IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Thursday, the 25th day of August 2022 / 3rd Bhadra, 1944
CRL.M.APPL.NO.1/2022 IN CRL.A NO. 140 OF 2022
SESSIONS CASE NO.599/2017 OF THE ADDITIONAL DISTRICT & SESSIONS COURT,
ERNAKULAM.
(FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN
AND CHILDREN)
PETITIONER/APPELLANT
HARSHAD, AGED 24 YEARS, S/O.LATHEEF, AIMANAKUDY HOUSE, CHOORAKKODU
KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT.
RESPONDENT/RESPONDENT
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI - 682 031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence and fine imposed by the
court below by impugned judgment till the disposal of the appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S P.MOHAMED SABAH, LIBIN STANLEY,
SAIPOOJA, SADIK ISMAYIL, R.GAYATHRI, M.MAHIN HAMZA, Advocates for the
petitioners and of PUBLIC PROSECUTOR for the respondent, the court passed
the following:
p.t.o
DR.KAUSER EDAPPAGATH, J.
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Crl.M. Appln.No.1 of 2022
in
Crl. Appeal No.140 of 2022
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Dated this the 25th day of August, 2022
ORDER
This is an application to suspend the execution of the sentence filed by accused No. 2.
2. The petitioner stands convicted and sentenced for the offences punishable under Sections 363 r/w 34, 366A r/w 34, 354B, 376D, 376(2)(i) of the IPC and Section 5(g) r/w 6, 3(a) r/w 4 of the POCSO Act.
3. I have heard Sri. Mohammed Sabah, the learned counsel for the petitioner/appellant and Smt. Bindu, the learned Public Prosecutor for the respondent. The learned Public Prosecutor strongly opposed the application. A detailed objection statement also has been filed.
4. The learned counsel for the petitioner submitted that there is absolutely no satisfactory evidence to prove the Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022 2 involvement of the accused. The counsel further submitted that the victim has given six different versions at different stages of the inquiry and the trial. At any rate, it is evident that the allegation of penetrative sexual assault committed by the accused is nothing but an embellishment, submitted the counsel.
5. This Court has already suspended the execution of the sentence of the accused Nos. 1 and 3. According to the prosecution version, accused 1 and 3 also were present at the place of the incident. However, there was no allegation of penetrative sexual assault against them. There is allegation of penetrative sexual assault against the present petitioner. The victim has also spoken so in the box. But, it is pertinent to note that in the statement of the victim recorded under Section 164 of the Cr.P.C. on the next day after registering the FIR, there is absolutely no allegation of penetrative sexual assault. Just before recording of the said statement, the victim was taken to a doctor. Ext. P14 is the Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022 3 medical examination report. In the said report also there is no allegation of penetrative sexual assault. But another 164 statement of the victim was recorded after two and a half months in which for the first time the penetrative sexual assault was alleged. In the FI Statement, the name of the petitioner was stated as Basil whereas the name of the petitioner is Harshad. In the first 164 statement, name of either Basil or Harshad was not mentioned. For the first time in the second 164 statement, the name of the 1 st petitioner was first time mentioned. That apart, there are contradictions and embellishments in the evidence of the victim also. I am of the view that these points have to be probed into in detail at the time of final hearing. The petitioner is aged 24 years. He is in judicial custody since January 2022. He has no criminal antecedents. Considering the pendency in this court, there is no possibility of taking up the appeal in the near future. Considering all these facts, I am of the view that the execution of the sentence Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022 4 of the petitioner can be suspended on conditions.
i) The execution of the sentence of the petitioner shall stand suspended and bail is granted on condition that he shall execute a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the court below and on further condition that he shall deposit half of the fine amount within one month from the date of his release.
ii) The petitioner shall surrender his passport, if any, at the court below within one month. If he does not have a passport, he shall file an affidavit to that effect.
iii) The petitioner shall not leave the State of Kerala without the permission of the trial Court. Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022 5
iv) The petitioner shall not enter into the jurisdiction of the police station where the victim resides.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE RMV 25-08-2022 /True Copy/ Assistant Registrar