Kerala High Court
Shahul Hameed vs State Of Kerala on 4 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 4th day of April 2024 / 15th Chaithra, 1946
CRL.M.APPL.NO.1/2022 IN CRL.A NO.1406 OF 2022
SC 864/2019 OF THE SPECIAL COURT FAST TRACK, PERINTHALMANNA
PETITIONER/APPELLANT:
SHAHUL HAMEED, AGED 39 YEARS,
S/O.MUHAMMED, NEDUMBA HOUSE, PULVETTA, KARUVARAKUNDU AMSOM,
MALAPPURAM DISTRICT, PIN - 676523.
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 imposed on the appellant in
S.C.No.864/2019 dated 05.12.2022 of the Special Judge, Fast Track,
Perinthalmanna (Manjeri Sessions Division), and release him on bail, in
the interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI K.RAKESH, Advocate 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 2022
in
Crl.Appeal No.1406 of 2022
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Dated this the 04th 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 and the consequent
ostracisation, the victim, who was aged only 13 years at the
time of occurrence, has been put to untold miseries.
Considering the gravity and nature of the offence, the
Crl.M.A. No.1 of 2022 in
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 Sections 363 and 377 of the Indian Penal
Code, 1860 and under Sections 3(a) read with Section 5(i)
and 3(a), (c) and (d) read with 5(l) read with 6 and Section
11(iv) read with 12 of the Protection of Children from Sexual
Offences Act, 2012. The term of sentence the petitioner has to
undergo is imprisonment for 10 years.
5. The charge levelled against the petitioner was that
he subjected the victim, who was a boy aged 13 years, to
penetrative sexual assault after kidnapping and bringing him
to a room in a Madrassa. The petitioner subjected the victim
to unnatural sexual assault. The trial court believing the
evidence tendered by the prosecution found the petitioner
guilty as mentioned above.
Crl.M.A. No.1 of 2022 in
6. The learned counsel for the petitioner would submit
that there have been serious discrepancies in the evidence of
the victim. 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.
7. The learned Public Prosecutor would submit that the
petitioner has not involved in any other offence. He was a
teacher in a Madrassa and the victim was a student in the
same Madrassa. Having considered the submissions on either
side, I am of the view that the contentions raised in support
of the appeal require deeper consideration. The petitioner was
convicted and sentenced on 05.12.2022. He has been in jail
since the date of conviction. During investigation, he has been
in jail for more than 1½ years. Considering those aspects, I
am of the view that the execution of the sentence can be
suspended subject to conditions.
Crl.M.A. No.1 of 2022 in
Accordingly, this petition is allowed and the petitioner is
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 Pandikkad 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
SMF
04-04-2024 /True Copy/ Assistant Registrar
