Kerala High Court
Abdul Khader vs State Of Kerala on 28 January, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Tuesday, the 28th day of January 2025 / 8th Magha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1186 OF 2024
SC 1354/2022 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES UNDER POCSO ACT, MANJERI
APPLICANT/APPELLANT/ACCUSED:
ABDUL KHADER, AGED 49 YEARS,
S/O MUHAMMED, CHELUPADATH HOUSE,
PATHAMOOCHI, VENGARA POST,
MALAPPURAM, PIN - 676304.
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM,PIN - 682031.
(REPRESENTING INSPECTOR OF POLICE, VENGARA POLICE STATION)
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence in judgment
dated 12.06.2024 in S.C.No.1354/2022 on the file of the Special Court for
the Trial of offences under the protection of children from sexual
offences Act, Manjeri as against the applicant/appellant/accused 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.SIDHARTH O., ANWIN JOHN ANTONY,
P.C.MOIDEEN, SUSANTH SHAJI, MOHAMMED ASIF P., ALBIN A. JOSEPH, Advocates
for the petitioner and of the PUBLIC PROSECUTOR for the respondent, the
court passed the following:
P.T.O.
C.S.SUDHA, J.
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Crl.M.Appl. No.1 of 2024
in
Crl. Appeal No.1186 of 2024
---------------------------------------------------------------
Dated this the 28th day of January 2025
ORDER
This is an application filed under Section 430(1) of the
Bharathiya Nagarik Suraksha Sanhita, 2023, seeking
suspension of sentence of the applicant/accused in S.C.
No.1354 of 2022 on the file of the Court of Session, Manjeri.
The applicant/accused has been found guilty of the offences
punishable under Section 367, 377, 506 (1) IPC and Section
3(c) read with Section 4(2) & Section 9(p) read with Section 10
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 the applicant/accused will
have to undergo is for a period of 20 years.
2. The learned counsel for the applicant/accused
submitted that there are several inconsistencies and
improbabilities in the prosecution case. The incident is alleged to
have taken place in the toilet of a mosque, which is a public
place. There are no witnesses to the incident. Going by the
testimony of PW17, the investigating officer, the toilet is situated
near a public place and the wall of the toilet is only a half wall.
There is no evidence that the motorbike in which the
applicant/accused is alleged to have taken the victim has any
connection with the accused. There are inconsistencies in the
statement of PW1, the victim. To the doctor, the case is of anal
penetration. However, the medical evidence does not support the
same. It has come out in evidence that the first complaint was
given to the childline authorities. However, the said complaint
has not been produced before the court. There are several defects
in the investigation conducted. There has been no proper dock
identification of the accused. Hence, in these circumstances, the
trial court ought to have given the benefit of doubt and acquitted
the applicant/accused, goes the argument.
3. The application is opposed by the learned Public
Prosecutor who submits that except for the statement before the
doctor, the victim has given consistent statements in the FIS, 164
statement as well as in the court. The learned Public Prosecutor
on instructions also points out that during the trial of the case,
Crime No.896/2023, Vengara police station, was registered
alleging commission of offences punishable under Section 195A
and 506(1) IPC in which case a relative of the applicant/accused
is alleged to have threatened the relative of the mother of the
victim herein with dire consequences if they deposed against the
accused. It is also alleged that there was threat that the
prosecution witnesses would be implicated in NDPS cases.
Hence, in such circumstances, she submits that no special
circumstances are made out to suspend the sentence.
4. Heard both sides.
5. The prosecution case is that PW1, the victim boy, in
the last week of August 2022 at about 09:30 a.m. was taken by
the accused in a motorbike to the toilet of a mosque and the
applicant/accused is alleged to have committed carnal intercourse
against the order of nature. I was taken through the FIS of PW1;
his 164 statement as well as the alleged history that was narrated
to the doctor. As rightly pointed out by the learned Public
Prosecutor, except for the alleged history recorded by the doctor,
there are no inconsistencies in the statements given by PW1 in
his FIS, 164 statement or in the testimony given before the court.
It is well settled that defects in investigation is not a ground to
throw out the prosecution case and illegalities or irregularities
committed by the investigating officer is not the fault of the
victim in the case.
6. Further, it is well settled that in considering an
application for suspension of sentence, the appellate court is only
to examine if there is such patent infirmity in the order of
conviction that renders the order of conviction prima facie
erroneous. Where there is evidence that has been considered by
the trial court, it is not open to a court considering an application
for suspension to reassess and reanalyze the same evidence and
take a different view, to suspend the execution of the sentence
and release the convict on bail. The arguments advanced by the
learned counsel for the applicant/appellant can be considered
while the appeal is heard on merits. This is not a case in which
the discretion under Section 430(1) BNSS is required to be
invoked. Therefore, taking into account all these factors and the
gravity of the offence committed by the accused, I am not
inclined to suspend the sentence.
Hence, the application is dismissed.
Post for hearing on 27/08/2025.
Sd/-
C.S.SUDHA
NP
JUDGE
28-01-2025 /True Copy/ Assistant Registrar
