Kerala High Court
Suresh P.M @ Poocha Sura vs State Of Kerala on 4 March, 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 4th day of March 2022 / 13th Phalguna, 1943
Crl.MA No.1/2021 in CRL.A NO. 274 OF 2021
S.C.No.128/2019 of THE SPECIAL COURT FOR THE TRIAL OF OFFENCES UNDER POCSO ACT &
CHILDREN'S COURT (ADDITIONAL SESSIONS COURT-I),KALPETTA,WAYANAD
APPELLANTS/ACCUSED 2 & 3
1. SURESH P.M @ POOCHA SURA ,S/O. MADHAVAN,AGED 42/2019, PALAKKAL
VEEDU, BHOOTHANAM COLONY, BHOOTHANAM SHED P.O., PULPALLY.
2. SIJU POULOSE, S/O. POULOSE,AGED 36 YEARS, PUTHENPURACKAL VEEDU,
PAKKAM P.O., PULPALLY.
RESPONDENT/COMPLAINANT/STATE
STATE OF KERALA ,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN-682031.
Application praying that in the circumstances stated therein the
High Court be pleased to release the appellants/accused 2 & 3 on bail
suspending the conviction and sentence as per the judgment dated 5.3.2021
in Sessions Case No.128/2019 of the Special Court for Offences under POCSO
Act & Children's Court (Additional Sessions Court-1) Kalpetta, Wayanad
till the final disposal of the appeal in the interest of justice.
This petition coming on for orders upon perusing the application and
upon hearing the arguments of M/S M.RAJENDRAN NAIR, M.SANTHY, Advocates
for the petitioners and 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 2021 in
Crl. Appeal No.274 of 2021 &
Crl.M.A.No.1 of 2021 in
Crl.Appeal No. 280 of 2021
-------------------------------------------
Dated, this, 04th March, 2022
ORDER
K.Vinod Chandran, J
Accused 1 to 4 have filed the above Crl.M.A
seeking interim suspension of sentence till the appeal is
disposed of. The charge under which the accused were
convicted was of repeated rape and gang-rape of a 11
year old child.
2. The learned Counsel appearing for the
appellants argue that the prosecutrix is not a 'sterling
witness' whose evidence can be accepted without any
corroboration as has been found in Rai Sandeep @ Deepu&
another v. State of NCT of Delhi (2012) 8 SCC 21). Not
only that corroboration is absent there is embellishments
and contradictions which create a reasonable doubt of the
prosecution story being a cooked up one. The testimony of
the witness is wholly artificial and it is clear that the
Crl.M.A. No.1 of 2021 in
Crl. Appeal No.274 of 2021 &
Crl.M.A.No.1 of 2021 in
Crl.Appeal No. 280 of 2021
young girl was used to settle scores. The learned Public
Prosecutor on the other hand vehemently points out that
the victim is a minor girl who was abused by the son of
the maid who was entrusted with the care and welfare of
the child. The mother of the child was abroad. Not only
did the son of the maid, violate the child, he came with
his friends and committed gang-rape on her. It is pointed
out that the girl had spoken only of the 1st accused at
the first instance because of the fear of being harmed.
3. Suffice it to notice that the mother of the
victim was working abroad when A4 was employed as a maid
servant to look after the house, in which were residing
the father and two minor children. The allegations were
that on 04.01.2017, A1 came to the house of the victim,
enticed her into the bedroom and touched her all over and
forced her to undress and raped her. He is also said to
have taken photographs in his mobile using which he
exploited her on other occasions also. On 14.01.2017 he
repeated the act in the victim's house. A4 who was the
mother of A1, in collusion with A1 conveniently left the
house with the younger brother, when A1 came to the
Crl.M.A. No.1 of 2021 in
Crl. Appeal No.274 of 2021 &
Crl.M.A.No.1 of 2021 in
Crl.Appeal No. 280 of 2021
house. On the third and fourth occasions which occurred
in August 2018, A1 is said to have brought two friends of
his, A2 and A3 and committed gang-rape on the victim. A
further instance of rape is also spoken of in December
2018, by A2.
4. The victim later spoke to her teacher, PW11
who informed the Headmaster and the childline committee
were alerted. The FIS was on 08.02.2019 and a S.164
statement was on 09.02.2019. None of these contained any
allegation against A2 and A3. A2 and A3 were implicated
only on 20.02.2019. PW18, the Doctor who examined the
victim on 09.02.2019, also spoke of the victim having
complained of rape by A1 alone. As far as A2 is concerned
the victim had an explanation that he had beaten her up
on resisting the rape and she was afraid to disclose his
name. A3's name was not disclosed at the first instance,
according to the victim, only because she feared that if
A3's name was revealed she would have to speak about A2
also.
5. PW18 the Doctor who examined the victim said
that hymen was absent in the girl, which could be either
Crl.M.A. No.1 of 2021 in
Crl. Appeal No.274 of 2021 &
Crl.M.A.No.1 of 2021 in
Crl.Appeal No. 280 of 2021
congenital or by reason of multiple deliveries, the last
of which can be ruled out in the case of the minor child.
There was no conclusive opinion of repeated penal
penetration, but it was possible, is the expert opinion.
6. We see from the evidence led that the only
allegation against A4 was that she purposefully left the
residence of the victim when A1 came there along with the
younger brother of the victim, to facilitate his sexual
advances on the victim. The victim had not spoken of the
same at the first instance. As far as A1 is concerned the
victim spoke in tandem with her prior statement and had a
valid explanation for not revealing the name of A2. We
are not satisfied that the explanation of A3's name
having not been revealed for fear of having to reveal
A2's name, stands to reason. We are of the prima facie
opinion that the sentence imposed on A3 and A4 can be
temporarily suspended till the disposal of the appeal.
Though the learned Counsel had placed reliance on Rai
Sandeep @ Deepu (supra) we are not convinced that the
decision can be applied at this stage and we make it
clear that the interim suspension is only on a prima
Crl.M.A. No.1 of 2021 in
Crl. Appeal No.274 of 2021 &
Crl.M.A.No.1 of 2021 in
Crl.Appeal No. 280 of 2021
facie consideration. We also reject the prayer for
interim suspension of sentence by A1 and A2; also on a
prima facie consideration. A3 and A4 would be released on
bail on the following conditions.
1. A3 and A4 shall be released on interim bail on
executing a bond for Rs.50,000/- (Rupees fifty
thousand only) each, with two solvent sureties
for the like sum to the satisfaction of the
trial Court.
2. From the date of their release, they shall
appear before the Police Station concerned on
every Monday starting from 14.03.2022 between
9.00 a.m. and 10.00 a.m.
3. They shall not involve in any offence while on
bail.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
Jma
04-03-2022 /True Copy/ Assistant Registrar
