Niyas @ Masthan vs State Of Kerala
2022 Latest Caselaw 7435 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                    &
                THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
           Friday, the 24th day of June 2022 / 3rd Ashadha, 1944

                CRL.MA NO.1/2022 IN CRL.A NO. 1101 OF 2016

S.C.No.439/2015 on the file Additional District & Sessions Court,Ernakulam

APPELLANT/ACCUSED NO.4

     NIYAS @ MASTHAN, AGED 28 YEARS, S/O NAINAR, MUNDAKKAL HOUSE,
     MUNDAKKAL BHAGAM, KANGARAPPADI, THRIKKAKKARA NORTH VILLAGE,
     ERNAKULAM DISTRICT-682021.

RESPONDENT/COMPLAINANT

     THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
     ERNAKULAM 682 031.


     Petition praying that in the circumstances stated therein the High
Court be pleased to suspend the execution of sentence passed against the
petitioner/appellant/4th accused by the judgment in S.C.No.439/2015 on the
file Additional District & Sessions Judge (POCSO) Ernakulam dated
18-7-2016, for a period of three months in the interest of justice.

     This petition coming on for orders upon perusing the petition and
upon hearing the arguments of SRI.M.J.SANTHOSH, Advocate for the
petitioner and PUBLIC PROSECUTOR for the respondent, the court passed the
following.




                P.T.O
 Annexure A1- The original medical certificate dated 22/07/2021

AnnexureA2-   The true copy of the medical certificate dated 5/4/21

Annexure A3- The original medical certificate dated 6/5/22
            K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
            ------------------------------------
                    Crl.M.A No.1 of 2022
                              in
                 Crl.Appeal No.1101 of 2016
            -------------------------------------
            Dated this the 24th day of June, 2022


                                 O R D E R

Jayachandran, J.

1. The fourth accused in S.C.No.439/2015 of the

Additional Sessions Court for trial of cases relating

to Atrocities and Sexual Violence against Women and

Children, Ernakulam is the petitioner/appellant

herein. The petitioner/appellant was convicted for

offences under Ss.120B(1), 366, 376D, 394, 323, 342,

212 and 34 of the Penal Code and he, along with

others, were inter alia, sentenced to undergo

imprisonment for life stipulating that the same is for

the remainder of their natural life.

2. In the instant petition, the petitioner seeks

temporary suspension of sentence, as also, his release

on interim bail, on the premise that the petitioner's

mother is suffering from bipolar affective disorder

and is undergoing treatment. Petitioner is the only

son and his presence is very much required for

recovery of his mother. Annexures-A1 to A3 medical

certificates are produced in support of his mother's

disease.

Crl.MA 1/22 in Crl.Appeal 1101/2016

3. Having heard the learned counsel appearing for

the petitioner and the learned Public Prosecutor, we

are not inclined to allow the instant application.

Primarily, we take stock that the petitioner has been

found guilty of a very heinous crime of gang rape.

Going by the prosecution allegations, accused nos.1 to

4 abducted CW1 and CW2 pursuant to a criminal

conspiracy and committed gang rape on CW1, one after

the other. We also take note that the punishment

imposed is imprisonment for life, thereby meaning

remainder of the natural life of the accused persons,

including the petitioner. We are also not impressed of

the sufficiency of the ground pleaded by the

petitioner/A4. The petitioner's mother is allegedly

suffering from bipolar affective disorder and it is

the petitioner's case that his presence would improve

her situation.

4. We cannot, but find that the petitioner cannot

render any effective assistance for a reasonable

period to his mother, he being a life convict. Having

regard to the nature of the disease, petitioner's Crl.MA 1/22 in Crl.Appeal 1101/2016

temporary presence is unlikely to create any positive

impact. We are also not satisfied that there is no one

other than the petitioner to take care of his mother.

That apart, the medical situation of the petitioner's

mother is not indicated to be critical. A person, who

is convicted for serious offences and undergoing

sentence of life imprisonment, that too for the

remainder of his life, cannot seek to enforce all his

liberties and rights.

5. In the afore mentioned circumstances, we are not

inclined to allow this Crl.M.A, with the result, the

same would stand dismissed.

6. List the Criminal Appeal on 5.8.2022 for final

hearing in the 500 list.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE jg

24-06-2022 /True Copy/ Assistant Registrar