X vs State Of Kerala
2022 Latest Caselaw 9442 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                    THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                        &
                    THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
           Thursday, the 25th day of August 2022 / 3rd Bhadra, 1944

                   CRL.M.APPL.NO.2/2022 IN CRL.A NO. 803 OF 2022

         S.C.No.979/2018 of the Additional Sessions Court-1, Kasaragod

PETITIONER/APPELLANT/ACCUSED

     X

RESPONDENT/RESPONDENT/STATE/COMPLAINANT

     STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
     KERALA, PIN - 682031
     (CRIME NO.482/2018 OF KUMBALA POLICE STATION, KASARAGOD -680561)


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence passed by the
Court of Additional Sessions Judge-1, Kasaragod in S.C.No.979/2018 till
the disposal of the Criminal Appeal in the interest of justice by allowing
this petition.




     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of V.VINAY, S.RAJEEV, M.S.ANEER, PRERITH PHILIP JOSEPH, SARATH K.P.,
Advocates for the petitioner and PUBLIC PROSECUTOR for Respondent, the
court passed the following:




           p.t.o
          K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ
          ------------------------------------
   Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022
        --------------------------------------
        Dated this the 25th day of August, 2022


                                  O R D E R

Jayachandran, J.

1. The petitioner/appellant is the sole accused in

S.C.No.979 of 2018 of the Additional Sessions Court-I,

Kasaragod. He is presently undergoing imprisonment for

life, pursuant to the judgment of conviction for offences

under Section 376 of the Penal Code, as also, under

Sections 5(m) and (k), r/w 6 of the POCSO Act.

2. The instant application is one preferred under

Section 389 Cr.P.C. seeking suspension of sentence and

petitioner's release on bail.

3. Heard Sri.V.Vinay, learned counsel for the

appellant and Smt.Sheeba Thomas, learned Public Prosecutor.

Perused the records.

Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

4. Learned counsel for the appellant submitted that

the victim girl is a deaf and dumb one and her statement

was recorded under Section 164 Cr.P.C on 27.09.2018 by the

Judicial First Class Magisrate-II, Kasaragod. Thereafter,

her statement was again recorded under Section 164 Cr.P.C.

by the Judicial First Class Magistrate-I, Kasaragod on

29.09.2018. However, the second statement alone was

reckoned by the learned Sessions Court for the purpose of

Section 164(5A), Cr.P.C. In her first statement, marked as

Ext.D1, the victim had not made any allegation against the

appellant/accused, so as to attract the offence under

Section 376, or for that matter, the cognate offences under

the POCSO Act. However, in the second statement, the

victim spoke about several incriminating facts as against

the accused. This substantial improvement made in her

former statements has not been considered by the learned

Sessions Judge, submits the learned counsel. Learned

counsel also pointed out that, none other than the victim's

father was examined as DW3, who deposed that he does not Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

believe that the accused would sexually assault the victim.

Learned counsel further pointed out that the present case

was not initiated pursuant to a statement filed by the

victim. Instead, it allegedly came into light when the

accused/appellant was questioned by the police in

connection with another crime of a similar nature.

According to the learned counsel for the appellant, the

said crime was registered at the instance of activists of

the Muslim League, based on communal prejudice; and it is

only to strengthen the first crime that the second crime

was foisted against the appellant/accused. Learned counsel

submitted that, there exists no prima facie evidence in

order to rope in the appellant/accused to the offences

alleged.

5. Per contra, this application was seriously opposed

by the learned Public Prosecutor, who pointed out that the

first statement recorded under Section 164 Cr.P.C was not

in compliance with the requirements of Section 164(5A)

Cr.P.C. and the same was not videographed as mandated by Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

the Proviso to Section 164(5A)(a) Cr.P.C. That is the

reason why the second statement has been considered as a

statement in lieu of the chief examination as provided for

under Section 164(5A)(b). As regards the dichotomy between

the two statements under Section 164 Cr.P.C., learned

Public Prosecutor explained that the victim girl, who was

deaf and dumb, was reluctant to disclose the sexual

aggression made by the appellant/accused against her to

male Magistrate, who recorded her first statement. She

chose to disclose all the overt acts within two days, when

she was examined by a woman Magistrate. This aspect has

been spoken to by PW9, the interpreter, as also by PW10,

the investigating officer. As regards the allegation that

the first crime was registered on the instigation of

activists of Muslim League, learned Public Prosecutor

submitted that, there is no evidence, whatsoever, in

support of the same. Learned Public Prosecutor would submit

that, no legally recognisable ground has been urged by the

petitioner/appellant to suspend the sentence. Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

6. Having heard the learned counsel appearing on both

sides, we prima facie find force in the submissions made by

the learned counsel for the petitioner/appellant/accused.

It is relevant to note that, in the first statement of the

victim recorded under Section 164 Cr.P.C., no incriminating

fact is seen stated. However, when it came to second

statement under Section 164, serious allegations are seen

leveled against the petitioner/accused, so as to attract

the offences under Section 376, as also, the cognate

offences under the POCSO Act. The prosecution offers an

explanation to the effect that the victim was hesitant to

reveal the matters to a male Magistrate, which she chose to

do before the female Magistrate after two days. However,

this aspect is not seen put to the victim when she was

examined before the Court. Instead, it is the

interpreter/PW9, who came with the above explanation, which

we find is not legally acceptable. If the victim had a real

difficulty in deposing before a male Magistrate, such fact

should have been brought in evidence, either in the chief

examination, or atleast in the re-examination, which the Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

prosecution failed. An explanation by the interpreter, or

for that matter, the Investigating Officer, would not

satisfy the requirements of law, especially when there is

substantial difference between the versions spoken of by

the victim.

7. Another aspect, which, we count for the purpose of

this application is the evidence of DW3, who is none other

than the father of the victim. He deposed that, it is quite

unlikely for the accused to have committed the overt acts

against his own daughter. In view of the evidence tendered

by DW3, the defence version to the effect that the

appellant/accused was falsely roped in the instant crime,

only to garner support to the earlier crime of a similar

nature assumes importance. According to the defence, the

first crime is registered only on the machinations of the

Muslim League activists due to communal prejudice, the

victim being a Muslim girl and the accused, a Hindu.

Finally, we also note that, this case happened to be

registered only when it was allegedly revealed by the Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

accused himself during the course of interrogation in the

earlier crime. We prima facie find force in the submission

made by the learned counsel for the appellant/petitioner

that the petitioner will be put to serious prejudice and

irreparable injury, if he is put in incarceration and in

case, he is acquitted ultimately. Going by the present

pendency, this appeal, of the year 2022, is not likely to

be taken up in the immediate future. In view of the afore

referred glaring legal shortcomings, we are prima facie of

the opinion that there exists little evidence to convict

the accused.

In the result, we allow the instant application and

suspend execution of the order of sentence, with a

consequent direction to release the petitioner on bail,

until the appeal is heard and decided, subject to the

following conditions.

(i) The petitioner shall be released on bail on execution of a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties, each for the like amount to the satisfaction of the Crl.M.A.No.2 of 2022 in Crl.Appeal.No.803 of 2022

trial court.

(ii) He shall appear before the S.H.O., Kumbla Police Station once in two weeks on every alternate Saturdays between 10 a.m. and 11 a.m for a period of three months and then once a month, namely on every second Saturday at the same time until the appeal is heard.

(iii) He shall report before the Superintendent of the prison concerned as and when directed by this Court or the Sessions Court concerned.

(iv) He shall not involve in any offence while on bail.

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

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE Sbna/

25-08-2022 /True Copy/ Assistant Registrar