Alice vs State Of Kerala
2021 Latest Caselaw 22578 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MRS. JUSTICE M.R.ANITHA
        Friday, the 19th day of November 2021 / 28th Karthika, 1943

               CRL.M.APPL.NO.1/2021 IN CRL.A NO. 764 OF 2021

       SC NO.204/2012 OF FAST TRACK SPECIAL COURT, KUNNAMKULAM, THRISSUR.




PETITIONER/APPELLANT:

     ALICE, AGED 54 YEARS, D/O. KURIYAKKU, CHERUVATHUR HOUSE, THOZHIYOOR
     DESOM, VADAKKEKAD, THRISSUR DISTRICT, PIN - 679562.

RESPONDENT/RESPONDENT

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


     Petition praying that in the circumstances stated therein the High
Court be pleased to suspend the execution of sentence passed against the
petitoner vide judgment dated 27/10/2021 in S.C.No.204/2012 of (Fast
Track) Special Court,Kunnamkulam, Thrissur Sessions Division, during the
pendency of above Criminal Appeal, so as to secure the ends of justice.




     This petition coming on for orders upon perusing the petition and
upon hearing the arguments of M/S C.A.CHACKO, C.M.CHARISMA, ALEKH THOMAS,
Advocates for the petitioner and of PUBLIC PROSECUTOR for the
respondents, the court passed the following:




    P.T.O
                              M.R.ANITHA, J.
                              -------------------
                 Crl.M.A.1/2021 in Crl.A.764 of 2021
                    ------------------------------------------
                     Dated : 19th November, 2021


                                   ORDER

1. This petition has been filed under Section 389(1) Cr.P.C to suspend the

sentence passed against the petitioner/appellant in S.C.204/2012 on

the file of (Fast Track) Special Court, Kunnamkulam which arose out of

Crime No.1364/2009 of Kunnamkulam Police Station charged under

Section 376 IPC r/w 109 of the Indian Penal Code, 1860.

2. Petitioner is the second accused and has been found guilty under

Section 109 r/w 376 IPC and sentenced to undergo rigorous

imprisonment for six years and to pay fine of Rs.25,000/- in default to

undergo rigorous imprisonment for further period of six months.

3. Prosecution case is that PW7, the prosecutrix was working as a Sales

girl at DV Engineering at Kunnamkulam from 2004 onwards. Accused

No.1 is an autorikshaw driver and the prosecutrix is familiar with him

since 2004 and they were in love. The first accused used to visit the

shop where she had been working and promissed to marry her.

Accused NO.1 also made her to believe that he is unmarried. In Crl.M.A.1/2021 in Crl.A.764/21

August, 2006 first accused took the victim to Guruvayoor Temple

and conducted a mock marriage and made her believe that she is

his wife. Thereafter in a lodge near Guruvayoor temple, he

committed rape upon her and assured her to talk to her parents

and took her to his house. While so, on 14.10.2009 first accused

asked her to come to Thalakkottukara Siva Temple in order to

take to his house. She went to the Temple as directed by him in

the morning at about 8.15 am and from there accused took her to

the house of the second accused. After talking for some time, the

second accused left the room to take a bath after locking the

front door. When accused No.2 left the room, accused No.1

dragged her to the bed room and forcefully committed rape upon

her. Thereby accused persons committed the offence afore.

4. On the side of the prosecution, PW1 to 15 were examined and

Exts.P1 to P22 were marked and MO1 and 2 were identified and

marked. DW1 examined and Ext.D1 to D5 were marked from the

side of the accused. On hearing both sides, the learned Special

Court convicted accused NO.1 under Section 376(1) IPC and

sentenced him to undergo rigorous imprisonment for ten years

and to pay fine of Rs.1,00,000/-. Second accused, the petitioner Crl.M.A.1/2021 in Crl.A.764/21

herein was sentenced to undergo rigorous imprisonment for six

years and to pay fine of Rs.25,000/- in default to undergo rigorous

imprisonment for a further period of six months, against which

this Appeal has been filed.

5. According to the learned counsel for the petitioner, there is

inordinate delay in lodging the FIS. The first incident alleged to

have taken place in August 2006 in a lodge near Guruvayoor

Temple. The 2nd incident was after three years on 14.10.2009. But

complaint was lodged on 21.12.2009. The learned counsel would

also contend that two earlier complaints alleged to have been

given have been suppressed. It is also the contention of the

learned counsel that there is no material to prove the prior

meeting of mind so as to attract the offence under Section 109

r/w 376 IPC as against the petitioner/2nd accused.

6. Petitioner/2nd accused has been found guilty with the aid of

Section 109 IPC, with respect to the 2 nd incident alleged to have

occurred on 14.10.2009, which is alleged to have taken place at

her rented house.

7. Evidence of PW7 the prosecutrix is that first accused promised to

marry her and in August 2009 he took her to Guruvayoor temple Crl.M.A.1/2021 in Crl.A.764/21

and a mock marriage was conducted and thereafter rape was

committed.

8. Subsequently first accused took her on 14.10.2009 to the

residence of 2nd accused though his promise was to take her to

his home. 2Nd accused alleged to have gone for taking bath after

locking front door and thereafter first accused pulled her to the

bed room and committed rape upon her. Thereafter due to

profuse bleeding, accused Nos.1 and 2 took her initially to

Kunnamkulam Government Hospital and from there she was

referred to Medical College Hospital and she was admitted there

for four days. Since first accused refused to marry her, this

complaint was filed.

9. The learned counsel for the petitioner drew my attention to Arjun

Singh v. State of Himachal Pradesh ((2009) 4 SCC 18)

paragraph 14 of the said judgment dealt with the aspect of

Section 109 IPC which reads thus :-

"Under Section 109 the abettor is liable to the same punishment which may be inflicted on the principal offender (1) if the act of the latter is committed in consequence of the abetment, and (2) no express provision is made in IPC for punishment for such an abetment. This section lays down nothing more than that if IPC Crl.M.A.1/2021 in Crl.A.764/21

has not separately provided for the punishment of abetment as such then it is punishable with the punishment provided for the original offence. Law does not require instigation to be in a particular form or that it should only be in words. The instigation maybe by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else. So long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanantion to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (a) instigation (b) conspiracy or (c) with the aid constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. The offence of conspiracy created under Section 120A is a bare agreement to commit an offence. It has been made punishable under Section 120B. The offence of abetment created under the second clause of section 107 requires that there must be something more than mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by section 107 (Secondly), 'engages... in any conspiracy Crl.M.A.1/2021 in Crl.A.764/21

for the doing of that thing, if an act or illegal omission taken place in pursuance of that conspiracy'. The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with the punishment of abetment for which no express provision has been made in IPC. The charge under section 109 should, therefore be along with charge for murder which is the offence committed in consequence of abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120B for which a charge under Section 109 is unnecessary and inappropriate."

10. According to the learned counsel, prosecution could not

establish the alleged instigation for the act of rape on the part of

the petitioner/second accused.

11. More over, petitioner has been convicted and sentenced to

undergo rigorous imprisonment for six years and to pay fine of

Rs.25,000/-. The learned counsel would contend that the

petitioner is a lady who has no criminal antecedents and she has

got two daughters and there is nobody to look after them.

12. So taking into account the totality of the facts and

circumstances, I am inclined to suspend the sentence passed

against the petitioner/accused for six months from the date of

release, on the following conditions.

Crl.M.A.1/2021 in Crl.A.764/21

1. The petitioner shall execute a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum each to the satisfaction of the trial court.

2. Petitioner shall deposit the fine amount within one month from the date of release.

3. On completion of six months of her release, she shall report before the Superintendent, Central Prison concerned at 10.00 a.m.

4. She shall surrender her passport before the jurisdictional court within ten days from the date of release; if she does not possess passport, an affidavit shall be filed to that effect;

5. She shall not involve in any offence while on bail.

Sd/-

M.R.Anitha, Judge

Mrcs/18.11.

19-11-2021                       /True Copy/                              Assistant Registrar