Vinoth Kumar @ Vinoth v. State Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.06.2021

CORAM

THE HONOURABLE MR. JUSTICE P.N.PRAKASH AND THE HONOURABLE MR. JUSTICE R.PONGIAPPAN Crl.M.P.No.1462 of 2021 in Crl.A.No.61 of 2021 Vinoth Kumar @ Vinoth .. Petitioner/A1 Vs.

State through its Station House Officer, Bahoor Police Station, Puducherry.

(Crime No.38 of 2017) .. Respondent/Respondent Criminal Miscellaneous Petition filed under Section 374 (2) Cr.P.C., to suspend the sentence imposed upon the petitioner by judgment and order dated 14.08.2020 passed in S.C.No.35 of 2017 on the file of the learned Principal Sessions Judge, Puducherry, and to enlarge the petitioner on bail pending disposal of the appeal.

For Petitioner : Mr.A.K.Rajaraman For Respondent : Mr.Bharatha Chakravarthy Additional Public Prosecutor

ORDER

(Order of the Court was made by R.PONGIAPPAN, J.) This criminal miscellaneous petition has been preferred, seeking to suspend the sentence imposed upon the petitioner/A1, by judgment and order dated 14.08.2020 passed in S.C.No.35 of 2017 on the file of the learned Principal Sessions Judge, Puducherry, and to enlarge the petitioner/A1 on bail pending disposal of the appeal.

2. The case of the prosecution is that on 10.05.2017 at about 7.20 pm, the petitioner/A1, with an intent to murder one Swathan, kidnapped

him in a motorcycle bearing Regn.No.PY01 CL 7153, went to an empty plot at Gokul Nagar Layour, Bahour, Puducherry and thereafter, with the help of other accused, due to previous enmity, assaulted the deceased with a veecharuval, on his neck and when the deceased Swathan fell down on the ground, the accused No.2, in this case caught hold of his hands and accused No.3, caught hold of his legs and wrongfully confined the deceased escaping from the spot and the petitioner/A1, severed the head of the deceased and also brutally assaulted on his both hands and legs several times by using the same veecharuval, resulting in the amputation of his left forearm, due to which the deceased died of decapitation of head, resulting in cut injuries on his neck. For the said occurrence, a case has been registered against the petitioner/A1 and others in Crime No.38 of 2017, on the file of Bahour Police Station, Puducherry, under Sections 364 and 302 r/w 34 IPC.

3. After concluding the trial, by judgment dated 14.08.2020, the learned Principal Sessions Judge, Puducherry, came to the conclusion that the petitioner/A1 is guilty of the offence under Sections 364 and 302 IPC. Accordingly, the petitioner/A1 was convicted and sentenced as follows:

Offence Sentence 364 IPC Rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for 3 months.

302 IPC imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for 3 months.

4. Challenging the above conviction and sentence, the petitioner/A1 has filed Crl.A.No.61 of 2021 along with the instant miscellaneous petition seeking suspension of sentence and bail.

5. Heard Mr.A.K.Rajaraman, learned counsel for the petitioner and Mr.Bharatha Chakravarthy, learned Additional Public Prosecutor appearing for the respondent/State.

6. Mr.A.K.Rajaraman, learned counsel appearing for the petitioner/A1 would contend that before the trial Court, the prosecution has not proved their case beyond reasonable doubt. Further, in the judgment rendered by the trial Court, in paragraph No.125, the learned trial Judge has clearly held that the investigation officer in this case had failed to prepare Mahazar in the place where the human head was thrown and also failed to prepare Mahazar in the place where the human head fell down. Further, it is held that the investigation officer has failed to collect the CCTV particulars from Reddichavadi Police Station. Therefore, the said

observation made by the learned trial Judge is sufficient to hold that investigation in this case has not been done properly and accordingly, the learned counsel for the petitioner/A1, prayed to allow this petition.

7. Per contra, Mr.Bharatha Chakravarthy, the learned Additional Public Prosecutor appearing for the respondent State would contend that though some lapses were identified by the learned trial Judge in respect of the manner of investigation conducted by the prosecution, that alone is not sufficient to hod that the entire occurrence is a false one. During the time of occurrence, with a common intention, the petitioner/A1 and other accused brutally murdered the deceased and cut the head of the deceased and threw away the same before the police station. Therefore, the manner of offence committed by the accused shows that the person, who is having this type of character, should not be allowed to mingle with the public. In otherwise, the learned Additional Public Prosecutor, strongly opposed this petition.

8. Now, on considering the rival submissions made by the learned counsel on either side with the relevant records, it seems that the alleged occurrence is a retaliatory murder. Further, after completing the occurrence, in order to screen the evidence, the petitioner/A1 and others had cut the head of the deceased and thrown out the same before the police station. It shows that the alleged occurrence is nothing but a brutal murder. In this connection, it is useful to refer to the judgment in Vijayakumar Vs. Narendra and others, reported in 2002 (9) SCC 364, wherein our Hon'ble Apex Court has held as follows: "... in considering the prayer for bail in a case involving serious offences 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 offence, and the desirability of releasing the accused on bail after they have been convicted for committing serious offence of murder."

9. Therefore, the legal position is very clear that the power of this Court to suspend the order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, but, its exercise should be limited to very exceptional cases. Merely because of the reason that the convicted person files an appeal in challenge of the conviction, the Court should not suspend the operation of the order of conviction. The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. Therefore, we are of the opinion that this is not a fit case to suspend the sentence of imprisonment and grant bail to the petitioner/A1.

10.

In the result, this criminal miscellaneous petition is dismissed. The Registry is directed to call for the records, prepare the

typed set of papers immediately and list the main appeal for final hearing in the month of August 2021.

-sd/- 24/06/2021 This order, on being produced, be punctually observed and carried into execution by all concerned TRUE COPY Sub-Assistant Registrar (Statistics/C.S.) High Court, Madras - 600 104.

TO 1 THE PRINCIPAL SESSIONS JUDGE, PUDUCHERRY.

2 THE STATION HOUSE OFFICER, BAHOOR POLICE STATION, PUDUCHERRY.

3 THE SUPERINTENDENT, KALAPET CENTRAL PRISON, PUDUCHERRY.

4 THE PUBLIC PROSECUTOR, PUDUCHERRY.

COPY TO:

THE SECTION OFFICER, CRIMINAL SECTION, HIGH COURT, MADRAS.

+1 C.C. to M/S.A.K.RAJARAMAN Advocate on payment of necessary charges SR.NO. 6818 Order in CRL MP.1462/2021 in CRL A.61/2021 Date :24/06/2021 From 7.2.2001 the Registry is issuing certified copies of the BAIL/Anti.BAIL Orders in this format MN-29/06/2021