Kerala High Court
Akhil 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.1/2023 IN CRL.A NO. 1454 OF 2023
SC 821/2020 OF FAST TRACK SPECIAL COURT ,THRISSUR
APPELLANT/ACCUSED(IN CUSTODY):
AKHIL, AGED 23 YEARS, S/O.ALEX KALICHATH HOUSE, LALOOR MATHAIPURAM
COLONY DESOM, THRISSUR, PIN - 680012
RESPONDENT/COMPLAINANT:
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2. SUB INSPECTOR OF POLICE NEDUPUZHA POLICE STATION., PIN - 680007
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of the sentence passed
against the petitioner in order dated 31.07.2023 in S.C. 821/2020 on the
files of the (Fast Track) Special Judge,Thrissur to order his release on
bail, pending disposal of the above Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.E.VIJIN KARTHIK, JITHIN VARGHESE,
Advocates for the petitioner, and of PUBLIC PROSECUTOR for the respondent,
the court passed the following:
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2023
in
Crl.Appeal No.1454 of 2023
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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 9 years at the time of occurrence, has been put to untold miseries. 2 Crl.M.A.No.1 of 2023 in Crl.Appeal No.1454 of 2023 Considering the gravity and nature of the 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 the offence punishable under Section 376AB of the Indian Penal Code, 1860 and under Sections 6 r/w 5(l) and 6 r/w 5(m) 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 between 03.02.2018 and 31.05.2019 the petitioner induced the victim girl to come to his house and had showed her pornographic videos. She was subjected to sexual assault at his house. Later, on a day in May 2019 the petitioner by trespassing into the house of the victim subjected her to penetrative sexual assault. By such act the victim was even afflicted with physical illness and infection. 3 Crl.M.A.No.1 of 2023 in Crl.Appeal No.1454 of 2023 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 there was enmity to the petitioner for the mother of the victim and that had triggered to initiate a false prosecution against him.
7. Having gone through the judgment and heard the submissions on either side, I find no reason to accept the contention that on account of any enmity or grudge such a prosecution was initiated. The evidence tendered by the prosecution satisfactorily proved commission of the offence. The delay and the inconsistencies appeared in the evidence are duly explained also.
8. The father of the victim was a quarrelsome person. The mother used to be away and in such a vulnerable condition, the victim was subjected to sexual assault on 4 Crl.M.A.No.1 of 2023 in Crl.Appeal No.1454 of 2023 multiple occasions. The victim has to undergo the ordeal of continuous treatment as a result of the offence perpetrated against her.
9. 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.
10. 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.
11. 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;
5
Crl.M.A.No.1 of 2023 in Crl.Appeal No.1454 of 2023
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 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.
12. The petitioner was convicted on 31.07.2023. Considering the circumstances in which the offence was committed and 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