Saji Joseph, C.No.3670, Central ... vs State Of Kerala
2021 Latest Caselaw 14562 Ker

CRL.A No.1128/2018                           1/6

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                       THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                           &
                      THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
                Wednesday, the 14th day of July 2021 / 23rd Ashadha, 1943
                     CRL.M.APPL.NO.1/2021 IN CRL.A NO. 1128 OF 2018

            SC 543/2016 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA, IDUKKI

   PETITIONER/APPELLANT

          SAJI JOSEPH, AGED 49, S/O JOSEPH, KOLLARACKAL HOUSE, SOCIETY MEDU
          BHAGOM, MUTTUKADU KARA, CHINNAKKANAL VILLAGE.

   RESPONDENT/RESPONDENT

          STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, KOCHI-682031.


        Petition praying that in the circumstances stated thereinthe High
   Court be pleased to pass an order, suspending the execution of the
   sentence imposed on the petitioner by Judgment of conviction and sentence
   dated 13.07.2021 in Sessions Case No.543 of 2016 on the file of Additional
   Sessions Judge-IV, Thodupuzha and to release the petitioner on bail,
   pending final disposal of the Criminal Appeal.




        This petition coming on for orders upon perusing the petition and
   upon hearing the arguments of SRI.P.MOHAMED SABAH, Advocate for the
   petitioner and the PUBLIC PROSECUTOR for the respondent, the court passed
   the following:
 CRL.A No.1128/2018                                 2/6




              K. VINOD CHANDRAN & ZIYAD RAHMAN A.A., JJ.
           -------------------------------------------------
                         Crl.M.A.No.1 of 2021
                                  in
                      Crl.Appeal No.1128 of 2018
           -------------------------------------------------
                Dated, this the 14th day of July, 2021

                                            O R D E R

Vinod Chandran, J.

The petitioner-appellant seeks suspension of

sentence imposed in the Sessions Case from which the

appeal arises. The accused was found guilty of the

offences under Sections 450, 341, 323 and 376 of the

Indian Penal Code. Learned Counsel for the petitioner

submits that it is a clear case of mistaken identity and

faulty investigation. The alleged victim had no prior

acquaintance of the accused and the assailant could not

be identified by sight, since admittedly there was

inadequate lighting at the scene of crime. The

identification was not carried out as per the accepted

norms and the Investigating Officer had permitted

reenactment of the incident, based on which alone the

accused was implicated. The identity revealed by the

so-called smell of the accused is very shaky and cannot

be believed. The investigation was hastily concluded CRL.A No.1128/2018 3/6

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without any enquiry into who actually was responsible for

the house trespass, coupled with assault and molestation

of the victim.

2. The learned Public Prosecutor would take us

through the judgment and seek for rejection of the

interim bail application. It is pointed out that in the

prima facie consideration, that is warranted at this

stage, there is no question of the entire evidence being

looked into or analyzed as is done in the hearing of the

appeal. The prima facie consideration can only result in

rejection of the application.

3. The allegation, upon which investigation was

initiated, was that the victim, who had dropped her child

in the neighbouring Anganwadi, had found her house

unlocked when she came back. In fact, she came back from

the neighboiuring Anganvadi on hearing a sound from her

rented house. Seeing the door opened, she entered into

the house and found the kitchen door in the back also

opened. She closed the kitchen door and while coming back

to the front portion, saw a man standing inside the house CRL.A No.1128/2018 4/6

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at the front door, which was then closed from inside. She

questioned him and attempted to attack him with a bottle,

which was warded off. The man then overpowered her and

brutally manhandled her. He also, with the help of a

knife, tore her clothes and after making her nude, had

sexual intercourse. In the meanwhile, the victim managed

to dial the last number called from her mobile, when the

intruder snatched it away. But PW2, who was called, smelt

a rat and she came to the rescue of the victim along with

PW3, a driver, who was passing through in front of the

house. The intruder then ran out of the house through the

kitchen door in the back. The intruder, during the course

of the incident, did not speak anything, but merely made

some sounds indicating that he was dumb.

4. The victim could not identify the person on

sight, but graphically described his dress, which was

recovered from the residence of the accused. Further,

PW4, a co-worker of the accused, spoke of the specific

work assigned to himself and the accused. The accused was

assigned the work of spraying pesticides in a cardamom CRL.A No.1128/2018 5/6

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estate. However, the spray pump was kept with its nozzle

pressed to the ground and pesticide pumped out at one

particular spot. PW4 also said that he saw the accused at

around 12.45 p.m., when the accused smelt of alcohol. The

victim also spoke of the smell of alochol. PW5, the

employer of the accused, and PW4, on hearing the news of

the occurrence, enquired about the incident. But PW1

refused to accompany them. When PW4 & PW5 returned, the

accused had left the place even without taking the wages

for the day.

5. The victim was honest insofar as stating that

she had not clearly seen the accused to identify him by

sight. However, in dim-light she touched him on his body

and also from his smell, identified the accused. The

accused is also a person having speech disability. In

fact, the confrontation for the purpose of identification

was so revolting to the victim that she fainted and

collapsed. The accused obviously, as is evident from the

narration of the incident, was in close proximity of the

victim. He had physically overpowered her and committed CRL.A No.1128/2018 6/6

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rape on her. It is only natural that the victim

identified him when confronted; with drastic results.

We are of the opinion that prima facie there is

no reason to suspend the sentence and we reject the

application filed, making it clear that our observations

are only prima facie and not intended to govern the final

hearing of the appeal.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

ZIYAD RAHMAN A.A., JUDGE

sp/14/07/2021

14-07-2021 /True Copy/ Assistant Registrar