Kerala High Court
Ratheesh vs State Of Kerala on 8 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 8th day of December 2023 / 17th Agrahayana, 1945
CRL.M.APPL.NO.1/2023 IN CRL.A NO. 1449 OF 2023
SC 352/2018 OF ASSISTANT SESSIONS COURT, PERUMBAVOOR
PETITIONERS/APPELLANTS/ACCUSED NOS.4 & 5:
1. RATHEESH, AGED 39 YEARS, S/O RAVI, CHETTHIKATTIL HOUSE KADAPPARA
KARA, MALAYATTOOR VILLAGE, ERNAKULAM - 683587
2. ELDHO @ ACHI ELDHO, AGED 41 YEARS, S/O MATHAI, KARAYIDATHU HOUSE,
THABOR KARA, MOOKKANNUR VILLAGE , ERNAKULAM - 683577
RESPONDENT/RESPONDENT/COMPLAINANT:
THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence passed by the trial court
against the Petitioners/Appellants/Accused No.4 & 5 in SC No.352/2018 on
the file of the Assistant Sessions Court , Perumbavoor , pending disposal
of the above Criminal Appeal , so as to secure the ends of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of P.K.VARGHESE, M.T.SAMEER, DHANESH
V.MADHAVAN, JERRY MATHEW, DEEPA K.RADHAKRISHNAN, SOJAN K. VARGHESE, ARJUN
KUMAR K.S., REGHU SREEDHARAN, RAMEEZ M. AZEEZ, NAMITHA K.S., SUDARSANAN
U., ANU ASHOKAN, ATHUL.P, JUSTIN K.K. Advocates for the petitioner and of
the PUBLIC PROSECUTOR for the respondent, the court passed the following:
p.t.o
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2023
in
Crl.Appeal No. 1449 of 2023
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Dated this the 08th day of December, 2023
ORDER
This is a petition filed by the appellants under Section 389(1) of the Code of Criminal Procedure, 1973.
2. The learned counsel for the petitioners would contend that the evidence let in by the prosecution is totally insufficient to prove the charge levelled against the petitioners, but the court below on a totally wrong appreciation of evidence had convicted them. Therefore, there is every chance for them to succeed in the appeal. On such grounds they seek to suspend the sentence.
3. The respondent has filed a written objection through the learned Public Prosecutor. Apart from contending that the evidence let in by the prosecution is sufficient to prove the complicity of the petitioners to the offence, it is contended that both the petitioners involved in several other crimes and therefore, they are not entitled to be released on bail.
2Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023
4. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
5. The learned counsel for the petitioners would submit that going by the charge framed against the accused in S.C. No.352/2018, these petitioners, who are accused Nos.4 and 5, did not have any role in the offending act that caused serious injuries to PW2-the victim. It was the 2 nd accused who stabbed using a knife and the 3rd accused, who beat PW2 using an iron road. The said acts had inflicted serious injuries to PW2 resulting in paralysis of his body below abdomen. The learned Public Prosecutor would submit that the evidence let in by the prosecution certainly proved the participation of the petitioners in the unlawful assembly in prosecution of the common object of which PW2 was brutally attacked.
6. The learned counsel for the petitioners relied on the decision of the Apex Court in Bhagwan Rama Shinde Gosai and others v. State of Gujarat [(1999) 4 SCC 421] to contend that the sentence is being for a fixed period, the petitioners are entitled for suspension of sentence. The observation of the Apex Court is that when a convicted person 3 Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023 is sentenced to fixed period of sentence, suspension of sentence shall be considered by the appellate court liberally unless there are exceptional circumstances.
7. Here, the petitioners were sentenced to undergo imprisonment for a period of ten years for the offence under Section 307 of the IPC. For the other offences namely Sections 143, 144, 147, 148,341, 323, 324 and 326 of the IPC, they were awarded sentence of lesser terms. Therefore, the question is whether there is any special circumstance to deny them bail.
8. The other crimes in which the petitioners involved are the following:
The 1st petitioner involved in the following crimes:
1. Cr 66/03 u/s 395 IPC Chalakkudy Police Station.
2. Cr.165/04 u/s 394, 34 IPC (Nedupuzha P.S)
3. Cr 417/04 u/s 395 IPC & Sec 3 of Explosive Substance Act, Ollur PS.
4. Cr 32/05 u/s 325,427,395 IPC Nedupuzha Police Station
5. Cr 228/07 u/s 364,396,302 IPC Changaramkulam Police Station 4 Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023
6. Cr 62/08/s3(1) OF KAAPA ACT
7. Cr 232/12u/s 5 of Explosive Substance Act
8. Cr 755/10u/s143,147, 148,307,326, 49, 324 IPC.
9. Cr 719/11w/s324,326,427, 120(b),34 IPC, Angamaly Police Station
10. Cr 1316/11u/s 308, 34 IPC.
11. Cr 78/11/s107 Cr.pc
12. Cr 395/11 u/s West PS 366(A) 376(2)(g), 272, 373, 354, 341 IPC, Kollam West PS
13. Cr 46/12u/s 143, 147, 148, 452, 149 IPC
14. Cr 1134/20 U/S 143, 144, 147, 148, 153A, 454, 380, 427 R/W 149 IPC
15. Cr112/13 u/s 323, 341, 324, 308, 294(b), 506(ii), 34 IPC
16. Cr.636/13 u/s143, 147, 148, 120(B), 326, 109, 212, 324, 149 IPC
17. Cr 196/13 u/s 15(4) & 19 OF KAAPA, Ayyampuzha Police Station.
18. Cr149/14 u/s 143, 144, 147, 148, 326, 324, 307, 506(ii), 120(b), 109, 149 IPC & Sec.3 of Explosive Substance Act Sec.27 of Arms Act.
19. Cr 366/14 u/s 143, 144, 147, 148, 452, 324, 308, 506 (ii), 5 Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023 427, 149 IPC.
20. Cr 383/14 u/s 15(4) & 19 of KAAPA.
21. Cr 620/14 u/s 307 IPC, Angamaly Police Station.
22. Cr.2180/16 u/s 143, 147, 148, 323, 324, 307,341,149 IPC
23. Cr.2195/16 u/s 143, 147, 148, 341, 308, 323, 324, 34 IPC
24. Cr.2259/16 u/s 143, 144, 147, 148, 120(b), 201, 427, 324, 326, 302, 149 IPC and Sec 27 of Arms Act.
25. Cr/1966/16 u/s 120(B), 341, 323, 324, 326, 308, 34 IPC PALLURUTHI STATION
26. Cr.335/17 U/S 402 IPC AYYAMPUZHA PS.
27. Cr.1599/17 U/S 427 IPC AND SEC 6 OF KERALA PUBLIC WAYS RESTRICTION AND ASSEMBLIES ACT.
28. Cr.478/19 US 107 CrPC
29. Cr.836/19 U/S 143, 147, 283, 1491PC
30. Cr. 3/22 u/s 447, 506, 109,34 IPC The 2nd petitioner involved in the following crimes:
1. Kalady PS Cr. 715/12 U/s 506(1), 34 IPC CC 840/14 of JFCMC Kalady
2. Kalady PS Cr.723/12 U/s 399 IPC & Sec 27 of Arms Act & Sec 5 of Explosive Substance Act SC 294/15 of Sessions 6 Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023 Court Ernakulam.
3. Kalady PS Cr. 636/13 U/s143, 147, 148, 120(b), 326, 109, 212, 324 r/w 149 IPC SC 421/14 of Sessions Perumbavoor.
4. Kalady PS Cr. 1533/14 U/s 452, 323, 506(2), 34 IPC CC 745/15 of JFCMC Kalady.
5. Angamaly PS Cr.111/14 U/s 15(4) & 19 of KΑΑΡΑ.
6. Kalady PS Cr. 271/15 U/s 307, 34 IPC & Sec 27 of Arms Act CP 11/15 of Sessions Ernakulam.
7. Kalady PS Cr. 2345/14 U/s 399 IPC & Sec 27 of Arms Act CP 10/15 of JFCM Kalady.
8. Kalady PS Cr. 2180/16 U/s 143, 147, 148, 323, 324, 307, 341, 149 IPC UI
9. Kalady PS Cr. 2195/16 U/s 143, 147, 148, 341, 308, 323, 324, 34 IPC UI
10. Kalady PS Cr. 2259/16 U/s 143, 144, 147, 148 120(b), 201, 427, 324, 326, 302 r/w 149 & Sec.27 of Arms Act UI.
11. Angamaly PS Cr. 592/09 U/s 324 IPC, Acquitted on 25.10.23
12. Angamaly PS Cr. 240/10 U/s 447, 341, 323, 354, 294(b) CC 1133/12 JFCM Aluva.7
Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023
13. Angamaly PS Cr. 719/11 U/s 324, 326, 427, 120, 34 IPC CC 580/16 JFCM Angamaly.
14.Angamaly PS Cr. 620/14 U/s 307, 341, 143, 144, 147, 148, 149 IPC Convicted, RI for 10 years on 31.10.2017
15. Angamaly PS Cr. 3102/14 U/s 341, 452, 324, 506(1), 34 IPC CC 1550/15 JFCM Angamaly
16. Angamaly Ps Cr. 1111/14 U/s 15(4) & 19 of KAAPA
17. Angamaly PS Cr. 1313/17 U/s 110(e)of CrPC.
9. It is true that the petitioners were on bail during the trial of the present case. As per the decision held in Gomti v. Thakurdas and Others [2007 (11) SCC 160]. The fact that the convicts were on bail during the trial and they did not misuse the liberties so given have no much significance once they have been convicted. Therefore, the said aspects shall not necessarily entitle the petitioners to claim suspension of sentence.
10. As held by the Apex Court in Omprakash Sahni v. Jai Shankar Chaudhary [AIR 2023 SC 2202], the Appellate Court is duty bound to objectively assess the matter and 8 Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023 materials on record while deciding whether the convict is entitled to get an order of suspension of execution of the sentence.
11. In the case on hand, the 1 st petitioner involved in 30 crimes. Most of the cases were occurred prior to the present one. Subsequent crimes, which are Serial Nos.26 to 30 are not as serious as the present one. It is seen that he was not convicted in any of such cases. On the other hand, the second petitioner was convicted in Crime No.620/2014, which involved an offence under Section 307 of the IPC. He was sentenced to undergo imprisonment for ten years in that case. He had involved even in a case involving offence under Section 302 of the IPC. Considering those facts, I am of the view that the sentence imposed on the 1 st petitioner is liable to be suspended on strict conditions whereas, the 2 nd petitioner is not entitled to get an order of suspension of sentence.
Accordingly, the sentence imposed on the 1 st petitioner- accused No.4 is suspended and bail granted to him on his executing a bond for Rs.1,00,000/- (Rupees one lakh only) with 9 Crl.M.A.No.1 of 2023 in Crl.Appeal No. 1449 of 2023 two solvent sureties each for the like sum to the satisfaction of the trial court and subject to the following conditions:
i) the 1st petitioner shall deposit the entire amount of fine;
ii) the 1st petitioner shall not involve in any offence while on bail; and
iii) the 1st petitioner shall not indulge in any act that would pose any threat to the person or property of PW2, the injured.
It is made clear that violation of any of the above conditions will result in cancellation of his bail. The petition as regards the second petitioner is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE SMF 08-12-2023 /True Copy/ Assistant Registrar