Joseph @ Thankachan vs State Of Kerala
2023 Latest Caselaw 3804 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
                   THE HONOURABLE MRS. JUSTICE C.S. SUDHA
         Thursday, the 30th day of March 2023 / 9th Chaithra, 1945
               CRL.M.APPL.NO.1/2022 IN CRL.A NO.454 OF 2021

             SC NO.450/2017 OF THE SESSIONS COURT, THODUPUZHA

PETITIONER/APPELLANT/ACCUSED:

     JOSEPH @ THANKACHAN, AGED 64 YEARS,
     S/O.JOSEPH, KOODAPPATU HOUSE,
     KUNTHALAMPARA KARA, KATTAPPANA VILLAGE,
     IDUKKI DISTRICT 685 508.

RESPONDENT/RESPONDENT/COMPLAINANT:

     STATE OF KERALA
     REPRESENTED BY THE STATION HOUSE OFFICER,
     KATTAPPANA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR,
     HIGH COURT OF KERALA. (CRIME NO.501/2017 OF KATTAPPANA POLICE
     STATION).


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence against the
appellant till the disposal of this Crl.Appeal and release the
appellant/accused on bail on any strict condition.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.PADMALAYAN P.P., P.RAHIM, Advocates
for the petitioner and of SRI. ALEX M. THOMBRA, PUBLIC PROSECUTOR for the
respondent, the court passed the following:




                                                                     P.T.O.
              ALEXANDER THOMAS & C.S.SUDHA, JJ.
             ----------------------------------------------------------
           Crl.M.A.No.1 of 2022 in Crl.Appeal No.454 of 2021
             ----------------------------------------------------------
                   Dated this the 30th day of March, 2023



                                  ORDER

C.S.Sudha, J.

This application under Section 389(1) and (2) Cr.P.C. has been

filed by the sole accused/appellant in the aforesaid Crl.Appeal seeking

suspension of sentence passed in S.C.No.450/2017 on the file of the Court of

Session, Thodupuzha.

2. As per the impugned judgment, the applicant/accused has

been sentenced to imprisonment for life and to a fine of ₹10,000/- and in

default of payment of fine to undergo rigorous imprisonment for two years

for the offence punishable under Section 302 IPC. He has also been

sentenced to rigorous imprisonment for two years and to pay a fine of

₹5,000/- and in default of payment of fine to suffer rigorous imprisonment

for six months for the offence punishable under Section 354 IPC. The

substantive sentences have been directed to run concurrently. Crl.M.A.No.1 of 2022 in Crl.Appeal No.454 of 2021

3. This application for suspension of sentence is opposed by the

learned Public Prosecutor.

4. Heard Sri.P.P.Padmalayan, the learned counsel for the

applicant and Sri.Alex M.Thombra, the learned Public prosecutor.

5. The prosecution case is that the accused with the intention to

outrage the modesty of PW2, the daughter of Bharathi Balan, the deceased,

caught hold of her hand and made advances involving unwelcome and

explicit sexual overture and made demand for sexual favours in the

courtyard of the kitchen of her house. PW2, objected to this behaviour of

the applicant/accused. Bharathi Balan, the father of PW2, went to the scene

on hearing the commotion. There was an altercation between Bharathi Balan

and the applicant/accused. CW1 (Sijimon) and PW3, the husband of PW2

intervened, pacified the accused, who left the place threatening Bharathi

Balan with dire consequences. Later, on the same day at about 04.30 p.m,

the applicant/accused came to the road in front of the house of Bharathi

Balan and called him outside the house. When Bharathi Balan went outside,

there was an altercation with the accused, during the course of which, the

accused stabbed Bharathi Balan on his chest causing injury resulting in his

death. Hence, the accused was charged for having committed the offences

punishable under Sections 354, 354 A, 506 (i) and 302 IPC. Crl.M.A.No.1 of 2022 in Crl.Appeal No.454 of 2021

6. It was submitted by the learned counsel for the

applicant/accused that CW1 is the actual culprit. There was some disputes

between CW1(Sijimon) and the applicant/accused relating to carrying out

some masonry works in the house of PWs2 and 3. In this incident, Bharathi

Balan had beaten the applicant/accused with his walking stick at which time,

the latter had pushed the former down. Seeing this CW1 (Sijimon) rushed to

the scene with a knife and in the scuffle that ensued, the knife accidentally

hit Bharati Balan, resulting in an injury causing his death. Therefore, the

argument advanced is that the applicant/accused is innocent of the offecnes

alleged against him and that it was only to save CW1, the prosecution

witnesses have spoken falsehood against him.

7. We went through the entire impugned judgment. We do not

prima facie find any patent infirmity or illegality. As held in Preet Pal

Singh v. State of Uttarpradesh, (2020)8 SCC 645, 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 Crl.M.A.No.1 of 2022 in Crl.Appeal No.454 of 2021

release the convict on bail. There is a difference between grant of bail under

S.439 CrPC in case of pre - trial arrest and suspension of sentence under

S.389 CrPC and grant of bail, post-conviction. In the former case, there may

be presumption of innocence, which is a fundamental postulate of criminal

jurisprudence, and the courts may be liberal, depending on the facts and

circumstances of the case, on the principle that bail is the rule and jail is an

exception. However, in case of post-conviction bail, by suspension of

operation of the sentence, there is a finding of guilt and the question of

presumption of innocence does not arise. Nor is the principle of bail being

the rule and jail an exception attracted, once there is conviction upon trial.

The Court considering an application for suspension of sentence and grant of

bail, is to consider the prima facie merits of the appeal, coupled with other

factors. There should be strong compelling reasons for grant of bail,

notwithstanding an order of conviction, by suspension of sentence, and this

strong and compelling reason must be recorded in the order granting bail, as

mandated in Section 389(1) Cr.P.C. As the discretion under Section

389(1) is to be exercised judicially, the appellate court is obliged to consider

whether any cogent ground has been disclosed, giving rise to substantial

doubts about the validity of the conviction.

Crl.M.A.No.1 of 2022 in Crl.Appeal No.454 of 2021

We do not find any merit in this application and hence the same

is dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

                                                     C.S. SUDHA, JUDGE



       Jms/30.3




30-03-2023                           /True Copy/                         Assistant Registrar