Kerala High Court
Manoharan vs State Of Kerala on 10 June, 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 MRS. JUSTICE M.B. SNEHALATHA
Monday, the 10th day of June 2024 / 20th Jyaishta, 1946
CRL.M.APPL.NO.1/2023 IN CRL.A NO.1624 OF 2023
SC 245/2019 OF III ADDITIONAL DISTRICT & SESSIONS COURT, KOZHIKODE
PETITIONER/APPELLANT:
MANOHARAN, AGED 45 YEARS,
S/O.RAJAN, MOONCHOOR, EDAPPALAYAM, CHENNAI, TAMILNADU, PIN - 600052.
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 awarded to the petitioner as
per Judgment in 245/2019 dated 04.03.2021 of the Sessions Court, Kozhikode
pending disposal of the appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.I.V.PRAMOD, SAIRA SOURAJ P., RESMI
SAJEEVAN, Advocates for the petitioner and of the PUBLIC PROSECUTOR for
the respondent,the court passed the following:
P.T.O.
P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.
-------------------------------------------
Crl.M.A.No.1 of 2023
in
Crl.Appeal No.1624 of 2023
-------------------------------------------
Dated this the 10th June, 2024
ORDER
M.B.Snehalatha, J
This is an application filed by the appellant under Section 389 of
the Code of Criminal Procedure [Cr.P.C] seeking orders suspending the
sentence imposed on him consequent on his conviction in terms of the
judgment in S.C.No.245/2019 on the files of IIIrd Additional Sessions
Court, Kozhikode, which is impugned in the above appeal.
2. Heard the learned counsel for the appellant as also the learned
Public Prosecutor.
3. Appellant who is the sole accused in S.C.No.245/2019 stands
convicted for the offence punishable under Section 302 IPC and he is
sentenced to undergo imprisonment for life and to pay a fine of
Rs.50,000/- for the offence punishable under Section 302 IPC.
4. Prosecution case is that on 02.10.2018 at 9.45 hrs. at the road
junction of Francis Road-Thottoolipadam Road, Kozhikode, there was a
quarrel between the accused and Muniyappan @ Muniyandi regarding
the missing of some scrap material, which lead to a fight between
them. Thereafter, accused hit on the head of the victim with a granite
Crl.M.A.No.1 of 2023 in
stone and when Muniyappan fell down, accused with intent to cause
the death of Muniyappan hit his head against the floor as a result of
which victim sustained fatal injury in his head and lost consciousness.
Victim was taken to Kozhikode Government Medical College Hospital
and subsequently he was treated at KAPV Govt. Medical College, Tamil
Nadu and MGM Govt. Hospital, Trichy. On 13.11.2018 the victim
succumbed to the injuries. Thus, the accused committed the offence
punishable under Section 302 IPC.
5. The learned counsel for the appellant contended that there is
no evidence to prove that the death of the victim Muniyappan was a
homicide; that in the absence of such proof the conviction against the
accused for the offence under Section 302 IPC is unsustainable and
erroneous. The learned counsel for the appellant/accused pointed out
that there is no postmortem certificate and inquest report and in the
absence of such materials, the prosecution failed to establish that the
death of the victim on 13.11.2018 was consequent to the injuries
allegedly sustained on 2.10.2018.
6. The learned Public Prosecutor opposed the application and
contended that the prosecution has succeeded in establishing that the
accused caused severe injuries to the victim by hitting him with a
granite stone and hitting the head of the victim against the floor and
therefore, the court below was right in convicting the accused under
Section 302 IPC. The learned Public Prosecutor further contended that
Crl.M.A.No.1 of 2023 in
there are no exceptional circumstances to invoke the provisions of bail
under Section 389(1) Cr.P.C.
7. It is a well-settled principle 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 reassess the
evidence and to take a different view. It is trite that in an application
for suspension of sentence pending disposal of the appeal what has to
be seen by the court is whether there is any patent infirmity in the
order of conviction, which renders the same prima facie erroneous
warranting suspension of sentence and not whether the contentions of
the appellant were dealt with properly by the court of session.
8. The learned Public Prosecutor fairly conceded that though the
prosecution succeeded in producing sufficient materials to prove that
accused caused head injury to the victim on 02.10.2018 neither
postmortem certificate nor inquest report were produced by the
prosecution to prove that the death of the victim was on account of the
injuries sustained in the assault on 02.10.2018.
9. Upon hearing both sides and on a perusal of the materials, we
are of the opinion that the appellant has made out an arguable case
and this is a fit case wherein the sentence against the appellant can be
suspended subject to conditions as indicated herebelow:
Crl.M.A.No.1 of 2023 in
In the result, Crl.M.A.No.1/2023 in Crl.A.No.1624/2023 is
allowed. The sentence imposed on the accused by the sessions court
in S.C.No.245/2019 is suspended till the disposal of the appeal subject
to the following conditions:
1. The appellant shall be released on bail on executing
a bond for Rs.50,000/- with two solvent sureties each for
the like sum to the satisfaction of the trial court.
2. From the date of release, the appellant shall report
before the SHO concerned between 10 am to 11 am on all
Mondays.
3. He shall not commit on any offence while on bail.
4. If the conviction and sentence of the appellant is
upheld or even modified, the time during which he so
released shall be excluded in computing the term of his
sentence as provided in Sec.389(4) Cr.P.C.
Sd/-
P.B.SURESH KUMAR, JUDGE
Sd/-
M.B.SNEHALATHA, JUDGE
ab/sp
10-06-2024 /True Copy/ Assistant Registrar
