Kerala High Court
Vishnu vs State Of Kerala on 1 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Friday, the 1st day of April 2022 / 11th Chaithra, 1944
CRL.M.APPL.NO.1/2020 IN CRL.A NO. 752 OF 2020
SESSIOSN CASE NO.22/2019 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT,
ERNAKULAM
(FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN
AND CHILDREN)
PETITIONER/APPELLANT/ACCUSED
VISHNU, AGED 26 YEARS, S/O.JAYAPRAKASH, C.C.NO.18/1433,
THUNDIPARAMBIL HOUSE, VARAMBATH LANE, PYARI JUNCTION, THOPPUMPADY
VILLAGE, ERNAKULAM DISTRICT.
RESPONDENT/COMPLAINANT & STATE
STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence passed by the
Addl.District and Sessions Judge(For the trial of cases relating to
Atrocities and Sexual Violence against Women and Children), Ernakulam
S.C.No.22/2019 dated 19.6.2020 against the Petitioner/Appellant/Accused
no.2 so as to secure the ends of justice.
This Application coming on for orders upon perusing the application
and this Court's order dated 10.03.2022 in Crl.M.A.1/2020 in Crl.A.
674/2020 and upon hearing the arguments of M/S P.B.AJOY, P.A.MUJEEB,
Advocates for the petitioners and of PUBLIC PROSECUTOR for the respondent,
the court passed the following:
p.t.o
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
----------------------------------------------
Crl.M.A.No.1 of 2020
in
Crl.A.Nos.527 of 2020, 626 of 2020,
674 of 2020 & 752 of 2020
---------------------------------------------
Dated this the 01st day of April, 2022
ORDER
Jayachandran, J.
As per order dated 10.03.2022 in Crl.M.A.No.1 Of
2020 in Crl.A.Nos.527 of 2020 and 752 of 2020 we declined
the prayer for suspension of sentence under Section
389(1) Cr.P.C. However, by mistake, the order was
recorded in Crl.A.No.674 of 2020, instead of the two
appeals above referred. Hence, we re-called the said
order on 30.03.2022 and posted the matter for hearing the
Criminal Miscellaneous Applications today.
2. Heard Sri.P.B.Ajoy, learned counsel for the
petitioner/appellant in Crl.A.Nos.527 of 2020 and 752 of
2020, Smt.Saipooja, learned counsel for the
petitioner/appellant in Crl.A.No.674 of 2020 and
Smt.Sheeba Thomas, learned Public Prosecutor appearing on
behalf of Smt.S.Ambika Devi, Learned Special Govt.
Crl.M.A.No.1 of 2020
in
Crl.A.Nos.527 of 2020, 626 of 2020,
674 of 2020 & 752 of 2020
Pleader (Atrocities Against Women & Children). There is
no representation for the petitioner/appellant in
crl.A.No.626 of 2020.
3. Crl.A.Nos.527 of 2020, 626 of 2020, 674 of 2020 and
752 of 2020 are preferred by accused Nos.3, 1, 4 and 2
respectively in S.C.No.22/2019 of the Additional District
and Sessions Court, Ernakulam (Special Court for trial of
cases relating to Atrocities and Sexual Violence against
Women & Children). The accused persons were convicted for
offences under Section 376 D of the Penal Code, as also,
Section 6, read with Section 5(g) of the Protection of
Children from Sexual Offences (POCSO) Act and sentenced to
rigorous imprisonment for a period of 20 years and to pay a
fine of Rs.25,000/-.
4. Sri.P.B.Ajoy, learned counsel for the
petitioners/appellants in Crl.A.Nos.527 of 2020 and 752
of 2020, invited our attention to paragraph no.12 of the
impugned judgment to point out that the victim/PW1 has no
definite knowledge as to who raped her. The prosecution
allegation that accused Nos.1 to 4 raped PW1 is nothing but
Crl.M.A.No.1 of 2020
in
Crl.A.Nos.527 of 2020, 626 of 2020,
674 of 2020 & 752 of 2020
her figment of imagination/presumption. The statutory
presumption under Section 29 of the POCSO Act cannot be drawn
on the basis of such presumption of PW1, wherefore, the
judgment impugned is seriously faulted. The appeal is of the
year 2020 and having regard to the pendency, the instant
appeal is not likely to be taken up for final hearing in the
immediate future. In such circumstances, incarcerating the
petitioners for long, where a conviction is merely based on
an imaginative presumption of the victim, will seriously
jeopardise the life of the accused. Learned counsel also
pointed out that barring the evidence tendered by the
interested witnesses, like PW1 and her parents, there is no
independent evidence, whatsoever, incriminating the accused
persons in the crime. On such premise, learned counsel seeks
suspension of sentence and release of the
petitioners/appellants on bail.
5. Learned counsel Smt.Saipooja appearing for the
petitioner/appellant in Crl.A.No.674 of 2020 adopted all
contentions of Sri.P.B.Ajoy. Besides, it was contended
that the petitioner was not properly identified by the
Crl.M.A.No.1 of 2020
in
Crl.A.Nos.527 of 2020, 626 of 2020,
674 of 2020 & 752 of 2020
witnesses. His name was not recorded in the First
Information Statement, wherefore, his identification is
all the more important.
6. Per contra, these applications are seriously opposed by
the learned Public Prosecutor pointing out that the victim's
evidence is abundantly sufficient to convict the accused
persons. It is not correct to say that her knowledge with
respect to rape is based on assumption/presumption. The
circumstances and the setting in which she alleges rape, as
taken note of in paragraph no.12 of the judgment impugned,
would amplify the guilt of the accused persons, beyond
reasonable doubt. Learned Public Prosecutor pointed out that
this is an instance of gang rape of a minor girl by four
assailants, wherefore, the petitioner/A4 does not deserve any
sympathy, whatsoever. Foundational facts are proved by the
evidence tendered by PW1, corroborated by the evidence of her
parents, PW2 and PW3. Besides medical evidence tendered by
PW9/doctor, indicating that the hymen was torn and injuries
in her private part would fully establish the guilt of the
accused, contends the learned Public Prosecutor.
7. Having heard the learned counsel appearing on both
Crl.M.A.No.1 of 2020
in
Crl.A.Nos.527 of 2020, 626 of 2020,
674 of 2020 & 752 of 2020
sides, we are not inclined to allow this Crl.M.As and to
enlarge the petitioners on bail. We find no prima facie merit
in the arguments advanced by the learned counsel for the
petitioners. Going by the prosecution case, the victim went
to Fort Kochi Beach only as per the direction of A1 on the
fateful day in the bike of A2. Accused 1 and 3, along with
another, were waiting in the beach, whereafter, the victim
was forced to consume one bottle of beer, as also, to smoke a
cigarette. She lost her consciousness, which she regained
only by 2 a.m, when she found herself nude in a room. She
found all the four accused persons in that room. The victim
felt pain on her body and private parts. It is accordingly
that she realised that she was raped by the accused persons.
In the circumstances narrated above, we are not in a position
to endorse the submission made by the learned counsel for the
petitioners that the victim's allegation regarding rape is an
assumption/presumption and that the accused persons were not
identified properly. The circumstances taken stock of in
paragraph 12 of the judgment speak volumes as regards the
prosecution allegation of rape, which is corroborated by
medical evidence as well. As pointed out by the learned
Crl.M.A.No.1 of 2020
in
Crl.A.Nos.527 of 2020, 626 of 2020,
674 of 2020 & 752 of 2020
Public Prosecutor, the offence in question is of a very grave
nature, exhibiting extreme depravity.
We, therefore, reject Crl.M.A.No. 1 of 2020
in the four appeals above referred, but with an
observation, that the matter will be posted for final
hearing in the chronological order, when matters of the
year 2018 are posted, since the petitioners, as also,
other accused persons are incarcerated from that year
onwards.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
NR/01/04/2022
01-04-2022 /True Copy/ Assistant Registrar
