same ground was allowed vide order dated 25.10.2021,
suspending the sentence for a period of one month.
Therefore, successive applications for interim bail
within a short span on the same ground can hardly be
entertained.
For the reasons stated above, the Criminal
Miscellaneous Applications referred above are dismissed.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
NR/25/11/2021
25-11-2021 /True Copy/ Assistant Registrar
