IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Thursday, the 25th day of August 2022 / 3rd Bhadra, 1944
CRL.M.APPL.NO.2/2022 IN CRL.A NO. 803 OF 2022
S.C.No.979/2018 of the Additional Sessions Court-1, Kasaragod
PETITIONER/APPELLANT/ACCUSED
X
RESPONDENT/RESPONDENT/STATE/COMPLAINANT
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
(CRIME NO.482/2018 OF KUMBALA POLICE STATION, KASARAGOD -680561)
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence passed by the
Court of Additional Sessions Judge-1, Kasaragod in S.C.No.979/2018 till
the disposal of the Criminal Appeal in the interest of justice by allowing
this petition.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of V.VINAY, S.RAJEEV, M.S.ANEER, PRERITH PHILIP JOSEPH, SARATH K.P.,
Advocates for the petitioner and PUBLIC PROSECUTOR for Respondent, the
court passed the following:
p.t.o
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ
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Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022
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Dated this the 25th day of August, 2022
O R D E R
Jayachandran, J.
1. The petitioner/appellant is the sole accused in S.C.No.979 of 2018 of the Additional Sessions Court-I, Kasaragod. He is presently undergoing imprisonment for life, pursuant to the judgment of conviction for offences under Section 376 of the Penal Code, as also, under Sections 5(m) and (k), r/w 6 of the POCSO Act.
2. The instant application is one preferred under Section 389 Cr.P.C. seeking suspension of sentence and petitioner's release on bail.
3. Heard Sri.V.Vinay, learned counsel for the appellant and Smt.Sheeba Thomas, learned Public Prosecutor. Perused the records.
Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 2
4. Learned counsel for the appellant submitted that the victim girl is a deaf and dumb one and her statement was recorded under Section 164 Cr.P.C on 27.09.2018 by the Judicial First Class Magisrate-II, Kasaragod. Thereafter, her statement was again recorded under Section 164 Cr.P.C. by the Judicial First Class Magistrate-I, Kasaragod on 29.09.2018. However, the second statement alone was reckoned by the learned Sessions Court for the purpose of Section 164(5A), Cr.P.C. In her first statement, marked as Ext.D1, the victim had not made any allegation against the appellant/accused, so as to attract the offence under Section 376, or for that matter, the cognate offences under the POCSO Act. However, in the second statement, the victim spoke about several incriminating facts as against the accused. This substantial improvement made in her former statements has not been considered by the learned Sessions Judge, submits the learned counsel. Learned counsel also pointed out that, none other than the victim's father was examined as DW3, who deposed that he does not Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 3 believe that the accused would sexually assault the victim. Learned counsel further pointed out that the present case was not initiated pursuant to a statement filed by the victim. Instead, it allegedly came into light when the accused/appellant was questioned by the police in connection with another crime of a similar nature. According to the learned counsel for the appellant, the said crime was registered at the instance of activists of the Muslim League, based on communal prejudice; and it is only to strengthen the first crime that the second crime was foisted against the appellant/accused. Learned counsel submitted that, there exists no prima facie evidence in order to rope in the appellant/accused to the offences alleged.
5. Per contra, this application was seriously opposed by the learned Public Prosecutor, who pointed out that the first statement recorded under Section 164 Cr.P.C was not in compliance with the requirements of Section 164(5A) Cr.P.C. and the same was not videographed as mandated by Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 4 the Proviso to Section 164(5A)(a) Cr.P.C. That is the reason why the second statement has been considered as a statement in lieu of the chief examination as provided for under Section 164(5A)(b). As regards the dichotomy between the two statements under Section 164 Cr.P.C., learned Public Prosecutor explained that the victim girl, who was deaf and dumb, was reluctant to disclose the sexual aggression made by the appellant/accused against her to male Magistrate, who recorded her first statement. She chose to disclose all the overt acts within two days, when she was examined by a woman Magistrate. This aspect has been spoken to by PW9, the interpreter, as also by PW10, the investigating officer. As regards the allegation that the first crime was registered on the instigation of activists of Muslim League, learned Public Prosecutor submitted that, there is no evidence, whatsoever, in support of the same. Learned Public Prosecutor would submit that, no legally recognisable ground has been urged by the petitioner/appellant to suspend the sentence. Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 5
6. Having heard the learned counsel appearing on both sides, we prima facie find force in the submissions made by the learned counsel for the petitioner/appellant/accused. It is relevant to note that, in the first statement of the victim recorded under Section 164 Cr.P.C., no incriminating fact is seen stated. However, when it came to second statement under Section 164, serious allegations are seen leveled against the petitioner/accused, so as to attract the offences under Section 376, as also, the cognate offences under the POCSO Act. The prosecution offers an explanation to the effect that the victim was hesitant to reveal the matters to a male Magistrate, which she chose to do before the female Magistrate after two days. However, this aspect is not seen put to the victim when she was examined before the Court. Instead, it is the interpreter/PW9, who came with the above explanation, which we find is not legally acceptable. If the victim had a real difficulty in deposing before a male Magistrate, such fact should have been brought in evidence, either in the chief examination, or atleast in the re-examination, which the Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 6 prosecution failed. An explanation by the interpreter, or for that matter, the Investigating Officer, would not satisfy the requirements of law, especially when there is substantial difference between the versions spoken of by the victim.
7. Another aspect, which, we count for the purpose of this application is the evidence of DW3, who is none other than the father of the victim. He deposed that, it is quite unlikely for the accused to have committed the overt acts against his own daughter. In view of the evidence tendered by DW3, the defence version to the effect that the appellant/accused was falsely roped in the instant crime, only to garner support to the earlier crime of a similar nature assumes importance. According to the defence, the first crime is registered only on the machinations of the Muslim League activists due to communal prejudice, the victim being a Muslim girl and the accused, a Hindu. Finally, we also note that, this case happened to be registered only when it was allegedly revealed by the Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 7 accused himself during the course of interrogation in the earlier crime. We prima facie find force in the submission made by the learned counsel for the appellant/petitioner that the petitioner will be put to serious prejudice and irreparable injury, if he is put in incarceration and in case, he is acquitted ultimately. Going by the present pendency, this appeal, of the year 2022, is not likely to be taken up in the immediate future. In view of the afore referred glaring legal shortcomings, we are prima facie of the opinion that there exists little evidence to convict the accused.
In the result, we allow the instant application and suspend execution of the order of sentence, with a consequent direction to release the petitioner on bail, until the appeal is heard and decided, subject to the following conditions.
(i) The petitioner shall be released on bail on execution of a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties, each for the like amount to the satisfaction of the Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022 8 trial court.
(ii) He shall appear before the S.H.O., Kumbla Police Station once in two weeks on every alternate Saturdays between 10 a.m. and 11 a.m for a period of three months and then once a month, namely on every second Saturday at the same time until the appeal is heard.
(iii) He shall report before the Superintendent of the prison concerned as and when directed by this Court or the Sessions Court concerned.
(iv) He shall not involve in any offence while on bail.
(v) If the conviction and sentence of the petitioner/appellant is upheld or even modified, the time during which he is so released shall be excluded in computing the term of his sentence as provided in Section 389(4) Cr.P.C.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
C.JAYACHANDRAN JUDGE Sbna/ 25-08-2022 /True Copy/ Assistant Registrar