Saji Paulose @ Saja Paul vs The State Of Kerala
2021 Latest Caselaw 23562 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MRS. JUSTICE M.R.ANITHA
          Tuesday, the 30th day of November 2021 / 9th Agrahayana, 1943

                 CRL.M.APPL.NO.1/2021 IN CRL.A NO. 338 OF 2021

        S.C.No.59/2015 of the Special Court under POCSO Act, Thodupuzha

PETITIONER/APPELLANT

        SAJI PAULOSE @ SAJA PAUL, AGED 44 YEARS, S/O. PAULOSE,
        ATHITHOTTATHIL HOUSE, PADIKKAPPU KARA, PADIKKAPPU BHAGOM,
        MANNAMKANDAM VILLAGE,

RESPONDENT/RESPONDENT

        THE STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE,
        MUNNAR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
        ERNAKULAM - 682031.


     Petition praying that in the circumstances stated therein High Court
be pleased to suspend the sentence imposed as per judgment dated 29/3/2021
in S.C.No.59/2015 on the files of the Special Court under POCSO Act,
Thodupuzha in Crime No.104/2014 of Adimaly Police Station, pending
disposal of the above Criminal Appeal.




     This petition coming on for orders upon perusing the petition and
upon hearing the arguments of SRI. BIJU .C. ABRAHAM, Advocate for the
petitioner and of PUBLIC PROSECUTOR for the respondent, the court passed
the following:




p.t.o
                            M.R.Anitha, J.
                           ----------------------
                        Crl.M.A.No.1 of 2021
                                    in
                        Crl.A.No.338 of 2021
                         --------------------------
                    Dated : 30th November, 2021

                               ORDER

1. This petition has been filed under Section 389 Cr.P.C to suspend the

sentence passed against the petitioner in S.C.59/2015 on the file of

Special Court under the PoCSO Act, Thodupuzha, by which the

petitioner/appellant was convicted and sentenced under Section 4 and

8 of the Protection of Children from Domestic Violence Act (PoCSO

Act), Section 3(1) (xi) of the Schedule Castes and Scheduled Tribes

(Prevention of Atrocities Act) (in short SC/ST(POA) Act), and under

Sections 354 and 376 IPC, and he has been sentenced to undergo

rigorous imprisonment for ten years and to pay fine of Rs.50,000/- in

default to undergo imprisonment for two months under section 4,

rigorous imprisonment for three years under Section 8, rigorous

imprisonment for one year under Section 354 IPC and to pay fine of

Rs.5000/- in default to undergo imprisonment for 15 days and further

to undergo six months rigorous imprisonment for committing the Crl.A.338/21

offence punishable under Section 3(1)(xi) of the SC/ST (POA) Act

and to pay fine of Rs.5000/- in default to undergo rigorous

imprisonment for 15 days.

2. Prosecution allegation is that on 21.1.2014, at about 8.00 pm

accused procured presence of PW1, the victim minor girl, and

PW2 in a tapioca plantation situated near the house at PW2, and

he compelled PW1 and PW2 to consume liquor and thereafter he

committed penetrative sexual assault upon PW1. On an earlier

occasion also, accused sexually assaulted PW1 in a rubber estate

by grabbing on her breast and different parts of her body.

Similarly one year prior to 21.1.2014, petitioner raped PW2 at her

house bearing NO.II/249 of Adimali Grama Panchayat after serving

alcohol of one Guruswamy. It is also alleged that the offence were

committed by the accused, a person from upper caste

Community on the ground that the victim belongs to Scheduled

Tribe community.

3. PW1 to 14 were examined, Exts.P1 to P33 were marked and

Ext.X1 and MO1 to 14 were also marked. There was no defence

evidence. After hearing both sides, the learned Sessions Judge

convicted and sentenced the accused as aforementioned.

4. According to the learned counsel for the petitioner, this is a falsely Crl.A.338/21

foisted case against the petitioner with a long delay and there is

illicit relationship between the victim girl and one Ramesh and

that has been admitted by the victim and PW2. He would also

contend that scientific evidence also failed to prove the

involvement of the accused since DNA test could not be

conducted. Further, he would contend that the prosecution case

itself is that the accused was called over the phone of PW2 on the

alleged day. No attempt was made by the prosecution to seize the

mobile phone and send it for examination and collect the call

details. So according to him, petitioner has been convicted by the

learned Sessions Judge without sufficient materials to prove his

guilt. It is true that PW1 the victim would admit during cross-

examination in page No.6 that Ramesh is her uncle's son and he

is aged about 22-23 years at the time of her examination and she

had sexual contact with the said Ramesh. Further it was asked

whether Ramesh was called by the police. She pleaded ignorance

but states about hearsay knowledge about the same and

according to her, she was in hostel during that time. PW2, during

cross examination admitted that Ramesh, son of Gopi was caught

by the police alleging that he raped the victim. Anyway, sexual

contact of the victim girl with the said Ramesh will not prima facie Crl.A.338/21

exonerate the culpability of the petitioner. That is more so

because, it has come out in evidence that the victim is a member

of schedule tribe. It has come out from her evidence that her

mother died while she was studying in 7 th standard and after that

her father abandoned herself and her siblings and PW2 is a sister

of a distant relative of her mother. She further categorically stated

that the incident occurred on 21.1.2014. At that time, accused

called PW2 over phone and asked her and PW2 to reach tapioca

plantation situated just nearby. It is also stated by her that if they

did not go there, accused will come to their house and create

issues and thereafter, she went along with PW2 to her house and

went to tapioca plantation. There he gave some liquor like black

tea to the victim as well as to PW2 and she felt giddiness and

vomited also. Accused undressed by removing his dhoti and she

was made to lie on his dhoti and thereafter she was raped and

she could not resist because she was not conscious.

5. A mere glance through the evidence of PW1, minor victim, would

prima facie establish inhuman and barbarious act of the accused

in raping a minor victim after giving liquor to her and making her

unconscious. She is also a member of schedule tribe. She also

describes that about 2 to 3 months before this incident, accused Crl.A.338/21

asked PW2 to take the victim to rubber plantation and PW2 went

to the rubber estate along with the victim and there also the

victim was sexually assaulted.

6. The victim was examined by the doctor and she was also

admitted in the hospital for 2 to 3 days and gave the statement to

the police.

7. The learned Public Prosecutor also bring my attention to the

evidence of PW6, the doctor who examined the victim and the

doctor categorically stated that there was evidence of vaginal

penetration. In corroboration with the evidence of PW1, the

evidence of PW2 also was adduced by the prosecution to prima

facie support the case. PW4, the aunt of PW1, who

accommodated PW1 after the death of her mother was also

examined and she also stated that one day in January, 2014 at

about 7.00 pm, PW2 came to their house for watching TV, while

she was praying and after prayer she noticed that PW1 and 2

were not there in the house and she went to the house of PW2 in

search of PW1 and family members were also not aware where

PW2 had gone with PW1 and they went in search of PW1 and 2. At

about 10.00 pm, when she reached the house, she saw PW2 and

1 in deep sleep. On pouring water over their face they revealed Crl.A.338/21

about the intoxication after consuming liquor. Police was informed

and PW1 and 2 were taken to hospital.

8. PW6 is the doctor who examined PW1 and 2 on 22.1.2014. Ext.P7

is the certificate with respect to PW1 and Ext.P30 is the chemical

analysis report of vaginal smear and swamp proved presence of

human spermatozoa. That was corroborated with the evidence of

PW1.

9. On an evaluation of the evidence, oral and medical, adduced from

th side of the prosecution, there are prima facie material sufficient

to justify the conviction arrived at by the learned Sessions Judge.

So the fact that the mobile phone of PW2 was not seized or the

call details on that particular day was not collected to prove that

accused had called PW2 and thereafter they went to the tapioca

plantation etc., is not to be weighed much at this stage. The fact

that she had sexual contact with one Ramesh, which is admitted

by PW1, is also not relevant to disprove the culpability of the

petitioner with respect to this incident at this stage. On a close

evaluation of the judgment passed by the learned sessions Judge

also, I am of the view that, a detailed discussion has been made

with respect to the facts and circumstances and the evidence

adduced by the learned Sessions Judge and I do not find any Crl.A.338/21

perversity or irregularity in the impugned judgment passed by the

learned Sessions Judge.

10. In this context, it is relevant to quote Preet Pal Singh v. State

of Uttar Pradesh and Another (2020 (8) SCC 645 = AIR

2020 SC 3995 = 2020 KHC 6484) the Hon'ble Supreme Court

made a detailed discussion with regard to the grant of bail under

Section 439 Cr.P.C in the case of pre-trial arrest and suspension of

sentence under Section 389 Cr.P.C after post conviction. It has

been held therein that while considering bail application under

Section 439 Cr.P.C there may be a presumption of innocence

which is a fundamental postulate of criminal jurisprudence and

Courts may be liberal depending on the facts and circumstances

of the case on the principle that the bail is the rule and jail is an

exception. However, in the case of post conviction bail, by

suspension of operation of the sentence, there is a finding of guilt

and the question of presumption of innocence does not arise. Nor

is the principle of bail being the rule and jail an exception

attracted, once there is conviction upon trial. It is also held that

the Courts considering the application for suspension of sentence

and the grant of bail is to consider the prima facie merits of the

appeal, coupled with other factors. There should be strong Crl.A.338/21

compelling reasons for grant of bail, notwithstanding an order of

conviction, by suspension of sentence, and this strong and

compelling reason must be recorded in the order granting bail

notwithstanding an order of conviction. Paragraph 39 of the said

judgment is relevant in this context to be extracted, which reads

thus :

"In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re- assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

11. While considering an application for suspension of sentence under

Section 389 Cr.P.C. this Court is not expected to re-appreciate and

re-assess the evidence and come to a different conclusion from

that has been arrived at by the Sessions Court. That can be done

only at the time of final hearing. What this Court is expected to

analyze at this stage is whether the conclusion and findings

arrived at by the trial Court is perverse or illegal. A detailed Crl.A.338/21

discussion of evidence and facts and circumstances is also not

expected to be done by this Court at this stage.

12. The learned counsel could not bring out any material to prima

facie show that the conviction arrived at is perverse or illegal.

Hence I do not find any reason to suspend the execution of

sentence passed against the petitioner.

13. In the result, petition is found to be devoid of any merit and hence

dismissed.

Sd/-

                                                   M.R.Anitha, Judge



    Mrcs/27.11




30-11-2021                     /True Copy/                       Assistant Registrar