Jailani @ Lailani vs State Of Kerala

Kerala High Court

Jailani @ Lailani vs State Of Kerala on 3 May, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
            Friday, the 3rd day of May 2024 / 13th Vaisakha, 1946
                CRL.M.APPL.NO.1/2024 IN CRL.A NO. 158 OF 2024
 SC 490/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT (POCSO), MUVATTUPUZHA
APPLICANT/APPELLANT/ACCUSED:

     JAILANI @ LAILANI, AGED 48 YEARS,S/O. MYTHEEN, INCHAKUDIYIL HOUSE,
     MADIYOOR,PALLARIMANGALAM,ERNAKULAM ., PIN - 686671

RESPONDENT/RESPONDENT/COMPLAINANT:

     STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
     KERALA, PIN - 682031

     Application praying that in the circumstances stated therein the
High Court be pleased to issue an interim order suspending the execution
of the sentence imposed on the Applicant in S.C. No.490/2019 on the file
of the Special Court, Muvattupuzha,(For the Trial of Protection of
Children from Sexual offences Act cases) by Judgment dated 18.01.2024
ordering his release on bail , pending final disposal of the above
criminal appeal.
     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/s.SALIM V.S., N.M.SIDHIC, A.M.FOUSI,
A.B.AJIN, M.M.ANSAR, Advocates for the petitioner , and of PUBLIC
PROSECUTOR for the respondent, the court passed the following:
                        P.G. AJITHKUMAR, J.
      -----------------------------------------------------------
                        Crl.M.A.No.1 of 2024
                                  in
                    Crl.Appeal No. 158 of 2024
      -----------------------------------------------------------
               Dated this the 3rd day of May, 2024


                              ORDER

The appellant filed this petition under Section 389(1) of the Code of Criminal Procedure, 1973 (Code). The petitioner would contend that he is innocent and there is every chance for allowing the appeal and acquitting him. He was on bail during the trial of the case. In such circumstances, he claims to suspend execution of the sentence imposed on him.

2. The learned Public Prosecutor filed an objection on behalf of the respondent. It is contended that the evidence adduced by the prosecution proved beyond doubt that the petitioner had committed the offence alleged against him. The offence proved against the petitioner is grave. On account of the offence he has committed and the consequent Crl.M.A. No.1 of 2024 in 2 Crl.A.No.158 of 2024 ostracisation, the victim, who was aged only 12 years at the time of occurrence, has been put to untold miseries. Considering the gravity and nature of the offence and the tenure of the sentence imposed, the petitioner is not entitled to get an order to suspend the sentence.

3. Heard the learned counsel for the appellant and the learned Public Prosecutor.

4. The petitioner was convicted for the offence punishable under Sections 376(3) and 354A(1)(i) of the Indian Penal Code, 1860 and under Sections 4(2) r/w 3(b) and 10 r/w 9(l) of the Protection of Children from Sexual Offences Act, 2012. The term of sentence the petitioner has to undergo is imprisonment for 20 years.

5. The charge levelled against the petitioner are as follows:

On 31.03.2019, the victim along with PWs.2 and 3 and father of the victim went to Munnar in a car. The petitioner was the driver. On their way back home, the car stopped at Kothamangalam at about 8.00 p.m. When the others went out to purchase medicines, the petitioner sexually assaulted Crl.M.A. No.1 of 2024 in 3 Crl.A.No.158 of 2024 the victim girl, who was aged 12 years, by inserting his finger to her vagina. On the same day, at about 9.00 p.m. the petitioner sexually assaulted the victim again by pressing her breast. The trial court, believing the evidence tendered by the prosecution, found the petitioner guilty as mentioned above.

6. The learned counsel for the petitioner would submit that there have been serious discrepancies in the evidence of the victim and the delay in lodging the complaint. Therefore, the conviction is based on unreliable and insufficient evidence, and the appeal will be allowed. It is further contended that the occurrence of such an incident while one more person was in the car was quite improbable. Further, there was no necessity for PW2 to purchase medicine from Kothamangalam or even go to Kothamangalam to reach back to their home. Having gone through the judgment and considered the available materials, prima facie, I am unable to agree with the contention that the findings leading to the conviction of the petitioner are wrong.

7. The period of sentence imposed is 20 years. The Crl.M.A. No.1 of 2024 in 4 Crl.A.No.158 of 2024 date of occurrence is 31.03.2019. A minimum sentence of 20 years was not stipulated for the offence at that time. The petitioner was convicted and sentenced on 18.01.2024. Although the contentions of the petitioner are not able to be accepted at this stage, the same require deeper consideration. In view of that and other mitigating circumstances, I am of the view that execution of sentence can be suspended subject to conditions.

Accordingly, this petition is allowed and the petitioner is granted bail on his executing a bond for Rs.1,00,000/- (Rupees one lakh only), with two solvent sureties for the like amount each, to the satisfaction of the trial court, subject to the following conditions:

i) He shall deposit entire fine amount in the trial court within one month;

ii) He shall not enter the local limits of Pothanikkad Police Station till the final disposal of this appeal;

iii) During the bail period, he shall not get involved in any offence; and

iv) He shall not contact or try to intimidate the victim Crl.M.A. No.1 of 2024 in 5 Crl.A.No.158 of 2024 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 03-05-2024 /True Copy/ Assistant Registrar