Kerala High Court
Xxxxxx vs State Of Kerala on 11 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 11th day of April 2024 / 22nd Chaithra, 1946
CM.APPL.NO.1/2024 IN CRL.A NO.116 OF 2024
SC 1059/2018 OF SPECIAL COURT/ADDITIONAL SESSIONS COURT -I,THALASSERY
APPLICANT/APPELLANT:
XXX
RESPONDENT/RESPONDENT:
STATE OF KERALA (SHO KANNAVAM POLICE STATION)
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 execution of the sentence imposed on
the petitioner in S.C.No.1059/2018 on the file of the Special
Court/Additional Sessions Court - I, Thalassery, pending disposal of the
appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI P.P.RAMACHANDRAN, Advocate for the
petitioner and of the PUBLIC PROSECUTOR for the respondent, the court
passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2024
in
Crl.Appeal No.116 of 2024
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Dated this the 11th day of April, 2024
ORDER
This is a petition filed by the appellant under Section 389(1) of the Code of Criminal Procedure, 1973 (Code). The petitioner would contend that he is innocent and there is every chance for allowing the appeal and acquitting him. He was on bail during the trial of the case. In such circumstances, he claims that he is entitled to get his sentence suspended.
2. The learned Public Prosecutor filed an objection on behalf of the respondent. It is contended that the evidence adduced by the prosecution proved beyond doubt that the petitioner had committed the offence alleged against him. The offence proved against the petitioner is grievous. On account of the offence he has committed on the victim, who was aged about five years only at the time of occurrence, has been put to untold miseries. Considering the gravity and nature of the 2 Crl.M.A.No.1 of 2024 in Crl.Appeal No.116 of 2024 offence and the tenure of the sentence imposed, the petitioner is not entitled to get an order to suspend the sentence.
3. Heard the learned counsel for the appellant and the learned Public Prosecutor.
4. The petitioner was convicted for offences punishable under Sections 377 and 506(i) of the Indian Penal Code, 1860 and under Sections 3(a) r/w 4, 5(l) & 5(m) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. The longest term of sentence the petitioner has to undergo as per the impugned judgment is imprisonment for 20 years.
5. The charge levelled against the petitioner was that during the period 2015-2016 while the victim was studying in UKG, the petitioner used to take the child to his house by luring him offering sweets and subjected the child to carnal intercourse. The petitioner did so on multiple occasions. The child was threatened not to reveal the incidents to anyone. The trial court, believing the evidence tendered by the prosecution, found the petitioner guilty. 3 Crl.M.A.No.1 of 2024 in Crl.Appeal No.116 of 2024
6. The learned counsel for the petitioner would submit that there have been serious discrepancies in the evidence of the victim and there is delay in launching the prosecution. The learned counsel for the petitioner further would submit that the age of the child was not proved by the prosecution and therefore no conviction for an offence under the PoCSO Act could be possible in view of the law laid down by this Court in Shaju v. State of Kerala [2022 (5) KLT 395]. It is pointed out that Ext.P1 although styled as a birth certificate, it is only a certification by the school authorities and an inadmissible document. Similarly, Ext.P11, which was brought to the court by PW15, the Headmistress of the school, where the child studied in UKG, is an incomplete document and therefore the same also cannot be used to prove the age of the victim. While the date of birth of the child is shown as 14.06.2011 in Ext.P11, PW2 mother stated that the date of birth of the victim was 14.06.2012. That also is pointed out as a reason to attack the finding of the trial court regarding age of the victim.
4Crl.M.A.No.1 of 2024 in Crl.Appeal No.116 of 2024
7. It is true that when PW12 deposed about the date of birth of the child there occurred such a mistake. Even when the victim was examined before the court in 2023, he was aged only 11 years. The incident occurred while the victim was studying in UKG. It was with respect to the age of such a child, the aforesaid contentions were raised by the petitioner. There may be dispute about the exact age and date of birth of the child. But in the light of specific assertion about the age by the mother, PW2, which by itself may be sufficient, if reliable, to prove the age in light of the law laid down by this Court in Biju v. State of Kerala [2024 (2) KHC 297], there cannot be any doubt as to the fact that the child was below the age of 12 years at the time of occurrence, which was in 2015-16. If so, the penetrative sexual assault would be an aggravated one attracting punishment under Section 6 of the PoCSO Act. The oral evidence of the victim together with that of PW12 and other circumstances, including the medical evidence, was placed reliance on by the trial court to find the petitioner guilty. I find no reason to hold the said findings totally incorrect at this stage.
5Crl.M.A.No.1 of 2024 in Crl.Appeal No.116 of 2024
8. The Apex Court in Atul Tripathi v. State of U.P. and another [(2014) 9 SCC 177] held that the court is expected to judiciously consider all the relevant factors like gravity of the offence, nature of the crime, age and criminal antecedents of the convict, impact on public confidence in court, etc. before ordering suspension of sentence.
9. In Preet Pal Singh v. State of Uttarpradesh [(2020) 8 SCC 645] the Apex Court held that unless there are strong compelling reasons for granting bail, notwithstanding an order of conviction, the sentence shall not be suspended.
10. The Apex Court after considering the principles of law evolved in earlier decisions in Omprakash Sahni v. Jai Shankar Chaudhary and another [AIR 2023 SC 2202] laid down the parameters for suspension of sentence in serious offences, which are;
i) Whether the case presented by the prosecution and accepted by the trial court can be said to be in a case in which, ultimately, there is a chance for acquittal;
ii) The court should be convinced that there is a fair chance 6 Crl.M.A.No.1 of 2024 in Crl.Appeal No.116 of 2024 for acquittal on the basis of the matters perceivable from the face of the record; and
iii) The court shall not re appreciate the evidence in order to decide the question whether or not the sentence should be suspended.
11. The petitioner was convicted on 16.12.2023. Considering the circumstances in which the offence was committed, the age of the victim and the sexual assault occurred on multiple occasions, I am of the view that the petitioner does not deserve any leniency. As stated, the contentions of the petitioner that his conviction is infirm and there is every chance for succeeding in the appeal, is not prima facie tenable. No mitigating or compelling circumstance entitling the petitioner to get the execution of the sentence suspended is substantiated. Viewed those aspects in the light of the law laid down in the decisions mentioned above, I am of the view that the petition is liable to be dismissed.
Hence, the petition is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr 11-04-2024 /True Copy/ Assistant Registrar