Kerala High Court
Xxxxxx vs State Of Kerala on 8 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 8th day of November 2024 / 17th Karthika, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1315 OF 2024
SC 1029/2021 OF FAST TRACK SPECIAL COURT II, THRISSUR
APPLICANT/APPELLANT/1ST ACCUSED:
XXX
RESPONDENT/RESPONDENT/COMPLAINANT:
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 applicant in
judgment dated 22.07.2024 in S.C.No.1029/2021 on the files of the Special
Judge, Fast Track Special Court - II, Thrissur. If the sentence is not so
suspended, the applicant and his family members will be put to irreparable
injuries and hardships. On the other hand, no prejudice will be caused to
the respondent if the sentence is so suspended.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.SARATH BABU KOTTAKKAL, ARCHANA
VIJAYAN, Advocates for the petitioner and of the PUBLIC PROSECUTOR for the
respondent, the court passed the following:
P.T.O.
C.S.SUDHA, J.
--------------------------------------------------------------
Crl.M.Appl. No.1 of 2024
in
Crl. Appeal No.1315 of 2024
---------------------------------------------------------------
Dated this the 8th day of November 2024
ORDER
This is an application filed under Section 430(1) of the
Bharathiya Nagarik Suraksha Sanhita, 2023, seeking
suspension of sentence of the applicant/first accused in S.C.
No.1029 of 2021 on the file of the Court of Session, Thrissur.
The applicant/first accused has been found guilty for the
offences punishable under Sections 363, 354, 354B, 376(1)
IPC and Section 3(a) read with Section 4(1) of the PoCSO Act.
The applicant/accused has been sentenced to varying terms of
imprisonment for the aforesaid offences. The sentences have
been directed to run concurrently. Therefore, the maximum
period of imprisonment that the applicant/accused will have to
undergo is for a period of 20 years.
2. It is submitted by the learned counsel for the
applicant/first accused that there are material contradictions and
inconsistency in the prosecution case which was never taken
into account by the trial court. To substantiate his case, Ext.D1
complaint, which is the first complaint given by PW13, the
victim, was also produced. However, the trial court without
considering the same wrongly convicted the accused and in
such circumstances, his sentence is liable to be suspended.
3. Per contra, It is submitted by the learned Public
Prosecutor that there is no material contradiction and the
mistake if any in the month and year referred to in Ext.D1 has
been clarified in the testimony of the prosecution witnesses.
Therefore, there is no material contradiction in the case. In such
circumstances, no exceptional circumstances are made out for
suspending the sentence.
4. Heard both sides.
5. The applicant who is the first accused in the crime
was 23 years at the time of incident and PW13, the victim, was
17 years. As per Ext.D1 dated 08/06/2020, the first complaint
given by the victim to the police, she says that she got
acquainted with the accused in September, 2018. The incident
in this case is alleged to have taken place on 15/06/2018 which
is obviously before the date referred to in Ext.D1. On going
through the impugned judgment, it is seen that after the alleged
incident, the parties had entered into a marriage agreement on
17/10/2019 and thereafter they started living together.
However, differences arose between the parties and they
separated. Thereafter, Ext.P13 FIS was given on 11/05/2021
which led to the registration of the crime. As pointed out by the
learned counsel for the applicant/first accused, there is no
reference of any rape in the first complaint, that is, Ext.D1. It
appears that marital disputes arose between the parties which
led to PW13 giving Ext.P13 FIS. On going through the
impugned judgment and Ext.D1, I find that the applicant/first
accused has an arguable case. In such circumstances and in the
interest of justice, the sentence imposed on the applicant/first
accused is suspended till the disposal of the appeal subject to
the following conditions:-
i) The applicant/first accused shall be released on
bail on executing a bond for ₹50,000/- (Rupees
fifty thousand only) with two solvent sureties each
for the like sum to the satisfaction of the trial court;
ii) Out of the total fine amount, he shall deposit an
amount of ₹50,000/- within a period of one month
from the date of receipt of a copy of this order.
iii) He shall not commit any offence(s) while on
bail;
iv) The applicant/first accused shall not in any
way contact or attempt to contact the victim or her
family member(s) in any manner;
v) If the conviction and sentence of the
applicant/first accused is upheld or even modified,
the time during which he is so released shall be
excluded in computing the term of his sentence as
provided in Section 430(4) BNSS.
vi) It is also made clear that if any of the
conditions are violated, the bail shall stand
cancelled.
Post on 20/03/2025.
Sd/-
C.S.SUDHA
NP
JUDGE
08-11-2024 /True Copy/ Assistant Registrar
