Dasan vs State Of Kerala
2022 Latest Caselaw 1862 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                  THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
            Friday, the 18th day of February 2022 / 29th Magha, 1943

                 CRL.M.APPL.NO.2/2020 IN CRL.A NO. 735 OF 2020

            SC NO. 346/2013 OF ADDITIONAL SESSIONS COURT I, KOTTAYAM

PETITIONER/APPELLANT:

     DASAN, AGED 58 YEARS, S/O. RAGHAVAN, PALAPPALLY VEEDU, KAKKOOR P.O,
     VETTUKUZHI BHAGOM, NATTAKOM VILLAGE, KOTTAYAM DISTRICT.

RESPONDENT/RESPONDENT:

     STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
     KERALA, ERNAKULAM 682 031

     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence imposed on the
appellant in S.C.No. 346/2013 on the files of the Additional District &
Sessions Court, Kottayam dated 24.02.2018, pending disposal of this Appeal
     This Application coming on for orders upon perusing the application
 and upon hearing the arguments of G.SUDHEER, SRI. PAUL JOHN, Advocates
for the petitioner and of the PUBLIC PROSECUTOR for the respondent, the
court passed the following:




    (PTO)
                    DR.KAUSER EDAPPAGATH, J.
                  ====================
                           Crl.M.A.No.2/2020
                                   in
                       Crl.Appeal No. 735/2020
                   ==================
              Dated this, the 18th day of February, 2022


                               ORDER

This is an application for suspending the execution of

sentence.

2. The petitioner stands convicted for the offence

punishable u/ss. 376 and 506(i) of IPC and S.23 of the Juvenile

Justice (Care and Protection of Children) Act, 2000 (for short, the JJ

Act). He is sentenced to undergo rigorous imprisonment for 10 years

and to pay a fine of `50,000/- u/s 376 of IPC, rigorous imprisonment

for one year u/s 506(i) of IPC and fine of `10,000/- u/s 23 of the JJ

Act.

3. I have heard Sri.Paul John, the learned counsel for the

petitioner/appellant and Smt.Sheeba Thomas, the learned Public

Prosecutor.

4. The learned Public Prosecutor has filed a detailed

objection. She has also seriously opposed the application.

5. The learned counsel for the petitioner submitted that the

conviction based on the uncorroborated testimony of the victim, that Crl.M.A.No.2/2020 in

too full of contradictions and omissions, is erroneous. The

learned counsel further submitted that there is delay of four

months in lodging the FIR. The counsel also added that the

medical evidence does not support the oral testimony of the

victim.

6. The victim is none other than the daughter of the

petitioner. The victim was aged 12 years when the alleged

offence was taken place. The prosecution relied on the evidence

of the victim (PW7), the evidence of the mother of the victim

(PW3) and the evidence of the Doctor (PW1) to prove its case.

The court below also believed their testimony.

7. Paragraph 12 of the judgment deals with the evidence

of the victim. It would show that the victim who was aged only 13

years was repeatedly raped by her own father. She specifically

deposed that while she was residing along with his father and

mother, since mother was under regular medication for mental

illness, she would always be in deep sleep during night hours and

at that time, the petitioner used to remove her dress and commit

sexual act on her. She specifically deposed that on the first day,

she ran away from the house and the petitioner followed her,

brought her back and again attempted to commit rape on her.

Crl.M.A.No.2/2020 in

She further stated that thereafter on four to five times in a period

of one year, she was sexually assaulted by the petitioner. She

also stated that in November, 2012, the petitioner took her to a

lodge in Kumaly, stayed with her and there also she was

subjected to rape. The court below believed this version. To

support the oral testimony of the victim, her own mother also

gave evidence as PW3. PW1 Doctor on examination found that

the hymen of the victim was torn off and from the clinical feature,

she opined that rape was committed. I am not commenting on

these evidence at this stage. However, the court below accepted

the evidence of PWs 1 to 3 and come to the conclusion that the

rape as alleged has been committed by the petitioner. The

evidence of the victim would further show that the petitioner

threatened the victim that she would be killed if the factum of

rape was disclosed to anybody. The offence alleged against the

petitioner and found proved by the court below is serious and

heinous in nature. I am not inclined to suspend the execution of

sentence. Accordingly, the Crl.M.A. is dismissed.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE Rp

18-02-2022 /True Copy/ Assistant Registrar