Kerala High Court
P.Ibrahim @ Ibrayi vs State Of Kerala on 14 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
Tuesday, the 14th day of June 2022 / 24th Jyaishta, 1944
CRL.M.APPL.NO.1/2022 IN CRL.REV.PET NO. 4576 OF 2007
CRA 151/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA
SC 166/2000 OF ASSISTANT SESSIONS COURT, SULTHANBATHERY
APPLICANTS/REVISION PETITIONER
[email protected], AGED 52 YEARS, S/o
MOIDEEN,THANIKKALVEEDU, AMBILERI,KALPETTA,WAYANAD 673121
2.K.PRAKASAN,AGED 53 YEARS,S/O CHATHU KURUP,KUNIYIL
VEEDU,MUTHUVANA,VADGARA TALUK,KOZHIKODE-673541
RESPONDENT/RESPONDENT
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,HIGH COURT.P.O, ERNAKULAM-682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction imposed on the
applicants/revision petitioners vide judgment dated 30-11-2007 in
Crl.Appeal No.151/2005 on the files of the Court of the Additional
Sessions Judge,Fast Track(ADHOC-II),Kalpetta filed against the judgment of
guilty conviction and sentence dated 12-07-2005 in S.C.No.166/2000 of the
Court of the Assistant Sessions Judge,Sulthan Bathery,pending disposal of
the above Criminal Revsion Petition in the interests of justice.
This Application coming on for orders upon perusing the
application,and upon hearing the arguments of P.VIJAYA BHANU
(SR.),(K/421/1984),SRI.JACOB ABRAHAM, SRUTHY N BHAT,
M.REVIKRISHNAN(K/1268/2004), P.M.RAFIQ(K/45/2001), RAHUL
SUNIL(K/000608/2017), AJEESH K.SASI(K/166/2006), SRUTHY K.K(K/117/2015),
Advocates for the petitioners,PUBLIC PROSECUTOR for the respondent,the
court passed the following:
ZIYAD RAHMAN A.A., J.
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Crl. Rev. Pet. No. 4576 Of 2007
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Dated this the 14th day of June, 2022
O R D E R
Crl.M.A 1 of 2022
In this petition, the petitioners who are the revision petitioners are
seeking an order suspending the conviction imposed upon them, as per the
judgment impugned in this case. The petitioners were implicated in the
aforesaid crime for the offences punishable under sections 323 and 304 r/w 34
of IPC. The prosecution case is that, the petitioners herein, who were the
police constables in Meppadi police station, on 19-02-1999 at 12 noon, while
they were on duty, had intercepted the deceased and when he attempted to run
away the first petitioner hit him on his vertebra with his elbow and the second
petitioner beat him with hands. Subsequently, on 26.11.1999 the victim died
and it is the case of the prosecution that the death was on account of the
injuries sustained by him due to the assault made by the petitioners herein.
2. Upon completion of the trial, both the petitioners were found
guilty under sections 323 and 304 of IPC. Accordingly, they were sentenced to
Crl. Rev. Pet. No. 4576 Of 2007
undergo simple imprisonment for five years under section 304 and simple
imprisonment for six months for the offence punishable under Section 323 of
IPC. In the appeal filed, the Additional Sessions Court (Adhoc) -II Kalpetta
confirmed the finding of guilty for the offence under section 304 IPC, but they
were acquitted for the offence punishable under section 323 of IPC. The
sentence imposed upon the petitioners was also reduced to simple
imprisonment for three years. Challenging the aforesaid conviction and
sentence, the appellant, this revision petition is filed.
3. This Court already suspended the sentence imposed upon the
petitioners as per the order dated 19.12.2007. Now the petitioners have
submitted the present application seeking suspension of the conviction as well.
In support of the said contention, the learned counsel for the petitioners places
reliance upon the order dated 20-07-2005 passed by this Court in Crl.M.C No.
288/2005, by which the conviction imposed by the trial court, against the
petitioners was stayed by this court, pending appeal before the Sessions court.
The aforesaid Crl.M.C was submitted by the petitioners herein, challenging the
order passed by the appellate court in the application for suspending the
conviction and sentence, when they moved the appeal against the conviction.
As per the order impugned in Crl.MC No 288/2005, the Appellate Court,
though allowed the prayer for suspending the sentence, the prayer for
Crl. Rev. Pet. No. 4576 Of 2007
suspending the conviction was dismissed. In the said Crl. M.C, this court,
after considering the factual circumstances and the nature of allegations as well
as the materials available on record, passed an order suspending the
conviction. Now it is pointed out that the lack of an order suspending the
conviction of the petitioner during the pendency of the revision petition is
causing much prejudice to them because it is resulting in the denial of certain
service benefits attached to their employment. This Crl.M.A is filed in such
circumstances.
4. Heard both sides and perused the records.
5. The allegation against the petitioners is that of an assault of the
victim and consequent to the injuries sustained in such assault, the victim died.
It is also evident that the incident, which is the subject matter of this case,
occurred on 19-02-1999, and the death happened on 26-11-1999, which was
almost ten months after the incident. The crucial question that arises is, taking
note of the circumstances under which the alleged assault was made, the nature
of injuries, and also the fact that the death of the victim occurred after ten
months of the assault, whether such acts can be treated as something which was
done with the intention to commit culpable homicide not amounting to murder.
Considering the criminal acts allegedly committed by the petitioners, I find
prima facie, some force in the contention of the petitioners that the materials do
Crl. Rev. Pet. No. 4576 Of 2007
not establish that the aforesaid acts were committed with an intention to commit
murder. It is true that both the courts below arrived at a finding that the
petitioners are guilty of the offence under section 304 of IPC. However, since
the revision petition challenging the said finding is already admitted and is
pending, the said question is a matter to be considered in detail. During the
pendency of the appeal, the finding of conviction of the petitioners stood
suspended by virtue of the order passed by this court . In such circumstances, I
am of the view that the said benefit can be continued even during the pendency
of this revision petition also.
In such circumstances, this Crl.M.A is allowed, and the order of
conviction of the petitioners herein as per judgment in Crl. Appeal 151/2005
dated 13-11-2007 and the judgment passed by the Assistant Sessions Court,
Kalpetta in S.C No. 166 of 2000, shall stand stayed during the pendency of this
revision petition.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
KVT
14-06-2022 /True Copy/ Assistant Registrar
