Sajith vs State Of Kerala
2023 Latest Caselaw 8116 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                     &
                   THE HONOURABLE MRS. JUSTICE C.S. SUDHA
            Monday, the 31st day of July 2023 / 9th Sravana, 1945
                CRL.M.APPL.NO.1/2022 IN CRL.A NO.1382 OF 2019
        SC NO.826/2013 OF THE ADDITIONAL SESSIONS COURT V, PALAKKAD
PETITIONER/APPELLANT:

     SAJITH, AGED 30 YEARS,
     S/O. SAKTHIVEL, KULUKKUPARA,
     KOZHINJAMBARA, CHITTUR - 678 555.

RESPONDENT/RESPONDENT:

     STATE OF KERALA
     REP. BY PUBLIC PROSECUTOR,
     HIGH COURT OF KERALA,
     ERNAKULAM - 682 031.
     (CRIME NO.534/2011 OF KOZHINJAMBARA POLICE STATION, PALAKKAD
     DISTRICT)


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence in
S.C.No.826/2013 on the files of the Additional Sessions Judge V, Palakkad,
pending disposal of the above Criminal Appeal and thus render justice.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of SRI.VISHNUPRASAD NAIR, SRI.E.VIJIN
KARTHIK, Advocates for the petitioner and of the PUBLIC PROSECUTOR for the
respondent, the court passed the following:




                                                                      P.T.O.
                P.B.SURESH KUMAR & C.S.SUDHA, JJ.
               -------------------------------------------------------
           Crl.M.A.No.1/2022 in Crl.Appeal No.1317/2019 and
            Crl.M.A.No.1/2022 in Crl.Appeal No.1382/2019
                   -----------------------------------------------
                    Dated this the 31st day of July, 2023

                                  ORDER

These applications under Section 389(1) Cr.P.C. have been

filed by the appellants/the first and the second accused (A1 and A2) in

S.C.No.826/2013 on the file of the Court of Session, Palakkad seeking

suspension of sentence.

2. As per the impugned judgment, both the accused have been

found guilty for the offence punishable under Section 302 r/w 34 IPC and

sentenced to undergo imprisonment for life and to a fine of ₹1,000/- each,

and in default of payment of fine to undergo rigorous imprisonment for one

month each.

3. Objections have been filed to the applications by the learned

Prosecutor strongly opposing the prayer for suspension of the sentence. It is

contended that in the light of the gravity, nature and the manner in which

the crime has been committed, no exceptional circumstances have been

made out warranting suspension of sentence.

4. Heard Sri.P.K.Varghese, the learned counsel appearing for the

applicant in Crl.M.A.No.1 of 2022 in Crl.Appeal.No.1317 of 2019,

Sri.Vishnu Prasad Nair, the learned counsel appearing for the applicant in Crl.M.A.No.1/2022 in Crl.Appeal No.1317/2019 and Crl.M.A.No.1/2022 in Crl.Appeal No.1382/2019

Crl.M.A.No.1 of 2022 in Crl.Appeal.No.1382 of 2022 and Sri.E.C.Bineesh,

the learned Public Prosecutor.

5. The prosecution case is that A1, on account of his previous

enmity to the deceased, along with his two close friends, namely, A2 and a

juvenile in conflict with law, decided to do away with the deceased. On

14.11.2011 at 04:00 pm, the accused persons armed with deadly weapons

like choppers and iron rods intercepted and wrongly restrained the deceased

who came on a motorcycle. They caused his death by inflicting multiple

injuries by using choppers and iron rod with the intention to kill him,

causing his death.

6. The learned counsel for the applicant contends that the

prosecution had failed to adduce any admissible evidence against the

accused and has not proved the circumstances forming a chain which can

lead to the conclusion that the accused committed the offences and the trial

court had mechanically arrived at the conclusion of convicting the accused.

7. We went through the impugned judgment. As noted by the

learned trial judge, the instant case is one where a 26-year-old young man

was hacked to death, alleged to be in retaliation of an incident that happened

an year back. The trial court has relied on several process of evidence

including circumstantial evidence and scientific evidence to arrive at the

conclusion regarding guilt of the accused persons. We do not prima facie Crl.M.A.No.1/2022 in Crl.Appeal No.1317/2019 and Crl.M.A.No.1/2022 in Crl.Appeal No.1382/2019

find any patent infirmity or illegality in the impugned judgment. It is well

settled that in considering an application for suspension of sentence, the

appellate court is only to examine if there is such patent infirmity in the

order of conviction that renders the order of conviction prima facie

erroneous. Where there is evidence that has been considered by the trial

court, it is not open to a court considering an application under Section 389

to reassess and / reanalyze the same evidence and take a different view, to

suspend the execution of the sentence and release the convict on bail. The

arguments advanced by the learned counsel for the applicants/appellants can

certainly be considered while the appeals are heard on merits. This is not a

case in which the discretion under Section 389(1) is required to be invoked.

Hence, Crl.M.A.No.1 of 2022 in Crl.Appeal.No.1317/2019 and

Crl.M.A.No.1 of 2022 in Crl.Appeal.No.1382 of 2019 shall stand dismissed.

Sd/-

P.B. SURESH KUMAR JUDGE

Sd/-

                                                          C.S.SUDHA
                                                            JUDGE
       ami/




31-07-2023                     /True Copy/                              Assistant Registrar