Kerala High Court
Biju vs State Of Kerala on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.11 OF 2024
SC 1777/2018 OF FAST TRACK SPECIAL COURT, NEYYATTINKARA
APPLICANT/APPELLANT:
BIJU, AGED 42 YEARS, S/O SUKUMARAN, THERIVILA PUTHENVEEDU,
NELLIMOODU P.O., KAZHIVOOR DESOM, KOOTTUKAL VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695524.
RESPONDENT/RESPONDENT:
STATE OF KERALA
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 conviction and execution of sentence
passed against petitioner by judgment dated 13.12.2023 in S.C.No.1777/2018
by the Fast Track Special Court of Session, Neyyattinkara and to enlarge
the applicant/appellant on bail, pending disposal of the Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI R.T.PRADEEP, 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.11 of 2024
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Dated this the 12th 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 and the consequent ostracisation, the victim, who was aged only 15 years at the time of occurrence, has been put to untold miseries. Considering the gravity of the offence and the tenure of the 2 Crl.M.A.No.1 of 2023 in Crl.Appeal No.11 of 2024 sentence imposed, the petitioner is not entitled to get an order suspending 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 366A and 376(2)(n) of the Indian Penal Code, 1860 and under Sections 5(l) r/w 6 and 7 r/w 8 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 10 years.
5. The charge levelled against the petitioner was as follows:
At about 8.45 a.m. on 05.08.2016 the petitioner kidnapped the victim in his autorickshaw from her house and took her to Arumana and subjected her to penetrative sexual assault at a room in a lodge there. Later on 03.09.2016, 25.10.2016 and 12.11.2016 also the petitioner took her to the same lodge and repeated similar sexual invasions. On 19.04.2017 the petitioner took the victim in his autorickshasw to the parking 3 Crl.M.A.No.1 of 2023 in Crl.Appeal No.11 of 2024 area of a hospital at Aralummoodu and subjected her to penetrative sexual assault inside the autorickshaw, which was parked in the waste dumping area of the hospital. The petitioner, having a wife and children, perpetrated the offence against the victim after giving an assurance to marry her. The trial court, believing the evidence tendered by the prosecution, found the petitioner guilty.
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 only the last incident occurred within the jurisdiction of the trial court and the evidence regarding that incident is totally insufficient to find the allegations proved. Therefore, the trial court did not have jurisdiction to try the petitioner. The victim subsequently had eloped with another boy and after lapse of a considerable period thereafter, this prosecution was launched. The medical evidence is also quite improbable. Pointing out those aspects the learned counsel for the petitioner maintains 4 Crl.M.A.No.1 of 2023 in Crl.Appeal No.11 of 2024 that the conviction is bad in law. Yet another contention urged is that the victim sharply departed from her statement under Section 164 of the Code she had given and for that reason itself the judgment is liable to be set aside.
7. The departure from the statement under Section 164 of the Code pointed out by the eptitioner is not very material. The narration by the victim regarding the incident was credible. True that there was delay. The relationship between the parties was such that the victim reposed confidence on the petitioner. Hence, believing the words of the petitioner the victim used to travel in his autorickshaw and yield to his sexual desires. In such circumstances, the delay cannot be considered very material. The petitioner, who is a married man, gave assurance to marry the victim in order to satiate his lust. Taking the aforesaid aspects, I am of the view that findings entered into by the trial court cannot be said to be incorrect at this stage. The question of jurisdiction is also not now available to be countenanced for occurrence of the 5 th incident is found proved.
5Crl.M.A.No.1 of 2023 in Crl.Appeal No.11 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 2023 in Crl.Appeal No.11 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 13.12.2023. Considering the circumstances in which the offence was committed, the age of the victim, 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 12-04-2024 /True Copy/ Assistant Registrar