Kerala High Court
Ajayan @ Karadi Ajayan vs State Of Kerala on 22 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 22nd day of March 2024 / 2nd Chaithra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.206 OF 2024
SC 33/2024 OF THE ADDITIONAL SESSIONS COURT-II, ALAPPUZHA
APPLICANT/APPELLANT:
AJAYAN @ KARADI AJAYAN, AGED 44 YEARS,
S/O RAVEENDRAN, KOMBATHAMPARAMBU, ERAVUKAD, ALAPPUZHA, PIN - 688002.
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY 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 imposed on the
Applicant/Appellant, by judgment conviction and sentence in S.C.No.30/2024
on the files of the Court of Addl. Sessions Judge - II, Alappuzha dated
30.01.2024, and release the applicant/appellant on bail, 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 M/S.P.VIJAYA BHANU (SR.), P.M.RAFIQ,
M.REVIKRISHNAN, AJEESH K.SASI, SRUTHY K.K, RAHUL SUNIL, SRUTHY N. BHAT,
NIKITA J. MENDEZ, SOHAIL AHAMMED HARRIS P.P., 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 2024 in Crl.Appeal No.99 of 2024
and
Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024
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Dated this the 22nd day of March, 2024
ORDER
Accused Nos.1 to 3 and 5 to 7 in S.C.No.40 of 2014 before the Additional Sessions Judge-II, Alappuzha are the appellants in Crl.Appeal No.99 of 2024. Accused in S.C.No.33 of 2024 of that court is the appellant in Crl.Appeal No.206 of 2024. They have filed the respective petitions under Section 389(1) of the Code of Criminal Procedure, 1973 (Code). The petitioners would contend that they are innocent and there is every chance for allowing the appeals and acquitting them. They were on bail during the trial of the case. In such circumstances, they claim that they are entitled to get their sentence suspended pending the appeals.
2. The learned Public Prosecutor filed objections on behalf of the respondent. It is contended that the evidence adduced by the prosecution proved beyond doubt that the petitioners had committed the offence alleged against them. 2 Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 and Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024 The offence proved against the petitioners are grievous. On account of the offence they have committed, the victim has been put to untold miseries. Considering the gravity and nature of the offence, the petitioners are not entitled to get orders to suspend the sentence.
3. Heard the learned Senior Counsel appeared on instructions for the appellants and the learned Public Prosecutor.
4. The charge levelled against the petitioner was that PW2, who is a DYFI worker used to make campaigns against narcotic drugs. Due to the above enmity, the accused, who are engaged in the sale of narcotic drugs and who are workers of BMS, with the object of committing murder of PW2, formed themselves into an unlawful assembly armed with deadly weapons like swords on 11.02.2013 near to Pathiyamkulangra Temple at Eravukadu and attacked PW2. He sustained grievous injuries in the incident.
5. The trial court on 10.01.2024 found all the accused guilty of the offences punishable under Sections 143, 147, 3 Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 and Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024 324, 326, 307 r/w 107 of the Indian Penal Code, 1860 (IPC). Accused Nos.1, 2, 5 and 7 were found guilty for the offence punishable under Section 148 of the IPC also. Accused Nos.1 to 3 and 5 to 7 were sentenced to undergo rigorous imprisonment for 7 years and fine for the offence under Section 307 of the IPC and lesser terms of sentence for the other offences on the same day. Accused No.4 did not turn up on that day and therefore the case against him was proceed with separately in S.C.No.33 of 2024. On 30.01.2024 after hearing on sentence, accused No.4 was sentenced to undergo rigorous imprisonment for a period of 5 years and fine for the offence under Section 307 of the IPC and for lesser terms of sentence for other offences.
6. The learned Senior Counsel appearing for the petitioners would submit that the evidence tendered by the prosecution is insufficient to enter a conviction. Whereas, the trial court on a mistaken notion and on a wrong interpretation of the evidence convicted the accused. Since the petitioners were sentenced for a fixed period, they are entitled to be 4 Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 and Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024 released on bail by suspending the execution of sentence pending the appeals. Political motivation and false implication of the petitioners is quite evident from the materials on record and therefore declining to plea for suspension of sentence is unjust. Accordingly, the learned Senior Counsel urges that these petitions are liable to be allowed.
7. The learned Public Prosecutor, besides pointing out the serious injuries inflicted to PW2, submitted that the petitioners are involved in several criminal cases and therefore they are not entitled to get the sentence suspended. The cases in which each of the petitioners involved are enlisted in the objection. Accordingly, the learned Public Prosecutor seeks to dismiss the petitions.
8. All the petitioners were sentenced for a fixed period. The possibility for disposing of these appeals immediately is unlikely also. Ordinarily, therefore, execution of the sentence imposed on the petitioners is liable to be suspended. However, the circumstances of the case, such as gravity of the offence, nature of the crime, criminal 5 Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 and Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024 antecedents of the convicts, impact on public confidence in court, etc. are to be taken into account while deciding the plea for suspension of sentence as held by the Apex Court in Atul Tripathi v. State of U.P. and another [(2014) 9 SCC 177].
9. Further, in Preet Pal Singh v. State of Uttar Pradesh [(2020) 8 SCC 645] the Apex Court held that unless there are strong compelling reasons for granting bail, notwithstanding an order of conviction, the sentence shall not be suspended.
10. The Apex Court after considering the principles of law evolved in earlier decisions in Omprakash Sahni v. Jai Shankar Chaudhary and another [AIR 2023 SC 2202] laid down the parameters for suspension of sentence in serious offences, which are;
i) Whether the case presented by the prosecution and accepted by the trial court can be said to be in a case in which, ultimately, there is a chance for acquittal;
ii) The court should be convinced that there is a fair chance for acquittal on the basis of the matters perceivable from the face of the record; and 6 Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 and Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024
iii) The court shall not re appreciate the evidence in order to decide the question whether or not the sentence should be suspended.
11. Accused Nos.1, 2, 4, 5 and 6 have involved in several other crimes. Details of such crimes in which those accused are involved are enumerated in the objection. It is seen that accused No.4 has involved in so many serious crimes; whereas the cases in which other accused involved are not so serious. Accused No.4 was convicted earlier in a case involving attempt to commit murder. Although in most of the other cases he was acquitted. Taking into account the antecedents of those accused, I am of the view that accused No.4 cannot be granted the benefit of Section 389(1) of the Code; whereas in the case of other accused, a lenient view can be taken. In the circumstances, Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 is allowed. Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024 which was filed by the 4 th accused is dismissed.
12. Accordingly, the petitioners (accused Nos.1 to 3 and 5 to 7) in Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 7 Crl.M.A.No.1 of 2024 in Crl.Appeal No.99 of 2024 and Crl.M.A.No.1 of 2024 in Crl.Appeal No.206 of 2024 2024 are granted bail by suspending execution of the sentence on their executing a bond for Rs.1,00,000/- (Rupees one lakh only) each, with two solvent sureties for the like amount each, to the satisfaction of the trial court, subject to the following conditions:
i) The petitioners shall deposit entire fine amount in the trial court within one month;
ii) They shall not enter the local limits of Alappuzha South Police Station till the disposal of the appeal;
ii) During the bail period, they shall not get involved in any offence; and
iii) They shall not contact or try to intimidate the victim or witnesses examined in the case.
In case of breach of any of the above conditions, the prosecution shall be at liberty to apply before this Court for cancellation of the suspension of sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr 22-03-2024 /True Copy/ Assistant Registrar