Kerala High Court
Sulaiman vs State Of Kerala on 3 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Wednesday, the 3rd day of April 2024 / 14th Chaithra, 1946
CRL.M.APPL.NO.1/2023 IN CRL.A NO.567 OF 2023
SC 686/2017 OF FAST TRACK SPECIAL COURT, TIRUR
PETITIONER/APPELLANT:
SULAIMAN, AGED 51 YEARS,
S/O KAMMU, KIZHAKKUMPARAMBIL HOUSE,
CHERUKULAM P.O., ELAMKOOR, MANJERI,
MALAPPURAM DISTRICT
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
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 dated 09.02.2023 in Sessions Case No.686
of 2017 on the file of the Fast Track Special Court, Tirur, Malappuram
District 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, ALWIN JOSEPH,
Advocates for the petitioner and of the PUBLIC PROSECUTOR for the
respondent, the court passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2023
in
Crl.A.No.567 of 2023
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Dated this the 3rd day of April, 2024
ORDER
This is a petition filed by the appellant under Section
389(1) of the Code of Criminal Procedure, 1973 (Code). The
petitioner would contend that he is innocent and there is
every chance for allowing the appeal and acquitting him. He
was on bail during the trial of the case. In such
circumstances, he claims that he is entitled to get execution
of his sentence suspended.
2. The learned Public Prosecutor filed an objection on
behalf of the respondent. It is contended that the evidence
adduced by the prosecution proved beyond doubt that the
petitioner had committed the offence alleged against him. The
offence proved against the petitioner is grievous. On account
of the offence he has committed, the victim who was aged
only 11 years at the time of occurrence, has been put to
Crl.M.A.No.1 of 2023 in
untold miseries. Considering the gravity and nature of the
offence and the tenure of the sentence imposed, the
petitioner is not entitled to get an order to suspend the
sentence.
3. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. The petitioner was convicted for the offence
punishable under Section 377 of the Indian Penal Code, 1860,
Section 6 read with Section 5(f), (l) and (m) of the Protection
of Children from Sexual Offences Act, 2012 and Section 75 of
the Juvenile Justice (Care and Protection of Children) Act. The
term of sentence the petitioner has to undergo is
imprisonment for 10 years.
5. The charge levelled against the petitioner was that
he, while working as a teacher in the Madrassa where the
Crl.M.A.No.1 of 2023 in
victim was a student, subjected the victim to carnal
intercourse against the order of nature between 6.30 p.m and
8.30 p.m on a day in the first week of April 2015 and on
several occasions thereafter at a room in that Madrassa.
Besides subjecting the victim to penetrative sexual assault, he
was persuaded to smoke cigarette also. The trial court
believing the evidence tendered by the prosecution found the
petitioner guilty as mentioned above.
6. The learned counsel for the petitioner would submit
that there have been serious discrepancies in the evidence of
the victim and delay in lodging the complaint. Therefore, the
conviction is based on unreliable and insufficient evidence,
and the appeal will be allowed. Having gone through the
judgment and considered the available materials, prima facie,
I am unable to agree with the contention that the findings
leading to conviction of the petitioner is wrong.
Crl.M.A.No.1 of 2023 in
7. The learned Public Prosecutor would submit that
when the teacher committed such an offence against the
student, the offence become graver. Besides subjecting the
victim to sexual assault a bad habit of smoking was also
instilled in him by the petitioner. Such a misuse of the child
would disentitles the petitioner from claiming a lenient view.
8. The period of sentence imposed is 10 years. The
petitioner was convicted on 09.02.2023 and he has been in
jail since the said date. During investigation, he was in jail for
a period of three months. The contentions raised by the
petitioner to assail the impugned judgment require deeper
consideration. Considering that and other mitigating
circumstances, I am of the view that execution of sentence
can be suspended subject to conditions.
Accordingly, this petition is allowed and the petitioner is
Crl.M.A.No.1 of 2023 in
granted bail on his executing a bond for Rs.1,00,000/-
(Rupees one lakh only), with two solvent sureties for the like
amount each, to the satisfaction of the trial court, subject to
the following conditions:
i) He shall deposit entire fine amount in the trial court
within one month;
ii) He shall not enter the local limits of Kalpakanchery
Police Station till the final disposal of this appeal;
iii) During the bail period, he shall not get involved in
any offence; and
iv) He shall not contact or try to intimidate the victim or
witnesses examined in the case.
In case of breach of any of the above conditions, the
prosecution shall be at liberty to apply before this Court for
cancellation of the suspension of sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
03-04-2024 /True Copy/ Assistant Registrar
