Shereef @ Kattarabi vs State Of Kerala
2023 Latest Caselaw 1493 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
          Friday, the 20th day of January 2023 / 30th Pousha, 1944
               CRL.M.APPL.NO.1/2022 IN CRL.A NO. 1253 OF 2022
                   SC 565/2014 OF SESSIONS COURT,THRISSUR
APPLICANT/APPELLANT:

     SHEREEF @ KATTARABI, AGED 53 YEARS ,S/O.HAMSA, NALAKATH HOUSE,
     IRINGAPPURAM DESOM, POOKKOD VILLAGE, CHAVAKKAD, THRISSUR, PIN -
     680505

RESPONDENT/RESPONDENT:

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


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the applicant by
the judgment , conviction and sentence in S.C.No.565/2014 of the Court of
Sessions Judge ,Thrissur , dated 24.11.2022 and release the applicant on
bail pending disposal of the above criminal appeal.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of SRI. V.A.JOHNSON (VARIKKAPPALLIL),
Advocate for the petitioner and of the PUBLIC PROSECUTOR for the
respondent, the court passed the following:




       p.t.o
 Crl.A.No.1253/22
                                            1



                         ZIYAD RAHMAN A.A., J.
                        -----------------------------------------
                            Crl.A.No.1253 of 2022
                                           &
                            Crl.M.A.No.1 of 2022
                        -----------------------------------------
                   Dated this the 20th day of January, 2023

                                     ORDER

Admit. Learned Public Prosecutor takes notice for the

respondent.

Crl.M.A.No.1 of 2022

This is an application to suspend the sentence imposed upon

the petitioner. The learned Public Prosecutor opposed the

application for suspension of sentence on the ground that the

appellant was found guilty for the offences punishable under

Section 304 Part II of IPC and was sentenced to undergo rigorous

imprisonment for ten years. It is also contended that, he is

involved in six other cases and the details of the same were also

furnished, which are as follows:

"1) Guruvayur Police Station Cr 750/2005 U/s 452, 294(b), 506(1), 34 IPC.

2) Guruvayur Police Station Cr 607/2007 U/s 448, 341, 326, 325, 354 IPC.

Crl.A.No.1253/22

3) Guruvayur Police Station Cr 871/2015 Us 324, 506(i), 34 IPC.

4) Guruvayur Police Station Cr 918/2015 U/s 107 Cr.P.C.

5) Guruvayur Police Station Cr 262/2017 U/s 341, 324 IPC.

6) Guruvayur Police Station Cr 316/2017 U/s 110(e) Cr.P.C.

2. I have gone through the judgment impugned in this

appeal. It is seen from the records that, this is a case where no

direct evidence is available. The case is one based on

circumstantial evidence, where each chain of the circumstances is

to be proved. In this case, the prosecution relied on "last seen

theory", since the accused and deceased were allegedly found

together before the incident. This case was put forward based on

the Ext P4 CCTV footage. However, the trial court did not accept

the same, as it was produced without any certification under

section 65B of the Evidence Act, and the case based on the last

seen theory was discarded.

3. However, the accused was found guilty by the court on

the ground that certain articles belonged to the deceased, such as

MOs 1 to 4 i.e. Jeans, T-Shirt, purse and mobile phone

respectively, were recovered from the house of the accused, on the Crl.A.No.1253/22

basis of his confession statement and the said articles were

identified by PW1, the brother of the deceased. The contention of

the learned counsel for the petitioner is that, the conviction on the

sole basis of the same is not safe. After perusing the records, I find

some force in the said contention. Since , the case is based on

circumstantial evidence, all the sequence of events which led to

the incident have to be proved in such a manner as to rule out all

hypotheses of the innocence the accused. In this case even if, the

recovery of the MOs were accepted, it is doubtful as to whether

that by itself would conclusively prove that the injuries which

resulted in the death of the deceased were inflicted by the

accused. In such circumstances, there is still a shadow of doubt

and hence it is required to be examined in detail, on the basis of

the records. Therefore, I am of the view that continued detention

of the appellant in such circumstances until the said question is

decided would not be proper. Since this court found a prima facie

case in favour of the appellant, after considering the merits of the

case, the significance of the criminal antecedents is lost.

Crl.A.No.1253/22

Moreover, on the ground of antecedents alone, the imprisonment

of the appellant cannot be permitted to be continued.

In such circumstances, taking note of the above aspects, I am

of the view that, the sentence imposed upon the petitioner can be

suspended during the pendency of this appeal. Thus, it is ordered

that the sentence imposed by the learned Sessions Judge shall

stand suspended upon the petitioner executing a bond for

Rs.2,00,000/- (Rupees two lakhs only) with two solvent sureties

each for the like sum to the satisfaction of the Sessions Court,

Thrissur.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/20.1.23

20-01-2023 /True Copy/ Assistant Registrar