Kerala High Court
Xxxxxxxxxx vs State Of Kerala on 17 January, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 17th day of January 2025 / 27th pousha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1247 OF 2024
SC 708/2020 OF FAST TRACK SPECIAL COURT, NILAMBUR
APPLICANT/APPELLANT:
XXX
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY 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 in Sessions
Case No.708 of 2020 on the file of the Honourable Court of Special Judge
Fast Track Special Court, Nilambur, 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, RAYEES P., ALWIN
JOSEPH, BENSON AMBROSE, AISWARYA K.M., Advocates for the applicant 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.1247 of 2024
&
Crl. Appeal No.1247 of 2024
---------------------------------------------------------------
Dated this the 17th day of January 2025
ORDER
This application under Section 430(1) of the Bharatiya Nagarik
Suraksha Sanhita, 2023, has been filed seeking suspension of
sentence of the applicant/accused in S.C.No.708 of 2020 on the file
of the Court of Session, Nilambur. He has been found guilty of the
offences punishable under Sections 366 IPC and Section 5(l) and
5(m) read with Section 6 of the Protection of Children from Sexual
Offences Act, 2012. He has been sentenced to varying terms of
imprisonment for the aforesaid offences. The sentences have been
directed to run concurrently. The maximum period of imprisonment
he will have to undergo is ten years.
2. The learned counsel for the applicant/accused submits
that this is a false case registered against the applicant/accused.
Some of the parents including the appellant/accused and others had
given a complaint against the hostel authorities where the victim was
staying. Due to the said enmity, the false case has been registered.
Even the mother examined as PW10 had turned hostile. The
medical evidence does not support the case of penetrative sexual
assault. The prosecution case is that during the period from 2017 to
2018, three persons including the accused herein committed
penetrative sexual assault on the victim girl on various dates. It is
submitted that the applicant/accused has been undergoing
imprisonment for the past 1½ years and hence the sentence may be
suspended.
3. The learned Public Prosecutor strongly opposes the
application and submits that merely because evidence has come on
record that hymen has not been torn, taking into account the age of
the child, who was only 12 years at the time of the incident, it cannot
be concluded that no offence took place. It is also pointed out that
the argument advanced by the defence that this is a false case is
incorrect because the complaint against hostel authorities were given
only after the registration of the present crime. She also points out
that no special circumstances are made out to suspend the sentence.
4. Heard both sides.
5. The prosecution case is that the accused, a neighbour of
PW1, in September 2017 during the Onam holidays and in
December 2018 during the Christmas holidays, kidnapped the girl
from the lawful guardianship of PW10 her mother, and committed
penetrative sexual assault on her. On going through the medical
evidence which is discussed in paragraph no.20 of the impugned
judgment, it is seen that there were no injuries on the private parts of
the victim and the hymen was also reported to be intact. As pointed
out by the learned counsel for the applicant/accused the allegation is
that apart from the appellant/accused in the case on hand, two other
persons had repeatedly committed penetrative sexual assault on the
girl on various days during the period 2017-2018. In the light of the
medical evidence and the facts and circumstances of the case it
prima facie appears that the applicant/accused has an arguable case.
It is made clear that this observation has been made only for the
purpose of this application and the question whether the offence of
rape has in fact taken place is a matter that will have to be decided in
the final hearing. Taking into account the facts and circumstances of
the case and as the appellant/accused is undergoing imprisonment
for the last 1½ years and also since the appeal is of the year 2024,
there is no possibility of the appeal being taken up for hearing in the
near future, the substantive sentence of imprisonment is suspended
till the disposal of the appeal subject to the following conditions:-
i) The applicant/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) He shall deposit the entire fine amount within a
period of two months from the date of receipt of a
copy of this order;
iii) He shall not in any way contact or attempt to
contact the victim or family member(s) in any
manner;
iv) He shall not commit any offence(s) while on bail;
v) He shall not enter the police station limits of
Nilambur and Viyyur police stations until further
orders.
vi) If the conviction and sentence of the applicant 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;
vii) It is also made clear that if any of the
conditions are violated, the bail shall stand
cancelled.
Post on 08/04/2025.
Sd/-
C.S.SUDHA
JUDGE
ak
17-01-2025 /True Copy/ Assistant Registrar
