Kerala High Court
Santhosh @ Pradeesh vs State Of Kerala on 16 February, 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 JOHNSON JOHN
Friday, the 16th day of February 2024 / 27th Magha, 1945
CRL.M.APPL.NO.1/2024 IN CRL.A NO.89 OF 2024
SC 148/2007 OF THE ADDITIONAL SESSIONS COURT VII, THIRUVANANTHAPURAM
APPLICANT/APPELLANT:
SANTHOSH @ PRADEESH, AGED 41 YEARS,
S/O. SREEKANTAN NAIR, TC 62/744, K
ANJIPPURA, KALIPPANKULAM WARD,
MANACAUD, THIRUVANANTHAPURAM, PIN - 695009.
RESPONDENT/RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of the sentence and to stay
the order for payment of fine amount imposed on the
petitioner/appellant/accused vide judgement dated 18.12.2023 in S.C.No.148
of 2017 (Crime No.504 of 2004 of Fort Police Station) by the Sessions
Judge, Thiruvananthapuram in the interests of justice and the
petitioner/appellant/accused may kindly be released on bail, pending
disposal of the above appeal on such terms and conditions as this Hon'ble
Court may deem fit, in the interests of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI SASTHAMANGALAM S. AJITHKUMAR,
Advocate for the petitioner and of the PUBLIC PROSECUTOR for the
respondent, the court passed the following:
P.T.O.
P.B.SURESH KUMAR & JOHNSON JOHN, JJ.
-----------------------------------------------------------
Crl.M.A.No.1 of 2024 in Crl.Appeal No.89 of 2024,
Crl.M.A.No.1 of 2024 in Crl.Appeal No. 94 of 2024
&
Crl.M.A.No.1 of 2024 in Crl.Appeal No.98 of 2024
-----------------------------------------------
Dated this the 16th day of February, 2024
ORDER
P.B.Suresh Kumar, J.
The applicants in the above applications are accused
3, 4, 5, 7, 10, 11 and 14 in S.C.No.148 of 2007 on the files of
the Additional Sessions Court-VII, Thiruvananthapuram. Among
them, accused 3, 4, 5, 7, 10 and 11 stand convicted for the
offences punishable under Sections 143, 148, 427, 450, 324,
326 and 307 read with Section 149 of the Indian Penal Code
(the IPC) and the fourteenth accused stands convicted for the
offences punishable under Section 143, 147, 427, 450, 324,
326 and 307 read with Section 149 of IPC. They preferred the
above interlocutory applications invoking Section 389(1) of the
Code of Criminal Procedure (the Code) seeking orders
suspending the sentence imposed on them consequent on their
in Crl.A.No.89 of 2024 & con. cases
conviction in the said case in terms of the judgment impugned
in the appeals.
2. In the occurrence which was the subject matter
of the cases, one Ayyappan Achari died and a few others
injured. The gist of the allegations against the accused in the
case is that on account of previous enmity, at about 9.30 p.m.
on 28.08.2004, with the common object of committing the
murder of Ayyappan Achari, the accused in the case, 19 in
number, formed themselves into an unlawful assembly, armed
with deadly weapons like swords, iron rods etc., trespassed
upon the house of one Rajagopalan Achari and the first accused
inflicted a stab injury on Ayyappan Achari on his lower
abdomen using a sword which he carried and the remaining
accused caused injuries to PWs 1, 2 and Rajagopalan Achari
and also caused mischief in the house. Specific overt acts were
alleged against each and every member of the unlawful
assembly of which, some were serious and some were not
serious.
3. It is seen that having regard to the evidence on
record, even though the Court of Session found that accused 3,
4, 5, 7, 10, 11 and 14 shared a common object to manhandle
in Crl.A.No.89 of 2024 & con. cases
PW2 and to attempt to commit the murder of Rajagopalan
Achari and formed themselves into an unlawful assembly
armed with deadly weapons along with other accused and
others for the said purpose, voluntarily caused grievous hurt to
PWs 1 and 2 with dangerous weapons, committed house
trespass and caused mischief to the household articles and that
they did not share the common object with the first accused to
commit the murder of Ayyappan Achari and that therefore they
are only guilty of the offences punishable under Sections 143,
148, 307, 324, 326, 450 and 427, read with Section 149 IPC. It
is in the light of the said finding that they were sentenced,
among others, to undergo rigorous imprisonment for a period
of ten years. The first accused, however, was sentenced to
undergo imprisonment for life.
4. Heard Sri.Sasthamangalam S. Ajithkumar,
Sri.Suman Chakravarthy and Sri.Shajin S. Hameed, the learned
counsel for the applicants and the learned Public Prosecutor,
Sri.E.C. Bineesh.
5. The main argument advanced by the learned
counsel for the applicants is that inasmuch as it is found that
the applicants they are representing did not share a common
in Crl.A.No.89 of 2024 & con. cases
object with the first accused to commit the murder of Ayyappan
Achari and inasmuch as the applicants were imposed only a
term sentence, there is no reason why their sentences shall not
be suspended, especially when term sentences are usually
suspended by this Court, for there is no assurance that the
appeals will be taken up and heard soon or at least before the
applicants complete their sentences. It was also argued by the
learned counsel that inasmuch as the specific case of the
prosecution was that the applicants shared a common object
with the first accused to commit murder of the deceased and
inasmuch as the said case was found against the prosecution,
the Court of Session ought not have arrived at a finding that
they shared a common object with the accused persons and
others, to attempt to commit murder of Rajagopalan Achari.
The argument was that, in the said circumstances, the accused
could have been convicted only for the individual overt acts
committed by them as established in the case. According to the
learned counsel, had the said approach been made, there
would not have been any occasion at all for the Court of
Session to inflict on them a term sentence of ten years. The
learned counsel seriously pressed for orders suspending the
in Crl.A.No.89 of 2024 & con. cases
sentence imposed on the applicants on the above ground also.
6. The learned Public Prosecutor stiffly opposed
the prayer of the applicants for suspension of their sentence
stating that there are no extraordinary circumstances in the
case for suspension of the sentence of the applicants,
especially in the light of the finding in the impugned judgment
that they formed themselves into an unlawful assembly with
the common object of attempting to commit the murder of
Rajagopalan Achari and performed acts in furtherance of their
common object. It was also pointed out by the learned Public
Prosecutor that among the applicants, accused 3, 5 and 7 are
involved in several other cases.
7. We have considered the arguments advanced
by the learned counsel for the applicants. It is trite that while
considering an application for suspension of sentence, the
jurisdiction of the Appellate Court is only to examine whether
there is any patent infirmity in the order of conviction which
renders the same prima facie erroneous and it is not open to
the Appellate Court at that stage to re-assess the evidence and
take a different view. The said view has been reiterated by the
in Crl.A.No.89 of 2024 & con. cases
Apex Court in Preet Pal Singh v. State of U.P., (2020) 8 SCC 645.
8. Let us examine whether there is any
substance, prima facie, in the contentions. Even though we
find force in the argument advanced by the learned counsel for
the applicants that inasmuch as the prosecution has no case
that the applicants shared a common object with the first
accused to attempt to commit murder Rajagopalan Achari, such
a case ought not have been found by the Court of Session.
However, according to us, this is not an argument which this
Court can take note of at this stage of the proceedings while
considering the applications preferred by the applicants for
suspension of sentence. The reason is that the correctness of
the said finding can certainly be examined in the appeals while
considering the sustainability of the argument of the applicants
whether they could have been convicted only for the individual
overt acts done by them, even though the conviction and
sentence imposed on them cannot be altered without there
being any appeal by the State. If the said argument of the
applicants cannot be accepted, what remains to be considered
is the contention that only a term sentence was imposed on
them and that term sentences are usually suspended by this
in Crl.A.No.89 of 2024 & con. cases
Court in appeal. We have meticulously perused the impugned
judgment, especially the recitals therein as to the evidence let
in by the prosecution, including the evidence let in by the
injured persons and we do not find it appropriate, on the facts
and circumstances of the present case, to suspend the
sentence of the applicants at this stage, especially in the light
of the decision of the Apex Court in Preet Pal Singh.
In the said view of the matter, there is no merit in
the applications and are accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOHNSON JOHN, JUDGE.
ds 13.02.2024
16-02-2024 /True Copy/ Assistant Registrar
