Mohamed Asarudeen v. Inspector Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 19.03.2024 PRONOUNCED ON : 27.03.2024

CORAM

THE HONOURABLE MR. JUSTICE M.S.RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Mohamed Asarudeen .. Petitioner/A13

Versus

State by Inspector of Police, W-13, All Women Police Station, Washermenpet, Chennai.

(Cr.No.18/2020) ..Respondent/Complainant Prayer:-Criminal Miscellaneous Petition filed under Section 389[1] of Cr.P.C., to suspend the sentence imposed on the petitioner in Spl.S.C.No.12 of 2021, on the file of the learned Sessions Judge, Special Court for Exclusive Trial of cases under POCSO Act, Chennai, by judgment dated 26.09.2022, till the disposal of the above mentioned appeal. For Petitioner : Mr.P.Pugalenthi For Respondent : Mr.E.Raj Thilak Additional Public Prosecutor

assisted by Mr.C.Aravind

ORDER

[Order of the Court was made by SUNDER MOHAN , J] This criminal miscellaneous petition has been filed seeking to suspend the sentence imposed on the petitioner vide judgement and order dated 26.09.2022 passed in Spl.S.C.No.12 of 2021 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of cases under POCSO Act, Chennai, and to enlarge the petitioner on bail pending disposal of the appeal.

2. It is the case of the prosecution that A1 to A5 are close relatives, and that A2 is the cousin sister of the victim child. The prosecution alleges that all the five accused, with an intention to earn money from prostitution, took the victim child from her parents on 29.08.2020 with a false promise to provide education to her, and involved her in prostitution and subjected her to have sexual intercourse with A10 to A22 from 29.08.2020 to 09.11.2020 and on various dates. The petitioner herein is arrayed as A13.

3. Heard the learned counsel for the petitioner [A13] and Mr.E.Raj Thilak, the learned Additional Public Prosecutor appearing for the respondent/State.

4.Learned counsel for the petitioner submitted that the petitioner was identified as an accused based on the confession of A1 and A3 and reading of their confessions would show that they have not named the petitioner; that PW2's identification in Court is suspect; that the petitioner ought not to have been convicted only on that basis; that the petitioner is in custody from 24.11.2020 right from the day of arrest; and since the appeal is not likely to be taken up in the near future, prayed for suspension of sentence. 5.Learned Additional Public Prosecutor, per contra, submitted that there is evidence to show that the petitioner was identified by the victim and the trial Court was right in convicting the petitioner, and prayed for dismissal of the petition for suspension of sentence.

6. We have carefully considered the rival submissions and perused the records.

7.It is seen from the evidence of PW2, the victim that the petitioner was shown to the victim and was asked whether she knew him and the victim had stated that he had come to the house of one Sandhiya [A3], where she was subjected to sexual intercourse. However, we find in the deposition of PW2 that there is an endorsement by the trial Court to the effect that PW2 had privately informed the learned Judge that she was unable to identify some of the accused and that some of the accused were shown to her in the phone. Apart from the identification by the victim, there is no other evidence. This requires consideration.

8. Therefore, in view of the above and considering the fact that the petitioner is in custody for nearly 3 years and 4 months, and the appeal is not likely to be taken up in the near future, we are inclined to grant the relief of suspension of sentence to the petitioner herein.

9. Accordingly, this criminal miscellaneous petition stands allowed and the sentence of imprisonment is suspended and the sentence imposed on the petitioner/A13 is suspended on the following conditions: (i) The petitioner shall execute a bond for a sum of Rs.25,000/-, with two independent sureties, each for a like sum to the satisfaction of the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai; (ii)The petitioner and the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the trial Court may obtain a copy of their Aadhar card or Bank pass Book and mobile numbers to ensure their identity; and (iii)The petitioner shall appear before the trial Court on the first working day of every month at 10.30 a.m. until the disposal of the appeal and if he is not able to appear before the trial Court on any day, he shall make arrangements to file an application under Section 317 Cr.P.C. and shall appear before the trial Court on any other day in lieu of the date of his absence, as directed by the trial Court.

[M.S.R.,J.] [S.M.,J.] 27.03.2024

ars Issue order copy by 27.03.2024 Upload the order copy forthwith.

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M.S.RAMESH, J and SUNDER MOHAN, J ars To 1.The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai 2.The Inspector of Police, W-13, All Women Police Station, Washermenpet, Chennai.

3.The Superintendent of Prison, Central Prison - I, Puzhal.

4.The Public Prosecutor, Madras High Court, Chennai - 600 104.

Pre-delivery order in

27.03.2024