Kerala High Court
Jailani @ Lailani vs State Of Kerala on 3 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 3rd day of May 2024 / 13th Vaisakha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO. 158 OF 2024
SC 490/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT (POCSO), MUVATTUPUZHA
APPLICANT/APPELLANT/ACCUSED:
JAILANI @ LAILANI, AGED 48 YEARS,S/O. MYTHEEN, INCHAKUDIYIL HOUSE,
MADIYOOR,PALLARIMANGALAM,ERNAKULAM ., PIN - 686671
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to issue an interim order suspending the execution
of the sentence imposed on the Applicant in S.C. No.490/2019 on the file
of the Special Court, Muvattupuzha,(For the Trial of Protection of
Children from Sexual offences Act cases) by Judgment dated 18.01.2024
ordering his release on bail , pending final disposal of the above
criminal appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/s.SALIM V.S., N.M.SIDHIC, A.M.FOUSI,
A.B.AJIN, M.M.ANSAR, Advocates for the petitioner , and of PUBLIC
PROSECUTOR for the respondent, the court passed the following:
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2024
in
Crl.Appeal No. 158 of 2024
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Dated this the 3rd day of May, 2024
ORDER
The appellant filed this petition 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
to suspend execution of the sentence imposed on him.
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 grave. On account of
the offence he has committed and the consequent
ostracisation, the victim, who was aged only 12 years at the
time of occurrence, has been put to 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 Sections 376(3) and 354A(1)(i) of the
Indian Penal Code, 1860 and under Sections 4(2) r/w 3(b)
and 10 r/w 9(l) of the Protection of Children from Sexual
Offences Act, 2012. The term of sentence the petitioner has
to undergo is imprisonment for 20 years.
5. The charge levelled against the petitioner are as
follows:
On 31.03.2019, the victim along with PWs.2 and 3 and
father of the victim went to Munnar in a car. The petitioner
was the driver. On their way back home, the car stopped at
Kothamangalam at about 8.00 p.m. When the others went
out to purchase medicines, the petitioner sexually assaulted
the victim girl, who was aged 12 years, by inserting his
finger to her vagina. On the same day, at about 9.00 p.m.
the petitioner sexually assaulted the victim again by pressing
her breast. 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 the delay in lodging the complaint. Therefore,
the conviction is based on unreliable and insufficient
evidence, and the appeal will be allowed. It is further
contended that the occurrence of such an incident while one
more person was in the car was quite improbable. Further,
there was no necessity for PW2 to purchase medicine from
Kothamangalam or even go to Kothamangalam to reach
back to their home. 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 the
conviction of the petitioner are wrong.
7. The period of sentence imposed is 20 years. The
date of occurrence is 31.03.2019. A minimum sentence of 20
years was not stipulated for the offence at that time. The
petitioner was convicted and sentenced on 18.01.2024.
Although the contentions of the petitioner are not able to be
accepted at this stage, the same require deeper
consideration. In view of 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 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 Pothanikkad
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
dkr
03-05-2024 /True Copy/ Assistant Registrar
