Binu vs The State Of Kerala
2022 Latest Caselaw 8736 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                   THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                       &
                   THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
             Thursday, the 7th day of July 2022 / 16th Ashadha, 1944

                 CRL.M.APPL.NO.1/2021 IN CRL.A NO. 262 OF 2021

S.C.NO.737/2013 OF THE ADDL. DISTRICT & SESSIONS COURT-VI, THIRUVANANTHAPURAM.

 APPELLANT/ACCUSED NO.1

       BINU AGED 34 YEARS S/O.MOHANAN, KARUNYA BHAVAN, AMPADI NAGAR, STREET
       NO.4, ALATHARA, PONGUMMOODU WARD, CHERUVAIKAL VILLAGE,
       THIRUVANANTHAPURAM DISTRICT.

 RESPONDENT/COMPLAINANT

       THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
       OF KERALA, ERNAKULAM, PIN - 682 031.


      Application praying that in the circumstances stated therein the
 High Court be pleased to issue an interim order suspending the execution
 of the sentence imposed on the petitioner in S.C.No.737/2013 on the file
 of Addl. Sessions Court-VI, Thiruvananthapuram ordering him release on
 bail, pending final disposal of the above criminal appeal.




      This Application coming on for orders upon perusing the application
 and upon hearing the arguments of M/S SALIM V.S., A.M.FOUSI, Advocates for
 the petitioner and PUBLIC PROSECUTOR for the respondent, the court passed
 the following:




     p.t.o
 Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

                                              1



           K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
      ----------------------------------------------
                    Crl.M.A.No.1 of 2021
                             in
                    Crl.A.No.262 of 2021
       ---------------------------------------------
            Dated this the 7th day of July, 2022

                                      O R D E R

Jayachandran, J.

1. Petitioner/appellant herein is the first accused

in S.C.No.737 of 2013 of the Additional Sessions Court-

VI, Thiruvananthapuram. As per the judgment impugned in

the above appeal, the petitioner/first accused was

convicted for offences interalia under section 302 of the

Penal Code and was sentenced to undergo imprisonment for

life. The second accused, who is the father of the first

accused was, however, acquitted.

2. The instant criminal miscellaneous application is

preferred under Section 389 of the Code of Criminal

Procedure seeking suspension of execution of the sentence

and release of the petitioner on bail, pending disposal Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

of the above criminal appeal.

3. Heard Sri.V.S.Salim, learned counsel for the

petitioner/appellant and Sri.Alex M. Thombra, learned

Public Prosecutor. Perused the records.

4. According to prosecution, the deceased was the

driver of an autorikshaw owned by the second accused and

he was working on daily wages. According to the

prosecuiton, the deceased quarrelled with the second

accused on 05.09.2010 at 10p.m., after the day's work.

The deceased came drunk and asked for the key of the

autorikshaw, which the second accused refused. After

abusing the second accused with obscene words, the

deceased slapped him. On the next day morning also, the

deceased came to the second accused with the same demand,

which was again refused. The deceased shouted abuses at

the second accused again, to which, the second accused

retorted that he will show him at the evening. On

06.09.2010 at 3.30p.m., the first accused, at the

instigation of the second accused trespassed into the

residential house of the deceased, with a knife. The Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

first accused had a scuffle with the deceased in the hall

room and he stabbed beneath the lower abdomen of the

deceased, to which, the deceased succumbed. The accused

persons have thus committed the offences enumerated

above, according to the prosecution.

5. Learned counsel for the prosecution assailed the

judgment impugned, essentially on three premises. The

first is that, PWs.1 and 2, whose ocular evidence has

been taken stock of by the Sessions Court, were not in

fact present at the time of occurrence at the relevant

time, which has been elicited in the cross examination of

PW2. Secondly, the nature of the weapon was not referred

to in the first information statement. Besides, the

weapon, MO3, was recovered from an open place, which

recovery is not supported by the witness to the mahazar.

Thirdly, learned counsel contended that, although MO3

weapon was sent for chemical examination, the blood group

corresponding to the stains in MO3 weapon was not

detected.

6. Per contra, this application was seriously Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

opposed by the learned Pubic Prosecutor. According to

him, the judgment impugned is a reasoned one, wherein the

ocular evidence tendered by the eye witnesses have been

taking stock of, wherefore, the same is not liable to be

suspended.

7. We will now address the points raised by the

learned counsel for the petitioner/appellant. In the

context of the first point raised, we perused the

evidence tendered by PWs.1 and 2. PW1 is the sister of

the deceased Jose @ Kunjumon and PW2 is her husband. A

suggestion was seen put to PW1 to the effect that, on the

fateful day by 2 p.m., PWs.1 and 2 went out to meet

Dr.Shylaja, which, however, is seen negated by the

witness. It is elicited that, PW1 was a full term

pregnant lady at the time of incident and that, she was

under the treatment of Dr.Shylaja. A further suggestion

is seen put to PW1 that, she is telling falsehood that

the consultation time of Dr.Shylaja is in the morning.

Another suggestion was that, PWs.1 and 2 came back after

consulting Dr.Shylaja only by 4 p.m., which is also Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

denied by PW1.

8. PW2 was cross examined to elicit that, he used to

come to his wife's house once in a week and that, he used

to take appointment with Dr.Shylaja during such visit.

It was further elicited that, PW2 came to his wife's

parental home on the fateful day for the purpose of

consulting Dr.Shylaja. However, to a crucial suggestive

question that he left the house along with PW1, to

consult the doctor by afternoon is specifically denied by

PW2, by answering that he did not go since the death took

place. There exists some confusion in the immediately

following portion of the deposition, which is extracted

here below.

"വവൈകകീടട്ട് 4 മണണി കഴണിഞഞ്ഞാണ് ഞഞ്ഞാനനനും ഭഞ്ഞാരര്യയനനും Dr.Shylaja യയ

കണണിടഞ്ഞാണന വൈകീടണിലലേകന മടങണി എതണിയത് എനന പറയനനന.

The learned PP interferes and the witness adds.

Date ലചഞ്ഞാദണിചണിലേല. അതനയകഞ്ഞാണഞ്ഞാണ് അങയന പറഞത്.

അതനയകഞ്ഞാണഞ്ഞാണ് അങയന പറഞത്."

Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

9. Having perused the above question/answer, it is

not clear whether the above deposition recorded by the

Sessions Judge is strictly a question or an answer. On

the beginning portion of the statement, the language

employed in first person (ഞഞനനന); however, towards the end

of the statement, a suggestion is discernible (എനന

പറയനനന), suggestive of a question. However, from the

subsequent answer, that he deposed so since the date was

not specified, affords a reasonable inference that the

witness had deposed that, he came back after 4 p.m. on

the crucial date. We, in any case, is not inclined to

take the above deposition as a clear and unmistakable

admission on the part of PW2, so as to rule out the

presence of PWs.1 and 2 at the scene of occurrence at the

relevant time. The possibility of the witness being

misled or misconceived by the question very much writ

large. That statement cannot be picked up in isolation to

undo the effect of rest of the facts deposed by PW2.

10. The second contention is that the nature of the

weapon is not specified in the first information Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

statement. Having regard to the scope of the present

application under section 389 Cr.P.C., we do not deem it

as fatal, so as to frown upon the judgment of conviction

impugned. That apart, PW1 had a plausible explanation at

page No.13 that, she could not notice the nature of the

weapon in the melee on account of the scuffle between the

first accused and the deceased. The third and last

contention is that, the blood group corresponding to

stain found in MO3 weapon could not be identified in

chemical examination. Here also, we do not find any

serious infirmity, especially, since the case at hand is

one, where conviction is entered into on the basis of the

evidence tendered by eye witnesses, namely PWs1 and 2;

and not on the basis of circumstantial evidence. We find

no serious infirmity to the judgment impugned, prima

facie.

11. As it is well settled, the benefit of suspension

can be granted only in exceptional cases when conviction

is made for grievous offences like the one under Section

302 of the Indian Penal Code. (See in this regard Vinay Crl.M.A.No.1 of 2021 in Crl.Appeal.No.262 of 2021

Kumar v. Narendra [(2002)9 SCC 364]; Ramji Prasad v.

Rattan Kumar Jaiswal [(2002)9 SCC 366] and Anil Ari v.

State of West Bengal [AIR 2009 SC 1564]. We cannot find

any exceptional circumstances warranting suspension of

execution of the order of sentence and release of the

petitioner.

We, therefore, dismiss the instant miscellaneous

application.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE

Sbna/

07-07-2022 /True Copy/ Assistant Registrar