Kerala High Court
Xxx 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.53 OF 2023
SC 232/2019 OF THE FAST TRACK SPECIAL COURT, KOYILANDY
APPLICANT/APPELLANT/ACCUSED:
XXX
RESPONDENT/RESPONDENT/COMPLAINANT:
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 sentence imposed on the
applicant/appellant by the judgment dated 11.11.2022 in SC No.232/2019 of
the Fast Track (Special) Court, Koyilandy, to secure the ends of justice.
This Application coming on for orders upon perusing the
application and upon hearing the arguments of M/S.P.K.VARGHESE,
M.T.SAMEER, P.S.ANISHAD, K.R.ARUN KRISHNAN, DHANESH V.MADHAVAN, JERRY
MATHEW, BIJU KUMAR, REGHU SREEDHARAN, APARNA ANIL, RAMEEZ M. AZEEZ,
NAMITHA K.S., SUDARSANAN U., Advocates for the petitioner and of the
PUBLIC PROSECUTOR for the respondent, the court passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
....................................
Crl.M.A.No.1 of 2024
in
Crl.Appeal No.53 of 2023
...........................................................
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).
2. 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.
3. The learned Public Prosecutor opposes the petition by contending 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 is a child has been put to untold miseries. Considering the gravity of the offence and the tenure of the sentence imposed, the petitioner is not entitled to get an order to suspend the sentence.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
Crl.M.A.No.1 of 2024 in Crl.Appeal No.53 of 2023 2
5. The petitioner was convicted for the offence punishable under Section 377 of the Indian Penal Code, 1860 and Section 5(l) r/w 6 and 9(l) r/w 10 of the Protection of Children from Sexual Offences Act (POCSO) Act. The term of sentence the petitioner has to undergo as per the impugned judgment is imprisonment for 15 years.
6. The charge leveled against the petitioner was that at about 09:45 p.m., in a day in the month of February 2018, the petitioner was subjected the victim to sexual assault by kissing and fondling his penis at the room of the Mukri in Juma Masjid where the petitioner was an Ustad. Again on a day in March 2018, about 09:45 p.m, the petitioner again had subject to the victim to penetrative sexual assault by having anal sex.
7. 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. Therefore, the conviction is based on unreliable evidence, and the petitioner is entitled to get the sentence suspended. I am unable to agree with the contention of the learned counsel for the petitioner that the findings leading to conviction of the petitioner is wrong even prima facie.
8. The learned Public Prosecutor would point out that the petitioner involved in another crime of similar nature and he being Crl.M.A.No.1 of 2024 in Crl.Appeal No.53 of 2023 3 the teacher committed such an offence against the victim. Hence he is not entitled to get execution of the sentence suspended.
9. Besides this case, the petitioner was an accused in SC No.459 of 2020. The allegations in that case was also similar in nature. However, after trial, the petitioner was acquitted in that case as per the judgment dated 08.09.2020. The learned counsel for the petitioner would submit that the victim herein had settled the matter with the petitioner and for that reason also he is entitled to be released on bail. I am not reckoning the said submission inasmuch as the trial court acting upon the evidence of the victim found the petitioner guilty and convicted him. However, the fact that the petitioner has been in jail since 11.12.2022 and also was under detention for the purpose of this case for about two months during trial and he is aged about 55 years are mitigating circumstances. A lenient view can therefore be taken in the matter of suspension of the sentence.
10. Accordingly, this petition is allowed and the petitioner is granted bail on his executing a bond for Rs.1,00,000/- (Rupees one lakhonly), 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 two months;
Crl.M.A.No.1 of 2024 in Crl.Appeal No.53 of 2023 4
(ii) He shall not enter Koyilandy Police Station limit where the victim resides 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.
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 Dxy/dkr 12-04-2024 /True Copy/ Assistant Registrar