Muhammed vs State Of Kerala

Kerala High Court

Muhammed vs State Of Kerala on 21 May, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
          Tuesday, the 21st day of May 2024 / 31st Vaisakha, 1946

               CRL.M.APPL.NO.8/2023 IN CRL.A NO.169 OF 2021

        SC NO.530/2009 OF THE FAST TRACK SPECIAL COURT, KOZHIKODE

PETITIONER/APPELLANT:

     MUHAMMED, AGED 47 YEARS, S/O KUNCHAMMU,
     AMBALATHINGAL HOUSE, CHENNAMANGALOOR,
     MUKKAM, KOZHIKODE DISTRICT.

RESPONDENTS/RESPONDENTS:

     STATE OF KERALA
     REP.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 against the petitioner as
per the judgment dated 23.02.2021 in SC No.530/2009 on the file of the
Fast Track Special Judge, Kozhikode pending disposal of the appeal.


     This Application coming on for orders upon perusing the application
and this Court's order dated 26.08.2022 in Crl.M.A 1/21 therein and upon
hearing the arguments of M/S.K.M.SATHYANATHA MENON, SMT.KAVERY S THAMPI,
Advocates for the petitioner and of PUBLIC PROSECUTOR for the respondent,
the court passed the following:




                                                                    P.T.O.
                    P.G. AJITHKUMAR, J.
  -----------------------------------------------------------
           Crl.Appeal Nos.153 and 169 of 2021
  -----------------------------------------------------------
           Dated this the 21st day of May, 2024

                               ORDER

Crl.M.A.No.1 of 2023 in Crl.A.No.153 of 2021 and Crl.M.A.No.8 of 2023 in Crl.A.No.169 of 2021 The appellants filed these petitions in the respective appeals seeking suspension of sentences under 389(1) of the Code of Criminal Procedure, 1973. The petitioners, respectively, are accused Nos.4 and 3 in Sessions Case No.530 of 2009 on the files of the Fast Track Special Court, Kozhikkode. The trial court convicted them, among others, for the offences punishable under Sections 373 and 376 of the Indian Penal Code, 1860. The period of sentence they have to undergo in terms of the said judgment is 10 years.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The learned counsel for the petitioners would contend that in consideration of the facts that accused Nos.5, 6, 7 and 9 were already released on bail by suspending the 2 Crl.Appeal No.153 and 169 of 2021 sentence, the petitioners have been in jail for a substantial period of the sentence and evidence to prove guilt on their part is deficient these petitions are liable to be allowed.

4. The learned Public Prosecutor opposes the petition by controverting the aforesaid contentions of the petitioners and also on the ground that petitions for suspension of sentence filed earlier by the petitioners were dismissed. The present petitions, therefore, deserve only to be dismissed.

5. Petitioners filed Crl.M.As. No.1 of 2021 in the respective appeals seeking suspension of sentence. This court, after considering along with similar petitions filed by the appellants in the connected appeals, dismissed those petitions as per the common order dated 26.08.2022. Therefore these petitions cannot be considered on merits again.

6. The petitioners were convicted and sentenced on 23.02.2021. They have been in jail since the said date. They were granted interim bail for a short period. It is seen that during the period when the petitioners remained in interim 3 Crl.Appeal No.153 and 169 of 2021 bail, they obeyed all the conditions imposed by this Court. During investigation of the case, these petitioners were under detention for a period of about two months. The petitioners thus underwent detention for a substantial period; for more than three years.

7. Even while ordering suspension of sentence imposed on accused Nos.5, 6, 7 and 9, the request of this petitioners for suspension of sentence was not entertained. It was for the reason that the petitioners on multiple occasions subjected the victim of offence to sexual invasion. However, having the petitioners underwent detention for a substantial period even after ordering suspension of sentence imposed on accused Nos.5, 6, 7 and 9 and on taking into account the period during which the petitioners have been in jail in connection with this case, i am of the view that the present petitions can be allowed on the similar conditions.

Accordingly, these petitions are allowed. Execution of the sentence imposed on the petitioners/accused Nos. 3 and 4 will stand suspended subject to the following conditions: 4

Crl.Appeal No.153 and 169 of 2021

i) They shall execute bonds for Rs.1,00,000/-

(Rupees One lakh only) each with two solvent sureties for the like sum to the satisfaction of the trial court.

ii) They shall deposit the entire fine amount within one month in the trial court.

iii) They shall surrender their passport before the trial court within one month. If they do not have passport, they shall file affidavits to that effect.

iv) They shall not leave the State of Kerala without the permission of the trial Court.

v) They shall not enter into the jurisdiction of the police station where the victim resides or try to contact or intimidate her.

Sd/-

P.G. AJITHKUMAR, JUDGE PV 21-05-2024 /True Copy/ Assistant Registrar