Harshad vs State Of Kerala
2022 Latest Caselaw 9604 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                  THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
             Thursday, the 25th day of August 2022 / 3rd Bhadra, 1944

                  CRL.M.APPL.NO.1/2022 IN CRL.A NO. 140 OF 2022

   SESSIONS CASE NO.599/2017 OF THE ADDITIONAL DISTRICT & SESSIONS COURT,
                                 ERNAKULAM.

(FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN
                                AND CHILDREN)

 PETITIONER/APPELLANT

      HARSHAD, AGED 24 YEARS, S/O.LATHEEF, AIMANAKUDY HOUSE, CHOORAKKODU
      KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT.

 RESPONDENT/RESPONDENT

      STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
      KERALA, ERNAKULAM, KOCHI - 682 031.


      Application praying that in the circumstances stated therein the
 High Court be pleased to suspend the sentence and fine imposed by the
 court below by impugned judgment till the disposal of the appeal.




      This Application coming on for orders upon perusing the application
 and upon hearing the arguments of M/S P.MOHAMED SABAH, LIBIN STANLEY,
 SAIPOOJA, SADIK ISMAYIL, R.GAYATHRI, M.MAHIN HAMZA, Advocates for the
 petitioners and of PUBLIC PROSECUTOR for the respondent, the court passed
 the following:




     p.t.o
             DR.KAUSER EDAPPAGATH, J.
           -------------------------------------------
                Crl.M. Appln.No.1 of 2022
                                in
                Crl. Appeal No.140 of 2022
           -----------------------------------------------
            Dated this the 25th day of August, 2022

                         ORDER

This is an application to suspend the execution of the

sentence filed by accused No. 2.

2. The petitioner stands convicted and sentenced for

the offences punishable under Sections 363 r/w 34, 366A r/w

34, 354B, 376D, 376(2)(i) of the IPC and Section 5(g) r/w 6,

3(a) r/w 4 of the POCSO Act.

3. I have heard Sri. Mohammed Sabah, the learned

counsel for the petitioner/appellant and Smt. Bindu, the learned

Public Prosecutor for the respondent. The learned Public

Prosecutor strongly opposed the application. A detailed

objection statement also has been filed.

4. The learned counsel for the petitioner submitted that

there is absolutely no satisfactory evidence to prove the Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022

involvement of the accused. The counsel further submitted that

the victim has given six different versions at different stages of the

inquiry and the trial. At any rate, it is evident that the allegation of

penetrative sexual assault committed by the accused is nothing but

an embellishment, submitted the counsel.

5. This Court has already suspended the execution of the

sentence of the accused Nos. 1 and 3. According to the

prosecution version, accused 1 and 3 also were present at the place

of the incident. However, there was no allegation of penetrative

sexual assault against them. There is allegation of penetrative

sexual assault against the present petitioner. The victim has also

spoken so in the box. But, it is pertinent to note that in the

statement of the victim recorded under Section 164 of the Cr.P.C.

on the next day after registering the FIR, there is absolutely no

allegation of penetrative sexual assault. Just before recording of

the said statement, the victim was taken to a doctor. Ext. P14 is the Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022

medical examination report. In the said report also there is no

allegation of penetrative sexual assault. But another 164 statement

of the victim was recorded after two and a half months in which

for the first time the penetrative sexual assault was alleged. In the

FI Statement, the name of the petitioner was stated as Basil

whereas the name of the petitioner is Harshad. In the first 164

statement, name of either Basil or Harshad was not mentioned.

For the first time in the second 164 statement, the name of the 1 st

petitioner was first time mentioned. That apart, there are

contradictions and embellishments in the evidence of the victim

also. I am of the view that these points have to be probed into in

detail at the time of final hearing. The petitioner is aged 24 years.

He is in judicial custody since January 2022. He has no criminal

antecedents. Considering the pendency in this court, there is no

possibility of taking up the appeal in the near future. Considering

all these facts, I am of the view that the execution of the sentence Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022

of the petitioner can be suspended on conditions.

i) The execution of the sentence of the petitioner

shall stand suspended and bail is granted on

condition that he shall execute a bond for

Rs.1,00,000/- (Rupees One lakh only) with two

solvent sureties for the like sum each to the

satisfaction of the court below and on further

condition that he shall deposit half of the fine

amount within one month from the date of his

release.

ii) The petitioner shall surrender his passport, if any,

at the court below within one month. If he does not

have a passport, he shall file an affidavit to that

effect.

iii) The petitioner shall not leave the State of Kerala

without the permission of the trial Court. Crl.M.Appln.No.1 of 2022 in Crl.Appeal No.140 of 2022

iv) The petitioner shall not enter into the jurisdiction

of the police station where the victim resides.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE RMV

25-08-2022 /True Copy/ Assistant Registrar