Kothandan v. State Rep.By

in Crl.A.No.598 of 2022

S.M.SUBRAMANIAM, J. AND

V.SIVAGNANAM, J. The Miscellaneous Petition has been filed to suspend the sentence imposed in S.C.No.120 of 2015 dated 10.06.2022, passed by the learned Additional Sessions Court, Kancheepuram.

2.Mr.R.Sankarasubbu, the learned counsel for the petitioners would mainly contend that based on solitary witness, the petitioners were convicted. Therefore, the petitioners are entitled for the relief of suspension of sentence. In the present case, based on the evidence of PW1/wife of the deceased, conviction was imposed on the petitioners. In this context, the learned counsel for the petitioners would rely on the judgment of the Hon'ble Supreme Court of India in the case of Vadivelu Thevar vs. The State of Madras1. The Apex Court considered the fact and the circumstances and dealt with a criminal appeal, where the credibility and testimony is to be considered. The Apex Court in Para No.11 made an observation that "The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness AIR 1957 SCC 614 whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."

3.Thus, the Hon'ble Supreme Court categorized the witness who are all Wholly reliable, Wholly unreliable, Neither wholly reliable nor wholly unreliable.

4.Taking support of the above judgment, Mr.R.Sankarasubbu, learned counsel for the petitioners in the present would contend that the probate value of PW1 cannot be taken into consideration and therefore, it would fall under the category of "Wholly unreliable".

5.The learned counsel for the petitioners has further relied on the judgment of the Hon'ble Supreme Court of India in the case of Kadra pehadiya and Others vs. The State of Bihar2, wherein the Apex Court considered the rights of the accused under Article 21 of Constitution of India. However, in the said case, the Apex Court considered the case of a under-trial prisoner. Thus, we are not inclined to consider the said judgment.

6.So also, in the case of Hussainara Khotoon and Others vs. Home Secretary, State of Bihar, Patna3, the Apex Court dealt the case, where the trial was going on. The Courts have again and again reiterated that the case of under trial prisoner ought to be treated differently from the case of the convicted prisoner. The standard of consideration may differ from one to another.

7.The learned counsel for the petitioners relied on the case of Abdul Rehman Antulay and Others vs. R.S.Nayak and Another4. The principles are broadly laid down by Constitutional Bench and ultimately, each case is to be decided based on the facts and circumstances and by considering the evidences.

8.The learned Additional Public Prosecutor would rely on the judgment of the Hon'ble Supreme Court in the case of Omprakash Sahni vs. Jai Shankar 1981 CRL.L.J.481 AIR 1979 SCC 1360 AIR 1992 SCC 1701 Chaudhary and Another5, wherein the Apex Court made the following observations,

¶28In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), reported in (2008) 5 SCC 230 (popularly known as the Jessica Lal murder case), this Court had the occasion to consider the rival submissions as well as various judicial pronouncements referred to by both the sides over the prayer for bail. Thus, it has been held as follows: "19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

¶31In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 : JT (2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6) "6. Section 389 of the Code deals with suspension of execution of sentence pending the 2023 5 SCC 123 appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine." (emphasis supplied)

9.With reference to the principles laid down, we have considered the evidences relied on for convicting the petitioners. PW1 is none other than the wife of the deceased person. PW1, Tamilarasi in her examination stated as follows, 22/03/2015 md;W ,e;j Cnu ntz;lhk; ntW CUf;F ngha; "

gpiHf;fyhk; vd;W brhy;yp tPl;il fhyp bra;J bfhz;L nghfyhk; vd;W Kot[ bra;J xU tz;o vLg;gjw;fhf vd; fzth; v';fs; tPl;il tpl;L fhiy 9 kzpf;F btspna te;jhh;/ ehDk; mtnuhL btspna te;njd;/ mg;nghJ vjpnu nfhjz;lKk;. re;jpuDk; te;fhh;fs;/ mth;fs; vd; fztiu ghh;j;J brUg;ghy; moj;J tpl;L Ch; khwp ngha; tpLthah vd;W brhy;ypf; fj;jpahy; btl;odhh;fs;/ ehDk; vd; fztUk; brd;w tz;oia vLj;Jf; bfhz;L nfhjz;lKk;. re;jpuDk; ngha; tpl;lhh;fs;/ vd; fzth; me;j ,lj;jpnyna ,we;J gpzkhf fple;jhh;/ rk;gtk; ele;j ,lj;jpw;F vjpnu vd; K:j;jhh; mg;nghJ irf;fpspy; te;J bfhz;oUe;jhh;/ ehd; fj;jp mGJ bfhz;oUf;Fk; nghJ te;jhh;/ mth; vd;id fhty; epiyak; Tl;ofpl;L nghdhh;/ mtUk; ehDk; nrh;e;J g[fhh; bfhLj;njhk;/ vdf;F vGjj; bjhpahJ ifbaGj;J kl;Lk; nghl bjhpa[k;/ vd;dplk; fhl;lg;gLk; g[fhhpy; cs;s ifbaGj;J vd;DilaJ jhd;/ me;j g[fhh; ehd; bfhLj;jJ jhd;/ mJ m/rh/M/1 Mfk;/ vd; fztiu btl;oa nfhjz;lida[k;. re;jpuida[k; vd;dhy; milahsk; fhl;l Koa[k;/ mth;fs; M$hpy; cs;s 1 kw;Wk; 2 vjphpfs; MFk;/"

¶10Pertinently, in the cross examination of PW1 in unequivocal terms deposed as follows, ehd; vd; fztiu vjphpfs; jhf;Fk; nghJ ehd; vd;d "

bra;njd; vd;wy; vd;id tz;onahL rha;j;J tpl;L tpul;o bfhz;L Xodhh;fs;. ehd; vGe;J nghtjw;Fs; btl;o tpl;L Xodhh;fs;. vjphpfs; vd; fztiu gpoj;J bfhz;L btl;L tpl;L Xodhh;fs;/ ehd; vGe;J ngha; jLj;njdh vd;why; jLf;f Kaw;rp bra;J Xondd;/ jLf;f Kaw;rp bra;njdh vd;why; Kaw;rp bra;atpy;iy. ehd; vGe;J tUtjw;Fs; Xo tpl;lhh;s;/ gjw;wjjpy; ehd; kaf;fk; mile;njdh vd;why; igf; vd; fhypy; kPJ tpGe;jJ/ ehd; vg;go vGe;njd; vd;why; vd; fhy; kPJ tpGe;j igf;if ehnd xJf;fp tpl;L Ie;J epkplj;jpw;Fs; vGe;J tpl;nld;/ vjphpfs; btl;o tpl;L Xo tpl;lhh;fs; vd;why; igf; vLj;Jf; bfhz;L Xo tpl;lhh;fs;/ vjphpfs; K:d;W ngh;fs; vd;gjhy; vd;dhy; jLf;f Koatpy;iy/ igf; vd; kPJ tPGe;j gpwF jhd; vjphpfs; vd; fztiu btl;odhh;fs; vd;why; rhpjhd;/ gjw;wj;jpy; ,Ue;j ehd; ahh; vg;go btl;odhh;fs; vd;W mWjpl;L brhy;yKoahJ vd;why; rhpjhd;/"

11.Perusal of the evidence of PW1, this Court could arrive at an irresistible conclusion that the evidence of PW1 would not fall under the category of "Wholly unreliable". Thus, we are not inclined to consider the petition. Consequently, the Criminal Miscellaneous Petition stands dismissed. Consequently, the order made in S.C.No.120 of 2015 dated 10.06.2022, passed by the learned Additional Sessions Court, Kancheepuram as far as the petitioners namely Kothandan and Chandran is confirmed. However, observations made based on the judgments relied by the learned counsel for the petitioners would not have any implication, while considering the Criminal Appeal on merits. (S.M.S., J.) (V.S.G., J.)

05.09.2024 gd

S.M.SUBRAMANIAM, J. AND

V.SIVAGNANAM, J. gd

05.09.2024