Kerala High Court
Lijesh .P vs State Of Kerala on 23 January, 2025
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 P. V. BALAKRISHNAN
Thursday, the 23rd day of January 2025 / 3rd Magha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1676 OF 2024
SC 585/2023 OF 1ST ADDITIONAL SESSIONS COURT,KOZHIKODE
APPLICANT/APPELLANT:
LIJESH P., AGED 38 YEARS,
S/O IMBICHAN,PULLITHODI HOUSE,
PALLIMETHAL,CHATHAN PARAMB,
FAROOK COLLEGE,KOZHIKODE, PIN - 673623.
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,REPRESENTED SHO,
FEROKE POLICE STATION,
KOZHIKODE DISTRICT - 673001.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the
applicant/appellant by Judgment, conviction and sentence in
S.C.No.585/2023 on the files of Court of Session, Kozhikode Division (1st
Addl. Sessions Judge) dated 06.05.2024 and release the applicant/appellant
on bail, pending disposal of the above criminal appeal in the interests of
justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.BONNY BENNY, SANIL JOSE, K.P.ANTONY
BINU, AMALJITH, MANAS P HAMEED, Advocates for the petitioner and of the
PUBLIC PROSECUTOR for the respondent,the court passed the following:
P.T.O.
RAJA VIJAYARAGHAVAN V & P.V. BALAKRISHNAN, JJ.
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Crl. A. No. 1676 of 2024
---------------------------------------------
Dated this the 23rd day of January 2025
ORDER
Raja Vijayaraghavan, J.
The instant application is filed under Section 430(1) of the Bharathiya
Nagarik Suraksha Sanhitha, 2023, (hereinafter referred as BNSS), seeking
suspension of the sentence and for grant of Bail.
2. The applicant is the accused in S.C. No. 585 of 2023 on the file of
the Court of Session, Kozhikode (I Additional Sessions Judge). He was charged
for having committed an offence punishable under Section 302 of the IPC. By
the impugned judgment, he was convicted and sentenced to undergo
imprisonment for life and to pay a fine of Rs.50,000/-, with a default clause.
3. The applicant in the above case was accused of committing
uxoricide. The brief allegation is that he, along with his wife, Mallika, and their
two minor children, were residing together at a house named 'Pullithodi,'
bearing No. 1/142 F of Ramanattukara Municipality. The prosecution alleged
that the applicant used to physically abuse his wife, and she frequently
complained to her family members, including PW2, her sister. On 02.02.2023,
between 20:40 hours and 21:29 hours, the accused, on account of his enmity
towards Mallika, with an intention to cause her death, stabbed her multiple
times on various parts of her body, including her neck, the back of her head,
near her ear, and her chest, using a pair of scissors (MO1) in the kitchen of the
aforementioned house, causing her instantaneous death.
4. Sri. Bony Benny, the learned counsel appearing for the appellant
raised the following contentions to persuade us to allow the application:
a. The learned Sessions Judge has erred in placing undue emphasis on
the evidence tendered by PW1, the minor daughter of the applicant.
An evaluation of the records would reveal an inordinate delay in
recording the child's statement. He also referred to the evidence and
argued that there were serious discrepancies in her testimony, and the
defence was able to bring out material omissions and contradictions,
rendering the child's evidence unreliable.
b. The learned counsel further submitted that the Court placed
considerable reliance on the evidence of PW2, the sister of the
deceased. He pointed out that the prosecution failed to collect the Call
Data Records (CDR) to substantiate the claim that the accused had
called her and had threatened to kill her sister. He contended that, in
the absence of this crucial piece of evidence, no reliance ought to have
been placed on PW2's testimony.
c. It was further submitted that the learned Sessions Judge placed
reliance on the evidence of PW4, an immediate neighbor, who claimed
that upon hearing the child's cries, he rushed to the scene and saw the
applicant standing next to his wife with a pair of scissors in his hand.
The learned counsel argued that it was, in fact, PW4's wife who arrived
at the scene immediately after the incident; however, she was not
examined before the Court. He further contended that PW4 had a
personal grudge against the applicant due to prior disputes, and
instead of rejecting his testimony, the learned Sessions Judge
erroneously relied on it.
d. Finally, it is urged that the prosecution had suppressed scientific and
forensic evidence, which, if presented, would have established the
applicant's innocence. The applicant had a clear and consistent
defence, that he had gone to his mother's residence and returned to
his house only at 20:30 hours., at which point he discovered his wife
lying in a pool of blood in the kitchen. It was the applicant himself who
immediately informed the police about the incident. However, the
learned Sessions Judge failed to properly appreciate the applicant's
version and erroneously arrived at a finding of guilt. The learned
counsel also emphasized that the presence of blood drops outside the
residence, as noted by the Scientific Expert, indicates an inconsistency
in the prosecution's case, further casting doubt on the applicant's
alleged involvement.
5. The learned Public Prosecutor has vehemently opposed the
submissions. He asserted that the learned Sessions Judge had thoroughly
evaluated the evidence of PW1, the minor daughter, who had witnessed the
gruesome crime of her father murdering her mother with a pair of scissors in
her presence. It was further pointed out that the applicant had pushed the
children out of the room and locked the door, and it was only upon hearing the
cries of the children that the neighbours arrived at the scene. The learned
Public Prosecutor further submitted that the learned Sessions Judge had
assessed the evidence of PWs 1, 2, and 4 in its proper perspective and the
finding of guilt arrived at on its basis cannot be said to be erroneous. It was
further contended that the minor inconsistencies in the testimonies were
natural and expected in a case of this nature, particularly given that the
witnesses included a child and PW4, who is a senior citizen. Referring to the
observations made in Preetpal Singh v. State of U.P 1, the learned Public
Prosecutor submitted that, unless the findings of the trial court are palpably
perverse, this Court may not be justified in suspending the sentence. He also
emphasized that, at this stage of considering a suspension of sentence, the
evidence is not to be re-evaluated in detail.
(2020) 8 SCC 645
6. 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
(supra), wherein it was held in paragraphs 35 and 38 as under:
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.
7. In Omprakash Sahni v. Jai Shankar Chaudhary2, the Apex
Court, while elaborating on the principles to be borne in mind in considering an
application for suspension of sentence, has observed as under:
31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9
SCC 364 : and Ramji Prasad v. Rattan Kumar Jaiswal [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 [Vijay Kumar v. Narendra, (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.
8. As held by the Apex Court, while 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 an application under Section
430 of BNSS to reassess and/or re-analyze the same evidence and take a
different view, to suspend the execution of the sentence and release the
convict on bail.
[ (2023) 6 SCC 123]
9. Having considered the rival submissions, we find that the
deceased Mallika, the wife of the applicant, had sustained on her body as many
as 51 injuries. The Doctor who conducted the autopsy had opined that Mallika
had died of multiple sharp force punctured penetrating stab injuries. He had
also stated that MO1 weapon would have caused the above injuries. The
minor daughter of the applicant had witnessed the gruesome crime. The
learned Sessions Judge, after careful evaluation of the evidence, came to the
conclusion that the defence, despite extensive cross-examination, could not
discredit the core of her evidence regarding her version of having witnessed
the gruesome crime committed by her father. The court also held that there
was nothing to suggest that PW1 was a tutored witness. Furthermore, when
her statements were recorded at the stage of the investigation, the child was
residing with the paternal grandmother. The court held that the minor
omissions brought out in her evidence were not sufficient to doubt her version.
Furthermore, the court relied on the evidence of PW2, the sister of the
deceased, to whom the accused had threatened that Mallika would be done
away with. The evidence let in by PW4, the immediate neighbour, who reached
the scene of crime immediately after the incident, also established the presence
of the accused inside the house and the role played by him. Having considered
the overwhelming evidence, we are, prima facie, of the view that the
appreciation of evidence and the findings arrived at by the learned Sessions
Judge cannot be said to be patently erroneous. Having regard to the nature of
accusations, the volume of evidence, the gravity of the offence, and the
desirability of releasing the applicant on bail, we are of the view that the
applicant has not made out any case for suspension of sentence.
This application will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
APM
23-01-2025 /True Copy/ Assistant Registrar
