Scaria Mathew @ Appachan vs State Of Kerala

Kerala High Court

Scaria Mathew @ Appachan vs State Of Kerala on 3 May, 2024

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
            Friday, the 3rd day of May 2024 / 13th Vaisakha, 1946
                CRL.M.APPL.NO.3/2024 IN CRL.A NO. 416 OF 2024
           SC 26/2023 OF FAST TRACK SPECIAL COURT, IDUKKI,PAINAVU
APPLICANT/APPELLANT:

     SCARIA MATHEW @ APPACHAN, AGED 81 YEARS, S/O.MATHEW, KOOTTAKALLIL
     HOUSE, ELAMDESOM KARA, ELAMDESOM BHAGOM, VELLIYAMATTOM VILLAGE,
     IDUKKL DISTRICT

RESPONDENT/RESPONDENT:

     STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
     KERALA, ERNAKULAM - 682031


     Application praying that in the circumstances stated therein the

High Court be pleased to suspend the sentence passed against the

petitioner   in   S.C.No.26/2023    of   the   Fast   Track   Special   Court   ,

Idukki,Painavu dated 21.02.2024 , pending disposal of the above Criminal

Appeal.



     This Application coming on for orders upon perusing the application

and upon hearing the arguments of   M/S.M.RAMESH CHANDER (SR.),SIJI ANTONY,

P.M.JOSEPH, P.S.SAJEEV (CHIRAYIL), MANOJ GEORGE, BALU TOM, 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.3 of 2024
                               in
                 Crl.Appeal No. 416 of 2024
   -----------------------------------------------------------
            Dated this the 3rd day of May, 2024


                           ORDER

The appellant filed this petition 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 Crl.M.A. No.3 of 2024 in 2 Crl.A.No.416 of 2024 ostracisation, the victim girl, who was aged only 15 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, the petitioner is not entitled to get an order to suspend the sentence.

3. Heard the learned Senior Counsel for the appellant and the learned Public Prosecutor.

4. The petitioner was convicted for the offence punishable under Sections 376(2)(n), 376(3) and 450 of the Indian Penal Code, 1860 and under Section 3(a) r/w 4(2), 3(b) r/w 4(2) and 5(l) 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 as follows:

The father of the victim expired a few years ago. Her mother left the victim and eloped with another person abandoning the petitioner and her sibling. She was residing along with her relatives at their house. The petitioner was Crl.M.A. No.3 of 2024 in 3 Crl.A.No.416 of 2024 aged 80 years. He was running a shop nearby. At about 6.30 a.m. on a day in June, 2021 the petitioner trespassed into the said house and subjected the victim to penetrative sexual assault. On a few occasions subsequently also the petitioner did similar sexual acts on the victim. 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. It is pointed out that the victim was lodged in a rescue home from December, 2021 onwards, but her version in court was that she was subjected to sexual assault by the petitioner in June, 2022, which itself is enough to reject the case of the prosecution. Another case of similar nature was initiated against another person and even while the victim gave statement under Section 164 of the Code in that case, she did not mention about this incident. That again is a reason to discard the case of the prosecution. The delay of more than an year is not properly explained. When there is absolutely Crl.M.A. No.3 of 2024 in 4 Crl.A.No.416 of 2024 no evidence than the totally inconsistent version of the victim, the conviction can no way be sustained. Therefore, the conviction is based on unreliable evidence, and the petitioner is entitled to get the sentence suspended.

7. The trial court considered the contentions of the petitioner concerning the delay and discrepancies in the evidence of the victim. Irrefutably, an orphan girl, the victim while residing along with her relatives, had to suffer such unbearable tormentation. From the version of the victim, it is seen that the petitioner was a person in whom she had faith and confidence. On account of the sexual exploitation, the victim had to be lodged in a Children's Home. The delay and discrepancies in her evidence are to be appreciated in the above background. The findings of the trial court in favour of the prosecution in the above regard cannot be said to be totally incorrect. It is also seen that the victim had put to much psychological setbacks and she was constrained for an attempt to commit suicide. Taking all those aspects into account, I am unable to agree with the contention of the learned Senior Counsel for the petitioner. Having gone Crl.M.A. No.3 of 2024 in 5 Crl.A.No.416 of 2024 through the judgment, I am of the view that the findings of the trial court leading to the conviction of the petitioner are prima facie correct.

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 Uttar Pradesh [(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;

1. Whether the case presented by the prosecution and accepted Crl.M.A. No.3 of 2024 in 6 Crl.A.No.416 of 2024 by the trial court can be said to be in a case in which, ultimately, there is a chance for acquittal;

2. 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

3. 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 21.02.2024. Considering the circumstances in which the offence was committed and the aspects pointed out above, I am of the view that the petitioner does not deserve any leniency. The age of the petitioner or that he suffers from health issues are not sufficient to suspend execution of the sentence at this stage. 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 03-05-2024 /True Copy/ Assistant Registrar