Kerala High Court
Swamy Narayana Dharmavrathan @ ... 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
CRL.M.APPL.NO.1/2024 IN CRL.A NO.412 OF 2024
SC 402/2019 OF THE FAST TRACK SPECIAL COURT, IRINJALAKUDA
APPLICANT/APPELLANT/ACCUSED:
SWAMY NARAYANA DHARMAVRATHAN @ THAMARAKSHAN, AGED 58 YEARS,
S/O. RAGHAVAN, VENATTU VEEDU, KALLUKEERI DESOM, PERUVANTHANAM
VILLAGE,
IDUKKI, PIN - 685531.
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE 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 sentence till the
disposal of this appeal and be further pleased to release the petitioner
on bail.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.C.P.UDAYABHANU, NAVANEETH.N.NATH,
Advocates 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.412 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 execution of his sentence suspended.
2. The learned Public Prosecutor 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 to the victim boy, who was aged only 13 years at the time of occurrence, has been put to untold miseries. Considering the gravity and nature of the offence and the tenure of the sentence imposed, 2 Crl.M.A.No.1 of 2024 in Crl.Appeal No.412 of 2024 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 the offences punishable under Sections 10 r/w 9(f) and (l) and 18 of Section 4 r/w 3(c) of the Protection of Children from Sexual Offences Act, 2012 and under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The term of sentence the petitioner has to undergo is imprisonment for seven years.
5. The charge levelled against the petitioner was as follows:-
The petitioner was the Secretary of an Ashramam in Kottanellur. From the middle of the month of May, 2018 till 07.06.2018 the petitioner sexually assaulted the victim boy aged 13 years by attempting to catch on his genitals and also attempted to insert his genital into mouth. The trial court, believing the evidence tendered by the prosecution found the 3 Crl.M.A.No.1 of 2024 in Crl.Appeal No.412 of 2024 petitioner guilty as mentioned above.
6. The learned counsel for the petitioner would submit that even accepting the evidence of the victim in toto, the offence that was revealed is only the one punishable under Sections 8 of the PoCSO Act. No offence under Section 10 or an attempt to commit the offence punishable under Section 4 of the Act is made out. Going by the narration about the incident by PW1 as is seen from the judgment, the petitioner tried to persuade the victim in order for subjecting him to penetrative sexual assault. What PW1 deposed is that he asked the victim to catch on his penis and to insert it in mouth, but the victim refused. Considering the nature of the incident as narrated by the victim, the contention that no offence of attempted penetrative sexual assault is attracted, requires deeper consideration. Also, it is contended that no evidence to prove that the petitioner was in management of the institution is adduced by the prosecution. Of course, the victim deposed that the petitioner was the manager of the hostel. However, the contention of the petitioner in that 4 Crl.M.A.No.1 of 2024 in Crl.Appeal No.412 of 2024 regard also requires serious consideration.
7. In view of the aforesaid matters and the other grounds urged by the petitioner to assail the impugned judgment, I am of the view that the petitioner can be granted bail by suspending execution of the sentence. I take such a view also for the reason that the petitioner has been in jail since 15.02.2024.
8. Accordingly, this petition is allowed and the petitioner is granted bail on his executing a bond for Rs1,00,000/- (Rupees one lakh only), with two solvent sureties for the like amount each, to the satisfaction of the trial court, subject to the following conditions:
i) He shall deposit entire fine amount in the trial court within one month;
ii) He shall not enter the Thrissur revenue district, where the institution is located and Palakkad revenue district, where the victim is now staying, till the final disposal of this appeal;
iii) During the bail period, he shall not get involved in any offence; and
iv) He shall not contact or try to intimidate the victim or witnesses examined in the case.5
Crl.M.A.No.1 of 2024 in Crl.Appeal No.412 of 2024 In case of breach of any of the above conditions, the prosecution shall be at liberty to apply before this Court for cancellation of the suspension of sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr 11-04-2024 /True Copy/ Assistant Registrar