Kerala High Court
K. K Thankappan vs State Of Kerala on 10 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Wednesday, the 10th day of August 2022 / 19th Sravana, 1944
CRL.M.APPL.NO.1/2022 IN CRL.A NO. 769 OF 2022
SC 63/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOTTAYAM
PETITIONER/APPELLANT:
K. K THANKAPPAN AGED 60 YEARS S/O. KESAVAN, KOCHUVEETTIL HOUSE,
KORUTHODU VILLAGE, MADUKKA P.O, KOTTAYAM DISTRICT. PIN - 686513
RESPONDENT/RESPONDENT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence imposed on the
petitioner by virtue of the Judgement dated 11.07.2022 in S.C.No.63/2019
before the Additional Sessions Court-V,Kottayam pending final disposal of
the above Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M.P.MADHAVANKUTTY, ANOOP SATHYAN, MATHEW
DEVASSI, ANANTHAKRISHNAN A. KARTHA, REMYA M. MENON, Advocates for the
petitioner and of PUBLIC PROSECUTOR for the respondents, the court passed
the following:
Dr. Kauser Edappagath, J
-------------------------------
Crl.M.A.No.1/2022
in
Crl.A.No.769/2022
-------------------------------
Dated this the 10th day of August, 2022
--------------------------------
ORDER
This is an application filed to suspend the execution of sentence.
2. The petitioner stands convicted and sentenced to undergo
simple imprisonment for 7 years and to pay a fine of ₹5,000/- for the
offence punishable under Section 376 of IPC and to undergo simple
imprisonment for a period of 2 years and to pay a fine of ₹5,000/- for
the offence punishable under Section 450 of IPC.
3. I have heard Sri.M.P. Madhavankutty, the learned counsel
for the petitioner and Smt.Bindu O.V., the learned Public Prosecutor.
The learned Public Prosecutor has strongly opposed the application and
has filed a detailed objection.
4. I went through the impugned judgment. The prosecutrix
turned hostile to the prosecution. She did not support the prosecution
case. She specifically deposed that the accused did not commit rape on
her. However, the court below relied on the statement of the victim
recorded under Section 164 of Cr.P.C as well as the medical evidence
and convicted the accused. The victim has specifically deposed that,
Crl.M.A.No.1/2022 in
Crl.A.No.769/2022
the statement under Section 164 of Cr.P.C was given by her as directed
by the police. It is settled that the statement recorded under Section
164 of Cr.P.C is not a substantive piece of evidence. In the absence of
substantive evidence, it is doubtful whether the conviction could be
sustained. However, it is a matter for detailed hearing. In these
circumstances, the execution of sentence of the petitioner/appellant
stands suspended and bail granted to him on condition that he shall
execute a bond for ₹1,00,000/- (Rupees One lakh only) with two
solvent sureties for the like sum each to the satisfaction of the court
below.
Sd/-
DR. KAUSER EDAPPAGATH,
JUDGE
kp
10-08-2022 /True Copy/ Assistant Registrar
