Kerala High Court
Xxxxxx vs State Of Kerala on 23 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Friday, the 23rd day of December 2022 / 2nd Pousha, 1944
CRL.M.APPL.NO.2/2022 IN CRL.A NO.1356 OF 2022
SC 400/2019 OF FAST TRACK SPECIAL COURT, PATHANAMTHITTA
PETITIONER/APPELLANT/SOLE ACCUSED:
XXXX
RESPONDENT/RESPONDENT/STATE:
THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction and sentence imposed by
the judgment dated 30.04.2022 in S.C.No.400/2019 of the Fast Track Special
Court, Pathanamthitta, in the interest of justice..
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S. MANU RAMACHANDRAN, M.KIRANLAL,
R.RAJESH (VARKALA), SAMEER M NAIR, DHANALAKSHMI V.K., GEETHU KRISHNAN,
SAILAKSHMI MENON, Advocates for the petitioner and of the PUBLIC
PROSECUTOR for respondent, the court passed the following:
P.T.O.
DR.KAUSER EDAPPAGATH, J
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Crl.M.A No.2 of 2022
in
Crl.A No.1356 of 2022
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Dated this the 23rd day of December, 2022
O R D E R
This is an application to suspend the execution of sentence.
2. The petitioner is the accused. He stands convicted and
sentenced to undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.10,000/- for the offence punishable
under Section 10 r/w 9(m) of the Protection of Children from
Sexual Offences Act (for short 'the POCSO Act'). He was also
sentenced to undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.10,000/- under Section 10 r/w 9(n) of
the POCSO Act. He was further sentenced to undergo rigorous
imprisonment for a period of one year under Section 75 of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Crl.M.A No.2 of 2022 in
3. I have heard Sri.Manu Ramachandran, the learned
counsel for the petitioner and Smt.O.V.Bindu, the learned Public
Prosecutor.
4. The learned Public Prosecutor has filed a detailed
objection and she has strongly opposed the application.
5. The learned counsel for the petitioner submitted that
there is a difference as to the alleged date of the incident in the
FIS and in the evidence. The learned counsel further submitted that
the victim omitted to state anything regarding the approximate
period of alleged sexual assault. The learned counsel also submitted
that even though the younger brother of the victim allegedly
witnessed the incident, he was not made a witness. The learned
counsel also submitted that the case of the prosecution that there
was penetrative sexual assault was negatived by the medical
evidence. These are strong circumstances to doubt the prosecution
version, submitted the counsel.
6. Here is a case where a 11 year old girl was repeatedly
sexually assaulted by her own father by inserting finger into her
Crl.M.A No.2 of 2022 in
vagina, pressing on her breast and also lying over her body. The
victim has specifically spoken about the sexual assault even though
there was some inconsistency with regard to the date and period of
the alleged sexual act. A child aged 11 years who was subjected to
sexual assault by her own father is not expected to give statement
regarding the exact period of sexual assault or to give evidence
about the same. The evidence given by the victim as to the sexual
assault made by her own father is consistent and reliable. It is
settled that so far as the sexual assault is concerned, if the
evidence of the victim was reliable, the conviction can be based
even without corroboration. It is true that the doctor deposed that
there was no evidence of penetrative sexual assault. The doctor
came to the said conclusion on the basis of the evidence that
hymen was found to be intact. But, the child categorically deposed
that the father inserted finger into her private parts. There is
nothing to disbelieve the same. Considering the gravity of the
offence that a 11 year old girl was repeatedly sexually assaulted by
her own father, I am not inclined to suspend the execution of
Crl.M.A No.2 of 2022 in
sentence. Accordingly, the application stands dismissed.
Sd/-
DR.KAUSER EDAPPAGATH
JUDGE
ab
23-12-2022 /True Copy/ Assistant Registrar
