Kerala High Court

P .K.Latheef@Shereef vs State Of Kerala on 3 October, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                     &
                    THE HONOURABLE MR. JUSTICE G.GIRISH
          Thursday, the 3rd day of October 2024 / 11th Aswina, 1946
                CRL.M.APPL.NO.1/2023 IN CRL.A.NO.113 OF 2022
         SC 634/2009 OF ADDITIONAL DISTRICT COURT - IV, THALASSERY
PETITIONER/APPELLANT:

     P .K.LATHEEF @ SHEREEF, AGED 60 YEARS,
     S/O.ALI RAVUTHAR, PONNINKADAVIL H AANAKUZHY,
     VELLAD AMSOM, KANNUR DISTRICT - 670 571.

RESPONDENT/RESPONDENT:

     STATE OF KERALA
     REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ALAKODE,
     THROUGH PUBLIC PROSECUTOR,
     HIGH COURT OF KERALA,
     ERNAKULAM - 682 031.


     Application praying that in the circumstances stated therein the
High Court be pleased to pass an order of interim suspension of the
sentence passed against the petitioner in Sessions Case No.634/2009 on the
file of Addl. Sessions Court IV, Thalassery and release the accused in
bail, pending disposal of the above Criminal Appeal.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.SREEKUMAR C B, S.K.SAJI, SAGITH
KUMAR V., SHEFEEK A., DEVAPRIYA S., Advocates for the petitioner and of
the PUBLIC PROSECUTOR for the respondent,the court passed the following:




                                                                      P.T.O.
                  RAJA VIJAYARAGHAVAN V & G. GIRISH, JJ.
              --------------------------------------------------------
                              Crl.A. No.113 of 2022
                ----------------------------------------------------
                   Dated this the 3rd day of October, 2024

                                    ORDER

Raja Vijayaraghavan, J.

This application is filed under Section 389(2) of the Code of Criminal

Procedure seeking suspension of sentence.

2. We have heard Sri.C.B.Sreekumar, the learned counsel

appearing for the appellant, and the learned Public Prosecutor.

3. The appellant was tried by the Court of Sessions, Thalassery

for having committed offence punishable under Section 302 of the IPC. By

the judgment impugned, he was found guilty and was sentenced to

undergo imprisonment for life.

4. The prosecution allegation is that the appellant, as well as the

deceased and PWs 1 to 3, were working in the same godown owned by

PW10. There were some disputes between the appellant and the deceased

as regards the price of the coconut oil purchased by the appellant herein.

As per the charge, on account of the above enmity, the appellant is alleged

to have inflicted stab injuries on the abdomen of the deceased. The

learned Sessions Judge, after evaluating the evidence of PWs 1 to 3, was

of the view that the prosecution had successfully established that the

applicant had stabbed the deceased with MO1 knife and had caused his

death.

Crl.M.A.No.1 of 2023 in

5. The learned counsel appearing for the appellant submitted

that the learned Sessions Judge has placed implicit reliance on the evidence

of PW1 to arrive at the finding of guilt. According to the learned counsel, a

deeper evaluation of the evidence let in by the said witness would reveal

that he had no occasion to witness the incident. He would also refer to the

evidence of PWs 2 and 3 and it is urged that their evidence was discrepant

in material particulars. According to the learned counsel, it was pursuant to

a sudden quarrel between the parties that while being under grave and

sudden provocation and under a heat of passion that such an incident had

occurred, and, if that be the case, the accused was entitled to the benefit of

Exception 1 or for that matter Exception 4 of Section 300 of the IPC.

6. The learned Public Prosecutor has opposed the submissions.

She would refer to the evidence of PWs 1 to 3, the evidence of the Doctor,

and also the findings of the learned Sessions Judge and it is submitted that

all relevant aspects were meticulously considered while arriving at the

finding of guilt.

7. We have considered the submissions advanced and have

perused the records, which were made available.

8. The Apex Court in Preet Pal Singh v. State of U.P.1,

has highlighted the principles that are to be borne in mind while

considering an application for suspension of sentence, after a finding

[(2020) 8 SCC 645]

Crl.M.A.No.1 of 2023 in

of conviction has been arrived at. Paragraph Nos. 35 and 38 of the

judgment reads as follows:

35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier 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, as held by this Court in Dataram Singh v. State of U.P., [(2018) 3 SCC 22] 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. Rather, 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) CrPC.

xxxxxxx xxxxx xxxx

38. 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 application under Section 389 to reassess and/or re-analyse the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

Crl.M.A.No.1 of 2023 in

9. Recently, in Omprakash Sahni v. Jai Shankar

Chaudhary2, the Apex Court, while reiterating the principles,

observed as under in paragraph No. 31 of the judgment.

31. In Vijay Kumar v. Narendra [(2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal [(2002) 9 SCC 366], it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar, it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

10. Having considered the nature of the evidence let in by

the prosecution to bring home the guilt against the applicant and

specifically to PWs 1 to 3, the effect of the embellishments,

discrepancies, and inconsistencies projected by the applicant, in the

light of the principles laid down by the Apex Court above, we are of

the considered opinion that the applicant has not made out any

[ (2023) 6 SCC 123]

Crl.M.A.No.1 of 2023 in

strong or compelling reasons for suspension of sentence and grant

of bail.

This application will stand dismissed.

Sd/-