Kerala High Court
Kiran Kumar S vs State Of Kerala on 13 September, 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
Friday, the 13th day of September 2024 / 22nd Bhadra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.694 OF 2022
SC 1231/2021 OF I ADDITIONAL DISTRICT & SESSIONS COURT, KOLLAM
PETITIONER/APPELLANT/SOLE ACCUSED:
KIRAN KUMAR S., AGED 31 YEARS, S/O SADASIVAN PILLAI, CHANDRAVILASAM
VEEDU, AMBALATHUMBHAGOM MURI, FERUVAZHI VILLAGE, KUNNATHOOR,
AMBALATHUMBHAGOM P.O., KOLLAM-690520.
RESPONDENTS/RESPONDENTS/COMPLAINANTS:
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2. DEPUTY SUPERINTENDENT OF POLICE, SASTHAMKOTTAH P.O., SASTHAMKOTTAH,
KOLLAM-690521.
3. ADDITIONAL R3:THRIVIKRAMAN NAIR, AGED 53 YEARS S/O.KRISHNA
PILLAI,KULATHINGARA,MEDATHIL PUTHEN VEEDU,KAITHODU
P.O,NILAMEL,KOLLAM-691535 ,IMPLEADED AS PER ORDER DATED 19/10/2022
IN CRL.M.A.2/2022.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction and sentence passed
through the Judgment in S.C.NO.1231 of 2021 on the file of the Court of
the Additional District and Sessions Judge - I, Kollam, pending disposal
of the appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S. UNNIKRISHNAN C, UTHARA A.S, NIDHI
BALACHANDRAN, VIVEK NAIR P., GOUTHAM KRISHNA U.B., VIJAYKRISHNAN S. MENON,
Advocates for the petitioner and of the PUBLIC PROSECUTOR for the 1st and
2nd respondent, M/S. S.RAJEEV, V.VINAY, SARATH K.P., ANEER M.S, PRERITH
PHILIP JOSEPH, Advocates for the 3rd respondent, the court passed the
following:
P.T.O.
RAJA VIJAYARAGHAVAN V & G. GIRISH, JJ.
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Crl.A No.694 of 2022
---------------------------------------------
Dated this the 13th day of September, 2024
ORDER
Raja Vijayaraghavan, J.
This application is filed by the appellant/accused in S.C. No. 1231 of 2021,
pending before the Additional District and Sessions Judge-I, Kollam, under
Section 389(1) of the Criminal Procedure Code, seeking suspension of sentence
and release on bail. He stands convicted and sentenced for various offences
including those punishable under Sections 304B, 306, and 498A of the Indian
Penal Code, and Sections 3 and 4 of the Dowry Prohibition Act, 1961, and has
been sentenced to imprisonment for varying terms, including rigorous
imprisonment for 10 years under Section 304B of the Indian Penal Code, 1860.
2. The appellant was employed as an Assistant Motor Vehicle
Inspector in the Department of Motor Vehicles. He had married Vismaya, a girl
in her early twenties and pursuing BAMS course in the Corporate Medical
College, Pandalam. The gist of the prosecution case is that Vismaya, wife of the
appellant/accused, tragically committed suicide in the early hours of June 21,
2021, by hanging herself in the bathroom of her matrimonial home. It is alleged
that she took this extreme step due to the persistent and unbearable matrimonial
cruelty and ill-treatment inflicted by the appellant/husband, both physically and
mentally, in connection with persistent dowry demands. The appellant/accused is
said to have abetted and instigated her to commit suicide by subjecting her to
severe mental and physical cruelty. Furthermore, the appellant/accused allegedly
made demands for dowry from the deceased and her parents, in violation of the
Dowry Prohibition Act, 1961.
3. The learned counsel appearing for the appellant submitted that no
legal evidence was adduced by the prosecution to attract the offences alleged
against the appellant. He urged that the learned Sessions Judge has erroneously
relied on transcripts of Whatsapp chats without properly evaluating the context
under which it was sent. Referring to the evidence, it is submitted that no
material was adduced by the prosecution to conclude that the victim was
harassed in connection with dowry demands soon before her death, which is a
prerequisite for arriving at a finding of guilt. He urged that the messages sent by
the father of the deceased led to serious mental trauma and distress and this
had led the deceased to take the ultimate step. According to the learned counsel,
the appellant has been languishing in jail since his conviction on 24/5/2022, and
being a term sentence and there being no real chance of the matter being taken
up for hearing in the near future, it is only just and proper that the sentence is
suspended and the appellant enlarged on bail.
4. In response, the learned Special Government Pleader submitted
that a Division Bench of this Court had earlier considered the application for
suspension of sentence and grant of bail and by a detailed order dated
13.12.2022, the application was rejected. While rejecting the application, the
nature of accusations against the appellant, the manner in which the crime was
committed, the gravity of the offence and its social impact were considered.
According to the learned counsel, there has been no change of circumstances to
take a different view at this stage.
5. We have also heard Sri.S. Rajeev, the learned counsel appearing for
the additional 3rd respondent, who also pointed out that the learned Sessions
Judge has evaluated the evidence in detail and has arrived at the finding.
6. We have carefully considered the submissions advanced. We have
also gone through the order passed by this Court on 13.12.2024 rejecting the
application for suspension of sentence. We find that the entire aspects of the
matter were taken note of by this Court while passing the order.
7. The principles that are to be borne in mind while considering an
application for suspension of sentence after a finding of guilt has been arrived at
by the trial court have been outlined by the Apex Court in Preet Pal Singh v.
State of U.P1, wherein it was held in paragraphs 35 and 38 as under:
(2020) 8 SCC 645
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. [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.
8. Recently, in Omprakash Sahni v. Jai Shankar Chaudhary2, the
Apex Court, while elaborating on the principles to be borne in mind in
[ (2023) 6 SCC 123]
considering an application for suspension of sentence, was 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
(2002) 9 SCC 364 , 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.
9. Prima facie, for the limited purpose of considering this application,
we find no evident infirmity in the order of conviction that would lead us to
conclude it is erroneous. The evidence let in established that Vismaya had
committed suicide within seven years of her marriage, that the accused had
played an active role and he subjected her to a brutal form of matrimonial
cruelty. It is well-settled that, in considering an application for suspension of
sentence, this Court will not be justified in re-evaluating the evidence in detail or
arriving at a view contrary to that of the learned Sessions Judge. Furthermore,
we note that all relevant aspects of the case were thoroughly examined when
this Court rejected the earlier application. At this stage, we see no reason to
adopt a different view, especially in light of the serious nature of the accusations,
the manner in which the young girl was driven to commit suicide, the gravity of
the offence, and the considerations regarding the desirability of releasing the
appellant/accused on bail.
In that view of the matter, we find no reason to allow this application.
This application will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
G. GIRISH
JUDGE
IAP
13-09-2024 /True Copy/ Assistant Registrar
