Kerala High Court
Muhammed vs State Of Kerala on 26 August, 2022
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Friday, the 26th day of August 2022 / 4th Bhadra, 1944
CRL.M.APPL.NO.1/2021 IN CRL.A NO. 169 OF 2021
Sessions Case No.530 of 2009 on the files of the Fast Track Special Court,
Kozhikode,
PETITIONER/APPELLANT:
MUHAMMED, S/O KUNCHAMMU,AGED 45 YEARS, AMBALATHINGAL HOUSE,
CHENNAMANGALOOR, MUKKAM, KOZHIKODE DISTRICT.
RESPONDENT/RESPONDENT
STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM KOCHI 682 031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction and sentence as against
the petitioner as per the judgment dated 23-2-2021 in Sessions Case No.530
of 2009 on the files of the Fast Track Special Judge, Kozhikode, pending
disposal of the above Criminal Appeal.
This Application coming on for orders upon perusing the application
and this court's order dated 7/6/2022 in Crl.A.No.169/2021 and upon
hearing the arguments of M/S K.M.SATHYANATHA MENON, SMT.KAVERY S THAMPI,
Advocates for the petitioners and of PUBLIC PROSECUTOR for the respondent,
the court passed the following:
DR.KAUSER EDAPPAGATH, J.
====================
Crl.M.A.No.1/2021 in
Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021
==============================
Dated this, the 26th day of August, 2022
ORDER
The above Criminal Miscellaneous Applications have been filed by the accused Nos.3 to 7 and 9 in SC No.530/2009 on the file of Fast Track Special Court, Kozhikode to suspend the execution of the sentence under Section 389(1) of the Code of Criminal Procedure (for short, the Cr.P.C.)
2. The petitioners along with the accused Nos.1, 2 and 10 faced trial for the offences punishable under Sections 366, 366A, 372, 373, 376, 376(g), 376(2)(g), 506(i) r/w 34 of IPC.
3. The accused No.1 is the mother, and the accused No.2 is the stepfather of the victim who was aged 13 years at the time of the incident. The prosecution case in short is that the accused Nos.1 and 2 received money from the accused Nos. 3 to 7 and 9 to 16 and offered the victim for sexual intercourse and accordingly they committed rape on the victim on different occasions at different places. It is further alleged that the accused No.2 also committed rape on the victim at his house on several occasions since Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:2:- midsummer vacation in 2007.
4. The court below after full-fledged trial found the accused No.1 guilty for the offences punishable u/s 372 of IPC, the accused No.2 for the offence punishable under Sections 376, 506(i) and 372 of the IPC, the accused No.3 to 7 and 9 for the offence punishable under Sections 373 and 376 of IPC and they were convicted for the said offence. The accused No.1 was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `20,000/-, in default to suffer rigorous imprisonment for 3 months for the offence u/s 372 of IPC, the accused No.2 was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `20,000/-, in default to suffer rigorous imprisonment for 3 months for the offence u/s 372 of IPC and to undergo rigorous imprisonment for 6 months for the offence punishable u/s 506(i) of IPC, the accused Nos. 3 to 7 and 9 were sentenced to undergo rigorous imprisonment for 5 years each and to pay a fine of `10,000/- each, in default to suffer rigorous imprisonment for 3 months each for the offence punishable u/s 373 of IPC and the accused Nos. 2 to 7 and 9 were further sentenced to undergo Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:3:- rigorous imprisonment for 10 years each and to pay a fine of `25,000/- each in default to suffer rigorous imprisonment for 4 months for the offence punishable u/s 376 of the IPC.
5. I have heard Sri.Sathyanatha Menon, the learned counsel for accused Nos.3 and 6, Sri.K.Rakesh, the learned counsel for accused No.4, Sri.B.Raman Pillai, the learned Senior counsel for accused No.5, Sri.T.G.Rajendran, the learned counsel for accused No.7, Sri.T.K.Ajithkumar, the learned counsel for accused No.9 as well as Smt.Ambika Devi, the learned Special Public Prosecutor.
6. The learned counsel for the accused/petitioners submitted that the court below seriously went wrong in relying on the uncorroborated solitary testimony of the victim which suffers from vital contradictions and omissions to hold the petitioners guilty. The counsel further submitted that there is undue delay in lodging the FIR which has not been satisfactorily explained by the prosecution. The counsel also submitted that the prosecution has miserably failed to prove the identity of the petitioners and failure to conduct the test identification parade is fatal to the Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:4:- prosecution. The counsel added that there is no satisfactory legal evidence to prove the age of the victim. In short, the submission of all the counsel is that the prosecution has miserably failed to prove the guilt of the petitioners, the court below wrongly convicted them and therefore they are entitled to be released on bail by suspending the sentence.
7. Per contra, Smt.Ambika Devi, the learned Special Public Prosecutor argued that the prosecution has succeeded in proving the case against the accused beyond a shadow of doubt and that the impugned judgment is well supported by reasons. The learned Special Public Prosecutor further submitted that it is a case where a minor girl aged 13 years was offered by her own parents for sex to various persons for money and she was brutally subjected to sexual assault by all the accused on several occasions at different places. Considering the grievous nature of the offence committed by the petitioners and in the absence of exceptional mitigating circumstances, the execution of the sentence is not liable to be suspended, submitted the learned Special Public Prosecutor.
Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:5:-
8. The Apex Court in a catena of decisions considered the parameters to be applied by the appellate court while considering the suspension of execution of sentence. In Kishori Lal v. Rupa and Others (2004 KHC 1531), it was held that the appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In State of Maharashtra v. Madhukar Wamanrao Smarth (AIR 2008 SC 1793), the Apex Court held that the gravity of the offence, the sentence imposed, and several other similar factors need to be considered by the Court. In Atul Tripathi v. State of Uttar Pradesh & Ors. (2014 (9) SCC 177), it was held that the appellate court shall judiciously consider all the relevant factors whether specified in the objections or not, like the gravity of the offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in the court, etc. before passing an order for release. In Gomti v. Thakurdas and Others (2007 KHC 4280), it was held that the mere fact that during the period when the accused persons were on bail during Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:6:- the trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. In Preet Pal Singh v. State of Uttar Pradesh and Another (2020 KHC 6484), it was held that as the discretion under S.389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal. In Shakunthala Shukla v. State of U.P. and Another (2021 KHC 6431), it was observed that once the accused are convicted for the very serious offence like one under S.302 IPC by the trial Court, there shall not be any presumption of innocence thereafter and therefore the High Court shall be very slow in granting bail to the accused pending appeals. However, the Apex Court in Shinde Gosai v. State of Gujarat (AIR 1999 SC 1859) held that when a convicted person is sentenced to a fixed period of sentence, the suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. It was further held that if for any Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:7:- reason the sentence of limited duration cannot be suspended, every endeavour should be made to dispose of the appeal on merits and in a case where the Appellate Court finds that due to practical reasons such appeal cannot be disposed of expeditiously, the Appellate Court must bestow special concern in the matters of suspending the sentence to make the appeal right meaningful and effective.
9. Let me consider each application to suspend the execution of sentence separately.
Crl. M.A No.1/2021 in Crl.Appeal No.169/2021 by the accused No.3
10. The specific allegation against accused No.3 is that he committed rape on the victim from June 2007 onwards at the bedroom of the newly constructed house of accused No.1 and that he also committed rape on the victim at three different lodges viz., Arora Lodge at Kozhikode, Gopika Resort at Ghundelpett and Thushara Lodge at Lekkidi.
11. It is true that the court below found that there is no satisfactory evidence to prove that the accused No.3 and the victim stayed at the three lodges mentioned above. However, Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:8:- there is convincing evidence to prove that accused No.3 committed rape on the victim at the house of the accused No.1. I went through the evidence of the victim. She specifically deposed that one day in the summer vacation, while she was studying in 7th standard, accused No.3 came to her house along with accused No.2 and then accused No.3 committed penetrative sexual assault on her in the bedroom with the support of the accused Nos.1 and 2. The way she was brutally sexually assaulted by the accused No.3 has been deposed by the victim in detail. She has also deposed that thereafter also on different occasions, accused No.3 came to her house and sexually assaulted her in the room where accused Nos.1 and 2 used to sleep. The victim has also clearly identified the accused No.3 at the dock. I see no infirmity in the said evidence of the victim. No cogent ground giving rise to substantial doubts about the validity of the conviction has been canvassed by the accused No.3. Thus, I am of the view that the execution of his sentence is not liable to be suspended.
Crl.M.A. No.1/2021 in Crl.Appeal No. 153/2021 by the accused No.4 Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:9:-
12. The specific case against the accused No.4 is that one day in June, 2008, accused Nos.1, 2 and 4 took the victim and her brother (PW26) to Ootty in a car and then accused No.4 committed sexual assault on her in a room at Sree Balaji Cottage and Resort at Ooty. It is further alleged that thereafter on different days, in the bedroom of the house of the accused No.1, accused No.4 sexually assaulted her.
13. It is true, as rightly argued by the learned counsel for the accused No.4, that there is no satisfactory evidence to show that the accused No.4 and the victim stayed at Sree Balaji Cottage and Resort. However, the evidence of the victim is so convincing to prove that she was sexually assaulted by the accused No.4 at the house of the accused No.1. The learned counsel for the accused No.4 submitted that the accused No.4 has been implicated in the case by mistaken identity. It is submitted that Jamal mentioned in Ext.P2 FIS is not the accused No.4. According to the counsel, the actual name of the accused No.4 is Jamaludheen and not Jamal. However, the victim clearly identified the accused No.4 at the dock. Her evidence would Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:10:- show that Jamal used to come to her house, and she had the freedom to talk and play with him. She further deposed that whenever there was a quarrel between accused Nos.1 and 2, Jamal used to come to their house and solve it. Thus, the victim was familiar with the accused even before the alleged incident. Hence, the argument of the learned counsel for accused No.4 that he was implicated by mistaken identity cannot be accepted. For all these reasons, I am of the view that accused No.4 is not entitled to get the execution of his sentence suspended. Crl.M.A.No.1/2021 in Crl.Appeal No. 161/2021 by accused No.5
14. The name of the accused No.5 is shown as Musthafa @ Vichi. The specific case of the prosecution against accused No.5 is that, on a day in 2008, before the 8 th standard annual examination of the victim, accused Nos.2 and 5 took her to a secluded house in Wayanad in a Scorpio car belonging to accused No.5 and then he sexually assaulted her at the said house.
15. The learned counsel for the accused No.5 mainly canvassed two points before me. The first submission is that the accused No.5 had no name as Vichi. The person who committed Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:11:- rape on PW1 is Aboobacker Siddique @ Vichi and not the accused No.5. According to the counsel, accused No.5 has been arrayed as an accused by mistaken identity. The second point canvassed by the learned counsel is that the investigation agency could not even locate the house where the accused No.5 allegedly committed rape on the victim.
16. The definite case of the accused No.5 is that he does not have a name called Vichi and his actual name is Musthafa. To prove the said contention, he examined DWs 1 and 2 and produced Exts. D5 to D8. DW1 is a Panchayat Member. He stated that the name of the accused No.5 is Musthafa. He does not have a name like Vichi. Exts.D5 to D8 also would show that the official name of the accused No.5 is Musthafa. DW2, a social worker, deposed that she along with the victim went to the office of DYSP, Thamarasserry on 25/2/2009 and at that time victim told her as well as to the DYSP that the actual name of Vichi is Aboobacker Siddique. According to accused No.5, the real culprit is Aboobacker @ Vichi. His photograph was marked through DW2. The name of the accused No.5 was not stated by the victim either Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:12:- in Ext.P2 FIS or in the statement of the victim recorded under Section 161 or 164 of Cr.P.C. PW27, the investigating officer, deposed that he could not find any document nor did he question any witness to ascertain whether the person named Vichi was the accused No.5. That apart, the physical features given by the victim to the police during the investigation did not match with the physical features of accused No.5. PW26, the brother of the victim, also identified Ext. D2 as the photograph of Vichi. Thus, a serious doubt has been created as to the identity of Vichi who allegedly committed rape on the victim.
17. The allegation against the accused No.5 is that he committed rape on the victim on a single occasion at a house at Wayanad. But it is pertinent to note that the investigating officer did not locate the said house. No mahazar of the said house was prepared. When a specific question was put to the investigating officer, he admitted that even though the accused No.5 was taken into custody, during investigation, he did not take any steps for the identification of the place of occurrence. The absence of proper identification of the place of occurrence was Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:13:- not taken into consideration by the court below.
18. For these reasons, I am of the view that accused No.5 has made out a case to get the execution of his sentence suspended till the disposal of the appeal.
Crl.M.A.No.1/2021 in Crl.Appeal Nos.167/2021 and 178/2021 by the accused Nos.6 and 9 respectively
19. These two applications can be considered together. The name of accused No.6 is Kolakkadan Noushad @ Mon and the name of the accused No.9 is Noushad. The specific allegation against accused No.6 is that one day in 2008, after the re- opening of the school after summer vacation, accused No.6 with the help of accused No.2 sexually harassed the victim at the bed room of the house of accused No.1. It is further alleged that on another day, the accused Nos.2 and 6 brought the victim to the house of accused No.6 and then accused No.6 committed sexual intercourse with her at a bed room in his house.
20. The specific allegation against accused No.9 is that one day in between 25/5/2018 and 31/5/2018, accused Nos.1, 2 and 9 brought the victim to an unfinished house of the accused No.9 at Vakkannur and accused No.9 committed sexual Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:14:- intercourse with her at the said house. The evidence given by the victim discloses that accused Nos.6 and 9 committed rape on her as alleged. However, the victim could not properly identify the accused Nos. 6 and 9 at the dock. The victim in chief examination wrongly identified accused No.6 as accused No.9 and accused No.9 as accused No.6. It is true that during re- examination, the victim correctly identified accused Nos.6 and 9. But, it is pertinent to note that the reexamination was done on the next day. As rightly argued by the learned counsel for accused Nos.6 and 9, the possibility of tutoring the witness and making identification on the next day cannot be ruled out. The prosecution case is that the victim was subjected to sexual assault by number of persons. Hence, proper dock identification of each accused is absolutely necessary. Since there is serious doubt as to the identification of these two accused, I am of the view that the execution of sentence passed against them can also be suspended.
Crl.M.A.No.1/2021 in Crl.Appeal No.157/2021 by accused No.7
21. The specific allegation against accused No.7 is that Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:15:- one day in June, 2008, the accused Nos.2, 7 and 8 took the victim in an Indica car bearing Reg.No KL-6B-2701 belonging to accused No.7. The car stopped at a place called Valillapuzha and accused Nos.2 and 8 got down from the car and accused No.7 committed sexual intercourse on the victim in the car. PW1 did not state the name of the accused No.7 either in the First Information Statement, in the recorded statement of the victim u/s 164 of Cr.P.C or in the initial statements of the victim recorded u/s 161 of Cr.P.C. The name of the accused No.7 was disclosed to the first time in the fifth statement given by the victim. The allegation is that accused No.7 committed rape on the victim in a car. No mahazar of the car was prepared also. The victim during cross-examination admitted that she has no previous acquaintance with accused No.7 and she did not disclose any identification mark to the police. She also stated that she cannot say where the car was parked or whether it was near the roadside or not. That apart, accused No.8 who allegedly accompanied accused No.7 in the car was found not guilty. For all these reasons, I am of the view that accused No.7 has also made out a Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:16:- case to get the execution of his sentence suspended till the disposal of the appeal.
In the light of the above findings, Crl.M.A.No.1/2021 in Crl.Appeal No. 153/2021 and Crl.Appeal No.169/2021 are dismissed. Crl.M.A.No.1/2021 in Crl.Appeal Nos. 161/2021, 167/2021, 157/2021 and 178/2021 are allowed. The execution of the sentence of accused Nos.5, 6, 7 and 9 shall stand suspended on the following conditions.
i) They shall execute a bond for `1,00,000/-
(Rupees One lakh only) each with two solvent sureties for the like sum each to the satisfaction of the court below
ii) They shall deposit the entire fine amount within one month at the court below.
iii) They shall surrender their passport, if any, at the court below within one month. If they do not have a passport, they shall file affidavits to that effect.
iv) They shall not leave the State of Kerala without the permission of the trial Court.
Crl.M.A.No.1/2021 in Crl.Appeal Nos.153, 157, 161, 167, 169 & 178/2021 -:17:-
v) They shall not enter into the jurisdiction of the police station where the victim resides.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE Rp 26-08-2022 /True Copy/ Assistant Registrar