Kerala High Court
Syed Muhammed vs State Of Kerala on 7 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Wednesday, the 7th day of February 2024 / 18th Magha, 1945
CRL.M.APPL.NO.1/2022 IN CRL.A NO.326 OF 2022
SC 736/2013 OF FAST TRACK SPECIAL COURT, KUNNAMKULAM
PETITIONER/APPELLANT:
SYED MUHAMMED, AGED 49 YEARS,
S/O. THANGALKUTTY, ALATHUR, VANDAZHY,
PALAKKAD DISTRICT, NOW RESIDING AT VANNAMCODE VEEDU,
THALIKKULAM VILLAGE, PULAMPUZHAKADAVU DESOM,
THRISSUR DISTRICT, PIN - 680569.
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 execution of sentence passed against
the petitioner vide judgment dated 02.02.2022 in S.C.No.736/2013 of Court
of Special Judge, Fast Track Special Court, Kunnamkulam, Thrissur Sessions
Division, during the pendency of above Criminal Appeal, so as to secure
the ends of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.C.A.CHACKO, C.M.CHARISMA, ALEKH
THOMAS, BABU V.P., 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 2022
in
Crl.Appeal No.326 of 2022
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Dated this the 7th day of February, 2024
ORDER
This is a petition filed under Section 389(1) of the Code
of Criminal Procedure, 1973. The appellant/petitioner seeks to
suspend the sentence by contending that there is every
possibility for allowing the appeal and to acquit him of all the
offences. He was convicted for the offences punishable under
Sections 377 and 376 of the Indian Penal Code, 1860 and
under Section 3(a) r/w Section 4, 5(m) r/w Section 6 and
Section 9(m) r/w Section 10 of the Protection of Children from
Sexual Offences Act, 2012 (POCSO Act). He was sentenced for
various offences and the longest period is rigorous
imprisonment for ten years for the offence punishable under
Section 5(m) r/w Section 6 of the POCSO Act.
2. The learned Public Prosecutor opposed the
petition by contending that there is ample evidence to
support the conviction of the petitioner. It is also contended
Crl.M.A.No.1 of 2022 in
that the petitioner being a neighbour subjected the victim,
who was only six years of age, to penetrative sexual assault
and hence he does not deserve any leniency.
3. Heard the learned counsel for the petitioner and
the learned Public Prosecutor.
4. A six year old child was subjected to penetrative
sexual assault by the petitioner by fingering. The petitioner is
a neighbour. The victim went to his house for playing with his
daughter. They along with another child were playing at
around 4.30 p.m. on 26.12.2012. The petitioner sent his
daughter and the other girl to buy chocolates. Nobody else
was in his house. Making use of that opportunity the
petitioner took the victim inside the house and committed the
offence. PW7 is the victim. She deposed in court almost in
tandem to her previous statement. The circumstances came
out through the evidence of other witnesses, including the
mother, corroborated the evidence of the child and the charge
against the petitioner has thus been established. When the
child deposed regarding commission of such an offence
Crl.M.A.No.1 of 2022 in
against her by none other than the father of her friend and
playmate, there cannot be any doubt about her veracity. What
she testified before the court is blemish free. Therefore, the
findings of the court below leading to the conviction of the
petitioner cannot prima facie be said to be wrong.
5. The petitioner has been in jail since 02.02.2022 on
which date he was convicted. The petitioner was under
pretrial detention from 09.03.2013 to 20.05.2013. The
petitioner has wife and children. Considering the period lapsed
after the date of the offence and also the period of detention
the petitioner has undergone, I am of the view that the
sentence imposed on him can be suspended. I take such a
view also for the reason that there was no complaint for the
prosecution that during the period when the petitioner was
released on interim bail as per the order dated 13.04.2023 he
had violated the conditions or tried to invade upon the safety
and security of the victim. There are no other criminal
antecedents also to the petitioner. In the circumstances, this
petition is liable to be allowed.
Crl.M.A.No.1 of 2022 in
6. 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
jurisdictional court, subject to the following conditions:
i) He shall deposit the entire amount of fine in the court
below within two months;
ii) the petitioner shall not reside in the panchayat where
the victim is residing or enter the local limits of
Vadanappally police station;
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
dkr
07-02-2024 /True Copy/ Assistant Registrar
