Kerala High Court

Sreejamol vs State Of Kerala on 11 March, 2022

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                   THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                       &
                   THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
            Friday, the 11th day of March 2022 / 20th Phalguna, 1943

                 CRL.M.APPL.NO.1/2021 IN CRL.A NO. 846 OF 2021

 SESSIONS CASE NO.872/2015 OF THE ADDITIONAL DISTRICT & SESSIONS COURT-II,
                                MAVELIKARA.

PETITIONER/APPELLANT

        SREEJAMOL, AGED 27 YEARS, D/O.SREEDEVI, LEELALAYAM VEEDU, CHUNAKKARA
        EAST, CHUNAKKARA, MAVELIKKARA, ALAPPUZHA DISTRICT.

RESPONDENT/RESPONDENT

        THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
        COURT OF KERALA, ERNAKULAM-682031.


     Application praying that in the circumstances stated therein
the High Court be pleased to suspend the execution of sentence in
S.C.No.872/2015 dated 31/8/2021 on the file of the Additional District and
Sessions Court-II, Mavelikkara and release the appellant on bail, pending
disposal of the Appeal.




     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S C.S.MANILAL, K.KARJET S.NIDHEESH,
Advocates for the petitioner and PUBLIC PROSECUTOR for respondent, the
court passed the following:




P.T.O
           K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
           ------------------------------------
     Crl.MA No.1 of 2021 in Crl.Appeal No.846 of 2021
           -------------------------------------
          Dated this the 11th day of March, 2022

                           O R D E R

Jayachandran, J.

1. Petitioner/appellant is the third accused in S.C

No.872/2015 of the Additional Sessions Court-II,

Mavelikkara. While Accused Nos. 1 and 2 were convicted

for offence under Section 302 and Section 120-B, read

with Section 34, the petitioner/A3 was convicted for

offence under Section 120-B, r/w Section 34 of the

Penal Code. The judgment is under challenge in the

above appeal.

2. The instant Criminal Miscellaneous Application is

filed under Section 389(1) of the Code of Criminal Procedure seeking suspension of execution of the order

of sentence and release of the petitioner/A3 on bail.

3. Heard Sri.C.S.Manilal, learned counsel for the

petitioner/A3 and Sri. Alex M. Thombra, learned Public

Prosecutor. Perused the records.

4. Learned counsel for the petitioner essentially

relied upon the following points in seeking suspension Crl.MA 1/2021 in Crl.A 846/2021

of the order of sentence and his release on bail.

(i) The motive alleged is not proved:-

As per the prosecution case, there was an illicit

relationship between petitioner/A3 and A1, which was

opposed by her father/deceased. Accordingly, a

conspiracy was hatched by and between the accused

persons. A sum of Rs.1,50,000/- was offered to A2, the

friend of A1 for committing murder of the deceased,

which expenditure is to be met by selling the property

of deceased and appropriating the sale proceeds

thereof. In support of the motive alleged, PW2 and PW4

were examined. However, their evidence would not

support the prosecution case in this regard. PW2 is

the brother of the deceased. It has been brought out

through PW2 that he was inimical to deceased for the

reason that he was given only a negligible share in

the family property, whereas the deceased was allotted

a larger share. It was also elicited that the deceased

was a person, who was undergoing treatment for mental

disorder for the past several years and that he is a

drunkard. The deceased used to disappear from his

house occasionally and even in respect of the last Crl.MA 1/2021 in Crl.A 846/2021

incident, the deceased left the house 3-4-5 days

before the incident. According to the learned counsel,

the evidence of PW2 would not support the motive

alleged and his knowledge about the so called illicit

relationship between the petitioner/A3 and A1 is

nothing, but hearsay. PW4 is the sister of the

petitioner/A3. According to PW4, the affair between

the petitioner/A3 and A1 was an accepted one among the

family members. She deposed that she has no suspicion

on the death of her father. A specific question

alleging motive put by the prosecution was denied by

her. She would deny the suggestion that the deceased

opposed the relationship between the petitioner/A3 and

A1. She also spoke about the enmity between PW2 and

the deceased. Besides, the evidence tendered by DW1,

the sister of the deceased, would make it clear that

the relationship between the deceased and his

daughters were cordial.

(ii) Financial transaction between the petitioner/A3

and A1 is not proved:-

The attempt of the prosecution to prove financial

transactions through PW18 - Manager of M/s.Muthoot Crl.MA 1/2021 in Crl.A 846/2021

Finance Ltd. - vide Ext.P24 series documents, did

precious little since the said documents were

inadmissible for want of certification under Section

65 B of the Evidence Act.

(iii) The call data records and S.I.M card allegedly

used by the petitioner/A3 to prove conspiracy failed

miserably:-

Learned counsel submitted that the I.M.E.I numbers

shown in Ext.P45 call data records does not tally with

the I.M.E.I numbers of the two mobile phones recovered

from the petitioner/A3. Learned counsel invited our

attention to three I.M.E.I numbers as deducible from

Ext.P45 call data records, as also, the I.M.E.I

numbers of the two phones recovered from the

petitioner, vide Exts.P13 and P14 seizure mahazars.

Inasmuch as the I.M.E.I numbers do not tally, the call

data records are of no use in connecting the

petitioner/A3 with the conspiracy alleged, submits the

learned counsel.

5. Per contra, the application was seriously opposed by Sri. Alex M.Thombra, learned Public Prosecutor. Crl.MA 1/2021 in Crl.A 846/2021

Learned Public Prosecutor invited our attention to

paragraph no.85 of the impugned judgment, wherein the

learned Sessions Judge has dealt with the motive

alleged by the prosecution. According to learned

Public Prosecutor, the evidence tendered by PW2 and

PW4, coupled with the money transfers effected through

U.A.E Exchange (evidenced by Ext.P24 series money

receipts and Ext.P25 series broad sheets, proved

through the Branch Manager of M/s.Muthoot Finance

Ltd.) pinpoints the role of petitioner/A3 in the

conspiracy, culminating in the murder of deceased. The

defence version that the petitioner/A3 advanced

Rs.2,00,000/- to A1 has been disbelieved by the

Sessions Court, having regard to the financial

background of petitioner/A3. The financial

transactions between A3 and A1 is seen supported by

PW4, who is the sister of the petitioner/A3. Learned

Public Prosecutor then invited our attention to page

nos.194 to 199 of the judgment to point out the

circumstances taken stock of by the learned Sessions

Judge in finding the guilt of accused persons,

including the petitioner herein.

Crl.MA 1/2021 in Crl.A 846/2021

6. Having heard the learned counsel appearing on

both side, we are inclined to allow this Criminal

Miscellaneous Application. Prima facie, we find force

in the contentions made by the learned counsel for the

petitioner/A3. We have perused the evidence adduced by

PW2, who is the brother of the deceased. He has not

spoken anything specifically, which would point to the

motive alleged by the prosecution. True that he

deposed to have heard sounds of quarrel from the house

of the deceased, which stems from the alleged

relationship of the petitioner/A3 with some other

person. But, the manner in which PW2 tendered evidence

in this regard is very vague, admitting a reasonable

doubt regarding his direct knowledge about the fact

deposed and therefore, incapable of inspiring

confidence in the mind of the court. Besides, it has

been elicited that the deceased was undergoing

treatment for mental disorder several times, apart

from the fact that he used to consume alcohol. In the

former statement given by PW2, he would state that due

to his mental disorder and under the spell of alcohol,

the deceased somehow fell into the river, sustained

injuries and succumbed to death. This version was, Crl.MA 1/2021 in Crl.A 846/2021

however, denied by PW2 during cross examination and

Ext.D2 contradiction is marked. PW2 would state that

the deceased left his home 3-4-5 days prior to the

date on which his body was recovered from the river.

In the said background, the defence version that the

deceased accidentally fell into the river under the

spell of alcohol and died by drowning cannot be

eschewed altogether. This is all the more so, since

PW4, another daughter of the deceased, would state

that she has no suspicion over the death of her

father. We also find from the evidence of PW4, the

sister of the petitioner/A3 that the relationship

between the petitioner/A3 and A1 was not opposed by

the family members, including the deceased. If that be

so, the prosecution version as regards motive cannot

be said to have been established by satisfactory

evidence.

7. Further, due credence will have to be attached to

the contention of the counsel for the petitioner that

I.M.E.I numbers deducible from Ext.P45 call data

records are not compatible with the I.M.E.I numbers of

the two mobile phones recovered from the Crl.MA 1/2021 in Crl.A 846/2021

petitioner/A3, wherefore, the calls alleged to have

been made by and between the petitioner/A3 and A1

cannot be taken as proved.

8. We finally take note that the petitioner/A3 is

convicted for offence under Section 120-B only, for

which the Sessions Court essentially placed reliance

upon the evidence already discussed. Inasmuch as we

find force in the contention of the learned counsel

for the petitioner, prima facie we feel that the

petitioner/A3, a woman, need not undergo

incarceration, for, the same may cause serious

prejudice and irrecoverable injury to her, if, in

case, she is ultimately found not guilty by this Court

while considering the appeal on merits. The state of

affairs as demonstrated by the evidence on record

permit a deviation from the ordinary rule which

permits suspension of sentence and release only on

exceptional circumstances.

9. In the result, this Criminal M.A is allowed. The

execution of the order of sentence as against the

petitioner/A3 is suspended and she is directed to be Crl.MA 1/2021 in Crl.A 846/2021

released on bail, subject to the following conditions:

(i) The petitioner shall be released on bail

on execution of a bond for Rs.50,000/- (Rupees

fifty thousand only), with two solvent sureties,

each for the like amount to the satisfaction of

the trial court;

(ii) From the date of her release, she shall

report before the S.H.O. concerned between 10.00

a.m. and 11.00 a.m. on every Friday starting from

18.3.2022.

(iii) She shall not involve in any offence

while on bail;

(iv) If the conviction and sentence of the

petitioner/A3 is upheld or even modified, the

time during which she is so released shall be

excluded in computing the term of her sentence as

provided in Section 389(4) Cr.PC.