Friday vs Chimchughan
2021 Latest Caselaw 6898 Ker

Citation : 2021 Latest Caselaw 6898 Ker
Judgement Date : 26 February, 2021

Kerala High Court

Friday vs Chimchughan on 26 February, 2021

Crl.M.Appl/2/2020 IN CRL.A 874/2020       1/3



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       Present:
               THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                          &
                    THE HONOURABLE MRS. JUSTICE M.R.ANITHA

                Friday,the 26th day of February 2021/7th Phalguna, 1942
    For information             purpose only
            Crl.M.Appl/2/2020 IN CRL.A/874/2020
SC NO.899/2014 OF THE PRINCIPAL DISTRICT AND SESSIONS COURT,
THRISUR.
PETITIONER/APPELLANT/ACCUSED
      CHIMCHUGHAN,AGED 28/2014
      S/O. RADHAKRISHNAN, KALATHIPARAMBIL HOUSE, PALATHURUTH
      DESOM, CHENDAMANGALAM VILLAGE, PARAVUR
RESPONDENT/RESPONDENT/COMPLAINANT
          STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.

  Petition praying that in the circumstances stated therein the High Court be
pleased to        suspend the sentence and conviction imposed upon the
petitioner/appellant by the learned Principal District and Sesssions Court at
Thrissur in S.C.no.899/2014 vide judgment dated 29-7-2020 pending the disposal
of the above appeal, in the interest of justice.


  This petition coming on for orders upon perusing the petition and upon hearing
the arguments of M/S P.B.AJOY, P.A.MUJEEB, Advocates for the petitioner and
the PUBLIC PROSECUTOR for the respondent, the court passed the following



 p.t.o
 Crl.M.Appl/2/2020 IN CRL.A 874/2020            2/3




                      K. VINOD CHANDRAN & M.R.ANITHA, JJ.
                       ----------------------------------------------------
                                   Crl.M.A No.2 of 2020
                                                IN
                               Crl.Appeal No. 874 of 2020
                                 ---------------------------------

    For information purpose only
                      Dated this the 26th day of February, 2021
                                           ORDER

K. Vinod Chandran, J.

The appellant herein is the sole accused before the Sessions Court, who has been convicted under Section 402,506(1), 450,419,417,376(1) (n) of Indian Penal Code ('IPC' for short) and Section 3(1) (xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989, ('the Atrocities Act' for Short) . The accused has also been imposed with punishment for the various offences, the maximum of which is imprisonment for life imposed under Section 3(2)(v) of the Atrocities Act, which infact brings the appeal before the Division Bench.

2. The specific contention taken up by the learned counsel for the petitioner is that Section 376(2)(n) of IPC, under which the appellant has been convicted and sentenced was brought in the Indian Penal Code only by Act 13 of 2013. Though the charge takes in offences between May 2010 and November 2013, there is no finding as to any such incident having occurred after the birth of the child, which was on 28.11.2011. Further it is contended that Section 3(2)(v) of the Atrocities Act brought in the commission of any offence under the IPC against a person belonging to the SC/ST community with mere knowledge of the caste status of the victim as distinguished from an offence committed on the ground of being a member of the 'Scheduled Caste or Scheduled Tribe' in the year 2016. The amended provision also cannot apply insofar as the petitioner is concerned since the alleged offence is said to have been committed earlier even according to the prosecution.

3. The learned Public Prosecutor opposes the prayer on the grounds raised in the objection.

4. On a prima facie consideration, we are inclined to accept the contentions raised by the learned Counsel for the petitioner. We have also gone through the entire judgement and we notice that it was after the death of the child, six months after the birth, that the FIR was registered and that was after three years of the offence alleged. Superfluous to say that the findings are prima facie and does not regulate the final disposal of the appeal . We are hence inclined to Crl.M.Appl/2/2020 IN CRL.A 874/2020 3/3

suspend the sentence till the disposal of the appeal on the following conditions:

1. The Appellant shall be released on executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum to the satisfaction of the trial court.

2. If the Appellant has a passport, the same shall be surrender before the Trial Court and if not an affidavit to that effect undertaking not to leave the country shall be filed before the Trial Court, within three months from the For information purpose only release.

3. From the date of his release, he shall appear before the Police Station concerned on every Second Saturday of the month.

4. He shall not involve in any other offence while on bail.

5. If the conviction and sentence of the petitioner/appellant is upheld or even modified, the time during which he is released stands excluded in computing the term of his sentence as provided in Section 389(4) Cr.P.C.