Kerala High Court
Shybu @Appuni vs State Of Kerala on 5 April, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Friday, the 5th day of April 2024 / 16th Chaithra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1071 OF 2022
SC 404/2015 OF THE ADDITIONAL SESSIONS COURT-I,MAVELIKKARA
APPLICANT/APPELLANT NO.2:
SHIBU, AGED 30 YEARS, S/O. XAVIER, RESIDING ON RENT AT, KAVINTE
PADEETTATHIL, SANTHI BHAVAN, ERUVA EAST MURI, ALAPPUZHA DISTRICT -
690572 FROM: BIJU BHAVANAM, KAIPPALLIL VEEDU, KANNAMANGALAM SOUTH
MURI, KANNAMANGALAM VILLAGE,
ALAPPUZHA DISTRICT, PIN - 690106.
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence and fine imposed by the
trial court by the impugned judgment dated 14.10.2022 in S.C.No.404/2015
of the court of the Additional Sessions Judge - I, Mavelikkara, in the
interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.P.VIJAYA BHANU (SR.),NIKITA J.
MENDEZ, P.M.RAFIQ, M.REVIKRISHNAN, AJEESH K.SASI, SRUTHY N. BHAT, RAHUL
SUNIL, SRUTHY K. K., Advocates for the petitioner and of the PUBLIC
PROSECUTOR for the respondent, the court passed the following:
P.T.O.
P.B.SURESH KUMAR & S.MANU, JJ.
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Crl.M.Appln.No.1 of 2024 in
Crl.Appeal No.1071 of 2022
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Dated this the 05th day of April, 2024
ORDER
S.MANU, J.
The fourth accused in S.C.No.404 of 2015 of the
Additional Sessions Court-I, Mavelikara is seeking
suspension of sentence imposed on him in this Crl.M.A. In
the appeal, he is the second appellant.
2. The petitioner, along with other accused, who are
his father, mother and brother, have been found guilty of
the offences under Sections 447, 323, 506(ii), 452 and 302
read with Section 34 of IPC by the trial court. The petitioner
has been sentenced to undergo rigorous imprisonment for
three months and to pay fine of Rs.500/- for the offence
punishable under Section 447 read with Section 34 of the
IPC with default sentence of one week. For the offence
under Section 323 read with Section 34 of the IPC the
punishment imposed is rigorous imprisonment for one year.
For the offence under Section 506(ii) read with Section 34 of
Crl.M.Appln.No.1 of 2024 in
the IPC the petitioner has been sentenced to undergo
rigorous imprisonment for seven years. For the offence
under Section 452 read with Section 34 of the IPC also he
has been sentenced to undergo rigorous imprisonment for
seven years and also to pay fine of Rs.10,000/- with default
sentence of rigorous imprisonment for one month. For the
offence under Section 302 read with Section 34 of the IPC
the petitioner has been sentenced to undergo imprisonment
for life and also to pay fine of Rs.1,00,000/-. In default of
payment of fine he has been sentenced to undergo rigorous
imprisonment for one year.
3. The petitioner was initially arrested, during the
crime stage on 5.2.2015 and was released on bail on
26.8.2015. He is undergoing imprisonment since
14.10.2022, the date of judgment of the Additional Sessions
Court-I, Mavelikara.
4. Sri.P.Vijayabhanu, learned Senior Counsel
appearing for the petitioner submitted that the offences
alleged against the petitioner have not been proved during
the trial. He points out that the petitioner allegedly reached
Crl.M.Appln.No.1 of 2024 in
the place of occurrence unarmed. He also points out that
there are serious discrepancies regarding the overt acts
allegedly committed by the petitioner as described in the
FIS, Final Report and the evidence of eye witnesses. He also
added that the evidence of PW1 and PW2 regarding the role
of the petitioner is not reliable. The crux of the argument of
the learned Senior Counsel is that the prosecution has not
established the alleged overt acts of the petitioner beyond
doubt. Hence, he submits that the petitioner is entitled to
get the sentence imposed on him suspended.
5. On the other hand, Sri.E.C.Bineesh, learned Public
Prosecutor submitted that the petitioner inflicted fatal
injuries on the deceased. He pointed out that PW1 as well
as PW2 have clearly deposed about the offences committed
by the petitioner and the specific overt acts committed by
him have been clearly pointed out in their depositions. He
further submits that the evidence of PWs.1 and 2 is
trustworthy and the trial court has rightly found the
petitioner guilty of the offences as described above. In
conclusion, he submits that the petitioner has not made out
Crl.M.Appln.No.1 of 2024 in
a case to get the sentence imposed on him suspended.
6. We have perused the judgment of the trial court
as well as the relevant records. It is well settled that the
sentence of imprisonment for life shall not be suspended
ordinarily. In cases involving conviction under Section 302 of
IPC, benefit of suspension of sentence can be granted only
in exceptional cases. Vital consideration for grant of bail is
that the accused must have prima facie a good case for
consideration in the appeal.
7. In the case at hand, we find merit in the
submissions advanced by the learned Senior Counsel
appearing for the petitioner. In the FIS it was stated that
accused Nos.1 to 3 brutally assaulted the deceased at about
6.30 p.m. on 23.1.2015. It was further stated in that the
petitioner/fourth accused who came to know about the
incident also reached the place of occurrence and when the
informant tried to prevent him from committing assault, he
fisted below the left eye of the informant. The informant ran
into the house and closed the door to escape. Then the
petitioner kicked on the door and thereafter stamped several
Crl.M.Appln.No.1 of 2024 in
times on the left rib portion of the deceased who was lying
in the courtyard and left the place of occurrence along with
accused Nos.1 to 3. However, the case projected in the final
report is that the petitioner reached the place of occurrence
after accused 1 to 3 left the place. When PW1 was
examined, he stated before the trial court that accused
Nos.1 to 3, after brutally assaulting the deceased left the
place of occurrence. Thereafter PW1 entered his house and
locked the door from inside. He further stated that he sat on
a chair in the central portion of the hall with his child on his
lap. He then heard the third accused making a phone call to
the fourth accused and asking him to reach the place. In
five to six minutes the fourth accused reached the place.
The third accused told him something and then he came to
the house of the deceased. He forcefully opened the front
door by repeatedly kicking on it. He then fisted below the
left eye of PW1 and attempted to assault him again. Mother
of PW1 intervened to prevent the assault and then the
petitioner went out. The deceased was lying in the
courtyard and the petitioner stamped him three times on the
Crl.M.Appln.No.1 of 2024 in
left rib portion of the deceased. After the assault he left the
place. These versions, vary from each other in material
particulars, prima facie. Evidence of PW2 is also more or less
in the same lines.
8. A deeper analysis of the evidence is not required
while considering an application under Section 389 (1) of the
Cr.P.C. for suspension of execution of sentence. The only
requirement is to analyse whether the accused seeking
suspension of sentence has pointed out a prima facie good
case. As noted above, there are many discrepancies in the
versions given at various stages by the ocular witnesses
PWs.1 and 2 about the role of the petitioner. We also note
that the petitioner was unarmed. He had not taken part in
the initial predetermined assault and reached later, on
getting a call from his mother.
9. Petitioner has been undergoing imprisonment
since pronouncement of the judgment by the trial court.
During the crime stage also he has suffered incarceration.
The appeal is of the year 2022 and it may take some time
for hearing the appeal finally. Therefore, we are of the view
Crl.M.Appln.No.1 of 2024 in
that the sentence imposed on the petitioner can be
suspended.
In the result, the sentence imposed on the petitioner
shall stand suspended on condition that the petitioner shall
execute a bond for Rs.1,00,000/- (Rupees one lakh only)
with two solvent sureties for the like sum each to the
satisfaction of the trial court. He shall not involve in any
criminal activities and needless to say, the time during
which he is released pursuant to this order shall be excluded
in computing the term for which he is so sentenced.
Sd/-
P.B.SURESH KUMAR, JUDGE
Sd/-
S.MANU, JUDGE
skj
05-04-2024 /True Copy/ Assistant Registrar
